Cultural environmentalism and beyond

Law and Contemporary Problems

Volumn 70, Issue 2, 2007, Pages 5-22

  Boyle, James ^a  

^a DUKE UNIVERSITY   (United States)

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EID: 35048822394     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (24)

1. The fine papers by Siva Vaidhyanathan, The Anarchist in the Coffee House: A Brief Consideration of Local Culture, the Free Culture Movement; and Prospects for a Global Public Sphere, 70 LAW & CONTEMP. PROBS. 205 (Spring 2007),
2. and Mark Lemley, Should A Licensing Market Require Licensing?, 70 LAW & CONTEMP. PROBS. 185 (Spring 2007), respectively.
3. MICHEL FOUCAULT, Two Lectures, in POWER/KNOWLEDGE: SELECTED INTERVIEWS AND OTHER WRITINGS, 1972-1977, at 78-79 (Colin Gordon ed. & Colin Gordon et al. trans., 1980).
4. See ARTHUR C. PIGOU, Divergences Between Marginal Social Net Product and Marginal Private Net Product, in THE ECONOMICS OF WELFARE 173 (4th ed. 1978) ("The source of the general divergences between the values of marginal social and marginal private net product that occur under simple competition is the fact that, in some occupations, a part of the product of a unit of resources consists of something, which, instead of coming in the first instance to the person who invests the unit, comes instead, in the first instance (i.e. prior to sale if sale takes place), as a positive or negative item, to other people."), available at http://www.econlib.org/Library/NPDBooks/Pigou/pgEW1.html. Ironically, so far as I can find, Pigou does not use the word "externality."
5. As always, Jessica Litman provides the clearest and most down-tow-earth example. Commenting on Rebecca Tushnet's engrossing paper on fan fiction, Rebecca Tilshnet, Payment in Credit: Copyright Law and Subcultural Creativity, 70 LAW & CONTEMP. PROBS. 135 (Spring 2007), Litman describes copyright's "balance between uses copyright owners are entitled to control and other uses they simply are not entitled to control."
6. Jessica Litman, Creative Reading, 70 LAW & CONTEMP. PROBS. 175, 175 (Spring 2007). That balance, she suggests, is not bug but feature. The spaces of freedom that exist in the analog world because widespread use is possible without copying are neither oversights nor temporarily abandoned mines of monopoly rent just waiting for a better technological-retrieval method. They are integral parts of the copyright system.
7. The blindness to raw materials does not always lead to overprotection, of course. In some cases, I argued, the lens of authorship might symmetrically lead us to "underprotect" or undervalue resources that are used as inputs for intellectual property - plant species, or ethnobotanical knowledge, for example - but which do not fit intellectual property law's requirement of individual, transformative activity. My argument was that this under- and overinclusiveness had costs-both in terms of efficiency or innovation, and in terms of justice - distributive and otherwise. JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION OF THE INFORMATION SOCIETY 119-43, 192-200 (1996). These parts of the analysis have attracted less attention.
8. Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of "Authorship," 41 DUKE L.J. 455 (1991); THE CONSTRUCTION OF AUTHORSHIP: TEXTUAL APPROPRIATION IN LAW AND LITERATURE (Martha Woodmansee & Peter Jaszi eds., 1994)
9. MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993); Martha Woodmansee, The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the "Author," 17 EIGHTEENTH-CENTURY STUD. 425 (1984).
10. See also James Boyle, A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading, 80 CAL. L. REV. 1413 (1992) (noting prior copyright scholarship);
11. BOYLE, supra note 5 (discussing prior intellectual-property scholarship).
12. Tushnet, supra note 4.
13. ); BOYLE, supra note 5, at 56-59, 156.
14. These are points that Julie Cohen's commentary makes with particular force. Julie E. Cohen, Network Stories 70 LAW & CONTEMP. PROBS. 91 (Spring 2007). And as Cohen stresses, the only way to decide whether we wish to accept or to criticize the claims of the telecommunications companies is to "do the science" - to investigate empirically and clarify normatively the social goals and community formation that is enabled by a particular network structure. Id. at 91.
15. Crawford, supra note 8, at 53.
16. BOYLE, supra note 5.
17. This is a point worth stressing. We do not have a single, unitary public domain, a single commons. There are competing and overlapping ones. See James Boyle, Foreword: The Opposite of Property?, 66 LAW & CONTEMP. PROBS. 1, 29-32 (Winter/Spring 2003) [hereinafter The Opposite of Property?]. Definitions vary in their degree of "granularity." Does the public domain, for example, include only complete works, completely free, or does it include all the circumstantial privileges and limitations on intellectual-property rights - such as fair use, for example? Definitions also vary in the degree to which they focus on legal status or on ability to gain access - either without permission, or sometimes without fee. Thus, although we do need a theory of the public domain, our goal should not be "reifying the negative" (the critical phrase used by Edward Samuels to describe the futility of a theory of the public domain).
18. See James Boyle, The Second Enclosure Movement and the Construction of the Public Domain, 66 LAW & CONTEMP. PROBS. 33, 69-72 (Winter/Spring 2003) (citing Edward Samuels, The Public Domain in Copyright Law, 41 J. COPYRIGHT SOC'Y 137, 150 (1993)). Yes, we do need a better theory of the public domain, rather than just a laundry list of exceptions and limitations, but "better theory" does not equate to "single definition." Our goal should be to understand the goals of each particular definition of the public domain - the hopes and fears around which it is built, the way a particular public domain is actually the mirror image of the conception of intellectual property to which it responds, both formally and in terms of possible economic dysfunction. Just as we use the term property appropriately in very different ways, depending on our goal, so, too, with the public domain.
19. See Boyle, The Opposite of Property?, supra, at 2 (explaining the different conceptions of commons). Pamela Samuelson's fine paper is particularly instructive on this point. Pamela Samuelson, Enriching Discourse on Public Domains, 55 DUKE L.J. 783 (2006).
20. To give a practical example, imagine you are concerned by the effects of patents and copyright over software. You might take the approach that the rights should be curtailed or limited. The public domain should be preserved or expanded. But you also might take the approach that some of the practical problems could be solved by a "commons" - by using intellectual-property rights and licenses to create a mutually reinforcing zone of freedom. Free and open-source software under the General Public License is the obvious example. That software is not in the public domain. Far from it - the enforceability of the license depends on the underlying copyrights to the code. But the software is being developed in a commons in which each participant is required to contribute their new contributions back into the common pool. For a different and more extended example, see Arti Rai & James Boyle, Synthetic Biology: Caught Between Property Rights, the Public Domain and the Commons, PLOS BIOLOGY (forthcoming), available at http://eprints.law.duke.edu/archive/ 00001593/01/Synthetic_Biology_PLOS_1031.pdf.
21. Carol M. Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 711 (1986).
22. Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L.J. 369, 375 (2002);
23. see also YOCHAI BENKLER, THE WEALTH OF NETWORKS (2006) (explaining the importance of "commons-based peer production").
24. ELINOR OSTROM, GOVERNING THE COMMONS: THE EVOLUTION OF INSTITUTIONS FOR COLLECTIVE ACTION (1990).