Fencing off ideas: Enclosure & the disappearance of the public domain

Daedalus

Volumn 131, Issue 2, 2002, Pages 13-25

  Boyle, James ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 1842520825     PISSN: 00115266     EISSN: 15486192     Source Type: Journal    
DOI: None     Document Type: Article

References (13)

1. The analogy to the enclosure movement has been too succulent to resist. To my knowledge. Ben Kaplan, Pamela Samuleson, Yochai Benkler, David Lange, Christopher May. and Keith Aoki have all employed the trope, as I have myself on previousoccasions. For a partic ularly thoughtful and careful development of the parallelism see Hannibal Travis, "Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment, Berkeley Tech. LaivJournal 15 (2) (Spring 2000): 7
2. The differences are particularly strong in the arguments over "desert" - are these property rights deserved, or are they simply violations of the public trust, privatizations of the com mons? For example, some would say that we never had the same traditional claims over the genetic commons that the victims of the first enclosure movement had over theirs; this is more like newly discovered frontier land, or perhaps even privately drained marshland, than it is like well-known common land that all have traditionally used. In this case, the enclosers can claim (though their claims are disputed) that they discovered or perhaps simply made usable the territory they seek to own. The opponents of gene patenting, on the other hand, turn more frequently than the farmers of the eighteenth century to religious and ethical arguments about the sanctity of life and the incompatibility of property with living systems. These arguments, or the appeals to free speech that dominate debates over digital intellectual property, have no precise analogue in debates over hunting or pasturage, although, again, there are common themes. For example, we are already seeing nostalgic laments of the loss of the immemorial rights of Internet users. At the same time, the old language of property law is turned to this more evanescent subject matter; a favorite article title is "The Ancient Doctrine of Trespass to Websites" (I. Trotter Hardy, "The Ancient Doctrine of Trespass to Web Sites," Journal of OnlineLaw [ 1996]: art. 7).
3. Sanford J. Grossman and Joseph E. Stiglitz, "On the Impossibility of Informationally Efficient Markets," American Economic Review 70 (1980): 393.
4. For a more technical account, see James Boyle, "Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property," Vanderbilt Law eview 536 (2000): 2007, .
5. Glyn Moody, The Rebel Code: TlielnsideStory of Linux and the Open Source Revolution (Cambridge, Mass.: Perseus Pub., 2000);
6. Peter Wayner, Free for All: How Linux and the Free Software Movement Undercut the high -tech Titans (New York: HarperBusiness, 2000).
7. See also Eben Moglen, "Anarchism Triumphant: Free Software and the Death of Copyright," in the online journal First Monday (1999), .
8. Proprietary, or "binary only," software is generally released only once the source code has been compiled into machine-readable object code format, a form that is impenetrable to the user. Even if you were a master program mer, and if the provisions of the Copyright Act, the appropriate licenses, and the DMCA did not forbid you from doing so, you would be unable to modify commercial proprietary soft ware so as to customize it for your needs, remove a bug, or add a feature, Open.source programmers say disdainfully that it is like buy ing a car with "the hood welded shut,"
9. See Yochai Benkler, "Coase's Penguin, or, Linux and the Nature of the Firm," October 2001, unpublished draft, . For a seminal statement relying on the innate human love of creativity as the motiva tion, see Moglen, "Anarchism Triumphant." "Ellncentives" is merely a metaphor, and as a metaphor to describe human creative activity it's pretty crummy. I have said this before, but the better metaphor arose on the day Michael Faraday first noticed what happened when he wrapped a coil of wire around a magnet and spun the magnet. Current flows in such a wire, but we don't ask what the incentive is for the electrons to leave home. We say that the cur rent results from an emergent property of the system, which we call induction, The question we ask is 'what's the resistance of the wire?' So Moglen's Metaphorical Corollary to Faraday's Law says that if you wrap the Internet around every person on the planet and spin the planet, software flows in the net work. It's an emergent property of connected human minds that they create things for one another's pleasure and to conquer their uneasy sense of being too alone. The only question to ask is, what's the resistance of the network? Moglen's Metaphorical Corollary to Ohm's Law states that the resistance of the network is directly proportional to the field strength of the 'intellectual property' system. So the right answer to the econodwarf is, resist the resistance."
10. This point has been ably made by, inter alia, Pamela Samuelson, Jessica Litman, Jerry Reichman, Larry Lessig, and Yochai Benkler. Each has a slightly different focus and mphasis on the problem, but each has pointed out theimpediments now being erected to istrib uted, nonproprietary solutions. See also Boyle, "Cruel, Mean, or Lavish?"
11. Some of the legislation involved is also con stitutionally dubious, under the First Amend ment and Art 1 sec. 8 ci. 8 of the Constitution, but that is a point for another paper.
12. The full version is given in Boyle, "Cruel, Mean, or Lavish?"
13. An expanded version of this argument can be found in "A Politics of Intellectual Property: Environmentalism for the Net," Duke Law Journal 47(1) (1997): 87,.