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What Does James Boyle Think We Should Do in Order That, for the Commons of Intellectual Culture – Art, Literature, Music, but Also Science and Technology – the Tragedy Predicted by Hardin Does Not Occur?

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Today, warns author James Boyle, huge swaths of the world’s artistic and cultural heritage – books, photographs, films, musical recordings – are locked up in governmental and private libraries and unavailable for distribution to the general public. Why? No one can identify the copyright holders or their heirs to obtain permission to copy them. The number of such “orphan works” is staggering: more than 95% of all books ever printed, and equally high percentages of film and music. Should the government wall off these potential treasures to protect the rights of nameless individuals, most of whom either don’t care or are dead? Boyle, an expert on intellectual property law, thinks not, and he explains why in this heated discussion about trends in his field.

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Boyle also discusses the “Internet Threat”: that computers and the Internet will make copying and redistribution so easy that new rights must be granted to copyright holders to prevent serious loss of business. Digital Rights Management falls in this category: companies must be granted a right not only to monopolize distribution of their work but to prevent reuse, under fair use or not, of work already sold to a paying customer

Media companies describe DRM-breaking tools as burglary tools, while advocates point out that they’re breaking into works they already own. Boyle says the DMCA’s prohibitions on DRM-breaking are a new, and constitutionally unfounded, right granted to media companies: there is no similar scheme whereby I can put a mark on a book to say “you may not copy this, even under fair use”, so why should breaking DRM be any different? (As an aside, Boyle’s comments on DeCSS and movie piracy are amusing. He quotes from the decision in Universal City Studios, Inc. v. Reimerdes, a 2000 court case against DeCSS, a description of the process of movie piracy: half an hour decrypting the DVD, 10 to 20 hours synchronizing the compressed audio and video, and six hours to transfer it to someone else over IRC. Compared to “renting the same movie at Blockbuster for $3”, Boyle thinks, this is no threat. Blockbuster’s shareholders would beg to differ, as would The Pirate Bay.) Similarly, some companies tried to use copyright law in lieu of patent or trademark law, preventing competitors from making garage door remotes compatible with their openers or music stores compatible with their iPods. The courts looked down on this; while it may count as circumvention, there certainly was no intent to redistribute copyrighted works or otherwise violate the rights of the rightsholders. Circumvention is followed with a discussion of copyright in music, where nearly every work is a derivative work: borrowing melodies, arrangements, styles, and even portions of recordings is an entirely normal part of the creative process. But I’m not very interested in the music world (to my detriment, perhaps), so I skipped past much of this discussion. Next, Boyle covers open-source software and the Creative Commons movement, which has somehow produced high-quality works without any profit incentive whatsoever, and uses copyright law to enforce inclusivity (through copyleft), rather than to exclude uses. The existence of open-source software and free culture suggests a flaw in the usual arguments for intellectual property: quite a lot of intellectual property needs no profit motive to be created.

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The antimonopolistic critique of intellectual property offers, of course, a useful set of correctives to our current steroid-fueled expansion. But what we really do not see for nearly 150 or 200 years is any mention of something called “the public domain.” Instead, there is an assumption that what is not covered by intellectual property will be “free,” a term that is tossed around just as loosely by the philosophers I have mentioned as it is by the contemporary philosophers of the Internet. What do we mean by “free”? No cost? Easily available? Uncontrolled by a single entity? Available with a flat fee on a nondiscriminatory basis? “Free” as in “free speech” or “free” as in “free beer,” as Richard Stallman famously observed? Although there are a lot of definitions, it is not very clear what norm of freedom we are trying to instantiate. Now, over the past 25 to 30 years, one sees in debates about intellectual property an affirmative mention of the public domain

The Supreme Court said that it would be unconstitutional to withdraw material from the public domain, or to restrict access to that which is already available. Academics, including my colleagues David Lange and Jerry Reichman, have written very interestingly about the role and function of the public domain, and I have added a little bit to that discussion myself. Paul David, Suzanne Scotchmer, and others have also contributed to these discussions in fascinating ways. But I think they would all agree that when we talk about the “public domain,” it is not quite clear how that term is defined. What is the public domain? Is material made available through the fair-use privilege under copyright law part of the public domain or not? One could debate that. Is material that is in the public domain only that material which is entirely uncovered by intellectual property, such as a book whose copyright term has expired? Or can it include the little chunk of unprotected material within a work that is otherwise covered by intellectual property, such as the ideas or facts underlying protected expression? We do not have a very good notion. How does the public domain function? We really do not know that very well either (James Boyle, 2001). The intellectual property system we have inherited had a strategy of braiding a thin layer of intellectual property rights around a public domain of ideas and facts, which could never be owned. But one could own the expression or the invention made out of those ideas and facts, leaving the ideas above and facts below in the public domain for the next generation to build on. That actually sounds like an interesting strategy of a mixed public domain and property system (James Boyle, 2011). However, this system is one that we are busily demolishing through expanding intellectual property protections, without, so far as I can tell, either good empirical evidence that it is necessary to change its fundamental premises or good economic models that the changes will work.

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In essence, the concept of the environment allows, at its best, a kind of generalized reflection on the otherwise unquestionable presuppositions of a particular mode of life, economy, and industrial organization. At their best, the commons and the public domain can do the same in helping us to reimagine creation, innovation, and speech on a global network. And this seems particularly important today.

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James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” 66 Law & Contemp. Probs. (Winter/Spring 2003)

James Boyle, “The Second Enclosure Movement?” Duke Law School Conference on the Public Domain Webcast Archive (Nov. 9, 2001)

“Tensions between Free Software and Architectures of Control” (Apr. 5, 2001)

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