The Second Enclosure Movement and the Construction of the Public Domain

James Boyle

The law locks up the man or woman
Who steals the goose from off the common
But leaves the greater villain loose
Who steals the common from off the goose.

The law demands that we atone
When we take things we do not own
But leaves the lords and ladies fine
Who take things that are yours and mine.

The poor and wretched don't escape
If they conspire the law to break;
This must be so but they endure
Those who conspire to make the law.

The law locks up the man or woman
Who steals the goose from off the common
And geese will still a common lack
Till they go and steal it back I

The Second Enclosure Movement

This poem is one of the pithiest condemnations of the English Enclosure Movement, the process of fencing off common land and turning it into private property.
(Although we refer to it as "THE enclosure movement" it was actually a series of enclosures that started in the 15th century and went on, with differing means, ends and varieties of state involvement, until the 19th.) The poem manages in a few lines to criticize
double standards, expose the artificial and controversial nature of property rights and to take a slap at the legitimacy of state power. And it does it all with humour, without jargon and in rhyming couplets. Academics (including this one) should take note. Like most of the criticisms of the enclosure movement, the poem depicts a world of rapacious, stateaided "privatization," a conversion into private property of something that had formerly been common property, or perhaps had been outside of the property system altogether.
Sir Thomas More went further, though he used sheep rather than geese to make his point.
He argued that Enclosure was not merely unjust in itself, but harmful in its consequences: a cause of economic inequality, crime and social dislocation.

But yet this is not only the necessary cause of stealing. There is another, which, as I suppose, is proper and peculiar to you Englishmen alone.
What is that, quoth the Cardinal? forsooth my lord (quoth I) your sheep that were wont to be so meek and tame, and so small eaters, now, as I hear say, be become so great devourers and so wild, that they eat up, and swallow down the very men themselves. They consume, destroy, and devour whole fields, houses, and cities. For look in what parts of the realm doth grow the finest and therefore dearest wool, there noblemen and gentlemen.... leave no ground for tillage, they enclose all into pastures; they throw down houses; they pluck down towns, and leave nothing standing, but only the church to be made a sheep-house....Therefore that one covetous and insatiable cormorant and very plague of his native country may compass about and enclose many thousand acres of ground together within one pale or hedge, the husbandmen be thrust out of their own..

The Enclosure movement continues to draw our attention. It offers irresistible ironies about the two-edged sword of "respect for property," and lessons about the way in which the state actually defines and enforces property rights to promote controversial social goals. Its most strident critics argue that the enclosure movement imposed devastating costs on one segment of society. Some of these costs were brutally and relentlessly "material," - for example, the conversion of crofters and freeholders into debtpeons, seasonal wage-laborers or simply, as More argued in Utopia, into beggars and thieves. But other harms were harder to classify; the loss of a form of life, the relentless power of market logic to migrate to new areas, disrupting traditional social relationships and perhaps even views of the self, or the relationship of human beings to the environment.
You know the kind of thing - if we put on our cultural studies hats we can produce it by the yard. "The landscape painters of the 18th and 19th century put the noble owners of property either literally or figuratively at the front of their landholdings, gazing out over empty pastoral vistas, the detached but self-satisfied masters of all they survey. Earlier paintings, such as Breughel's "Harvesters," by contrast, had depicted people as both in and of the landscape. Land has moved from being part of the life-world to being a commodified and alienated entity - an object of property, separate from the self, subject to the sole despotic dominion that is the mark of a property regime" Or something like that.
So much for the bad side of the enclosure movement. For many economic historians though, everything I have said up to now is the worst kind of sentimental bunk, romanticizing a form of life that was neither comfortable nor noble, and certainly not very egalitarian. The big point about the enclosure movement was that it worked; this innovation in property systems allowed an unparalleled expansion of productive possibilities. By transferring the inefficiently managed common land into the hands of a single owner, enclosure escaped the aptly-named tragedy of the commons. It gave incentives for large scale investment, allowed control over exploitation and in general insured that the resource could be used most efficiently. The feudal lord would not invest in drainage schemes, sheep purchase, or crop rotation that might increase yields from the common. He knew all to well that the fruits of his labor could be appropriated by others.
Strong private property rights and single entity control avoid the tragedies of both overuse and underinvestment; more grain will be grown, more sheep raised: consumers will benefit, fewer people will starve in the long run. If the price of this social gain is a greater concentration of economic power, the introduction of market forces into areas where they previously had not been so obvious, the disruption of a modus vivendi with the environment, then so be it. The population expansion that followed the mass deaths of the sixteenth century was driven in part by the surplus produced through enclosure. Those who weep tears about the terrible effects of private property should realize that it literally saves lives. Or so say enclosure's defenders.
This is all very well. But what does it have to do with intellectual property? We are in the middle of a second enclosure movement; it sounds grandiloquent to call it "the enclosure of the intangible commons of the mind" but in a very real sense, that is just what it is. True, the new state-created property rights are "intellectual" rather than "real," but once again things that were formerly thought as either common property or as "uncommodifiable," as outside of the market, are covered with new, or newly extended property rights.
Take the human genome as an example. Again, the supporters of enclosure have argued that the state was right to step in and extend the reach of property rights; that only this way could we guarantee the kind of investment of time, ingenuity and capital necessary to produce new drugs and gene therapies. To the question, 'should there be patents over human genes?' the supporters of enclosure would answer again, "private property saves lives." Again, the opponents of enclosure have claimed that our genome "belongs to everyone" that it is literally "the common heritage of humankind," that it should not and perhaps in some sense cannot be owned and that the consequences of turning over the human genome to private property rights will be dreadful, as market logic invades areas which should be the farthest from the market. In stories about stem cell patents, and gene sequence patents, critics have mused darkly about the way in which the state is simply handing over monopoly power to a few individuals and corporations, potentially introducing bottlenecks and coordination costs that slow down innovation. Alongside these accounts of the beneficiaries of the new property scheme, run news-stories about those who were not so fortunate, the commoners of the genetic enclosure; law students across America now read Moore v. Regents, a California Supreme Court case deciding that poor Mr. Moore had no property interest in the cells derived from his spleen. The court tells us that giving private property rights to "sources" would slow the free-wheeling practice researchers have of sharing their cell lines with all and sundry. (One imagines styrofoam coolers criss-crossing the country by Federal Express in an orgy of communistic flesh swapping.) The doctors whose inventive genius created a billion dollar cell line from Mr.
Moore's "naturally occurring raw material" by contrast, are granted a patent. Private property rights here, by contrast, are a necessary incentive to research. The economists on both side of the enclosure debate concentrate on the efficient allocation of rights.
Popular discussion on the other hand, doubtless demonstrating a reprehensible lack of rigor, returns again and again to more naturalistic assumptions such as "common-ness" of the property involved or the idea that one owns one's own body.
The genome is not the only area to be partially "enclosed" during this process; the process of expansion of intellectual property rights has been remarkable in every field of endeavour - from business method patents, to the Digital Millennium Copyright Act, to trademark antidilution rulings, to the European Database Protection Directive. The old limits to intellectual property rights -- the anti-erosion walls around the public domain -- are also under attack. The annual process of updating my syllabus for a basic Intellectual Property Course provides a nice snapshot of what is going on. I can wax nostalgic looking back to a five year old text, with its confident list of subject matter that intellectual property rights couldn't cover, the privileges that circumscribed the rights that did exist, the length of time before a work falls into the public domain. In each case, the limits have been eaten away.
To be sure, there is a danger of overstatement. The very fact that the changes have been so one-sided makes it hard to resist exaggerating their impact. In 1918 Brandeis confidently claimed that "[t]he general rule of law is, that the noblest of human productions -- knowledge, truths ascertained, conceptions, and ideas - become, after voluntary communication to others, free as the air to common use." That baseline -- intellectual property rights are the exception rather than the norm: ideas and facts must always remain in the public domain - is still supposed to be our starting point. It is, however, under attack. Both overtly and covertly the commons of facts and ideas is being enclosed. Patents are increasingly stretched out to cover "ideas" that 20 years ago all scholars would have agreed were unpatentable; the so-called business method patents, which cover such "inventions" as auctions or accounting methods are an obvious example.
Most troubling of all are the attempts to introduce intellectual property rights over mere compilations of facts. If Anglo-American intellectual property law had an article of faith, it was that unoriginal compilations of facts would remain in the public domain, that this protection of the raw material of science and speech was as important to the next generation of innovation as the intellectual property rights themselves. The system would hand out monopolies in inventions and in original expression - the facts below (and the ideas above) would remain free for all to build upon. But this premise is being undermined.
Some of the challenges are subtle; in patent law, stretched interpretations of novelty and non-obviousness allow intellectual property rights to move closer and closer to the underlying data-layer; gene sequence patents come very close to being rights over a particular discovered arrangement of data -- C's, G's, A's and T's. Other challenges are overt; the European Database Directive does (and the various proposed database bills in the United States would) create proprietary rights over compilations of facts, often without even the carefully framed exceptions of the copyright scheme; such as the usefully protean category of "fair use." The older strategy of intellectual property law was a "braided" one; thread a thin layer of intellectual property rights around a commons of material from which future creators would draw. Even that thin layer of intellectual property rights was limited so as to allow access to the material when the private property owner might charge too much, or just refuse; fair use allows for parody, commentary and criticism, and also for "decompilation" of computer programs so that Microsoft Word's competitors can reverse engineer its features in order to make sure that their program can convert Word files.
(Those who prefer topographical metaphors might imagine a quilted pattern of public and private land, with legal rules specifying that certain areas, beaches say, can never be privately owned and accompanying rules giving public rights of way through private land if there is a danger that access to the commons might otherwise be blocked.) It may sound paradoxical to say it, but in a very real sense, protection of the commons was one of the fundamental goals of intellectual property law. In the new vision of intellectual property, however, property should be extended everywhere; more is better. Expansions of patentable and copyrightable subject matter, lengthening of the copyright term, giving legal protection to "digital barbed wire," even if it is used in part to protect against fair use: each of these can be understood as a vote of no confidence in the productive powers of the commons. We seem to be shifting from Brandeis's assumption that the "noblest of human productions are free as the air to common use" to the assumption that any commons is inefficient if not tragic.
The expansion is more than a formal one. It used to be relatively hard to violate an intellectual property right. The technologies of reproduction or the activities necessary to infringe were largely, though not entirely, industrial. The person with the printing press who chooses to reproduce a book is a lot different from the person who lends the book to a friend, or takes a chapter into class. The photocopier makes that distinction fuzzy, the networked computer erases it altogether. In a networked society copying is not only easy, it is a sine qua non of transmission, storage, caching and some would claim, even reading. As bioinformatics blurs the line between computer modeling and biological research, digital production techniques blur the line between listening, editing and recreating. "Rip, mix and burn," says the Apple advertisement. It marks a world in which the old regime of intellectual property, operating upstream as a form of industrial unfair competition policy, has been replaced. Intellectual property is now in, and on, the desktop, implicated in routine creative, communicative and just plain consumptive acts that each of us performs every day. The reach of the rights has been expanded at the same moment that their practical effect has been transformed.
So far I have argued that there are profound similarities between the first enclosure movement and our contemporary expansion of intellectual property. Once again the critics and proponents of enclosure are locked in battle; hurling at each other incommensurable claims about innovation, efficiency, traditional values, the boundaries of the market, the saving of lives, the loss of familiar liberties. Once again, opposition to enclosure is portrayed as economically illiterate; the beneficiaries of enclosure tell us that an expansion of property rights is needed in order to fuel progress. Indeed, the post Cold War 'Washington Consensus' is invoked to claim that the lesson of history itself is that the only way one gets growth and efficiency is through markets; property rights, surely, are the sine qua non of markets.
But if there are similarities between our two enclosures, there are also profound dissimilarities; the networked commons of the mind has many different characteristics from the grassy commons of Old England. I want to concentrate here on two key differences between the intellectual commons and the commons of the first enclosure movement: differences that should lead us to question whether this commons is truly tragic and to ask whether stronger intellectual property rights really are the solution to our problems. These differences are well-known, indeed they are the starting point for most intellectual property law. Nevertheless, a little reflection on them might help to explain both the problems and the stakes in the current wave of expansion.
Unlike the earthy commons, the commons of the mind is generally "non-rival." Many uses of land are mutually exclusive. If I am using the field for grazing, it may interfere with your plans to use it for growing crops. By contrast, a gene sequence, an MP3 file or an image may be used by multiple parties; my use does not interfere with yours. To simplify a complicated analysis, this means that the depredations through overuse which affect fields and fisheries are generally not a problem with the informational or innovational commons. (The exceptions to this statement turn out to be fascinating; in the interests of brevity I will ignore them entirely.) Thus one type of tragedy of the commons is avoided.
The concerns in the informational commons have to do with a different kind of collective action problem: the problem of incentives to create the resource in the first place, rather than the problem of its overuse once created. The difficulty comes because of the idea that information goods are not only non-rival (uses do not interfere with each other) they are also assumed to be non-excludable (it is impossible, or at least hard, to stop one unit of the good from satisfying an infinite number of users at zero marginal cost.) Pirates will copy the song, the mousetrap, the drug formula. The rest of argument is well known. Lacking an ability to exclude, creators will be unable to charge for their creations; there will be inadequate incentives to create. Thus the law must step in and create a limited monopoly called an intellectual property right.
This is a well-known argument; but it has recently acquired an historical dimension; a teleology of intellectual property maximalism. If the reason for intellectual property rights is the non-rivalrous and non-excludable nature of the goods they protect then surely the historical lowering of copying and transmission costs implies a corresponding need to increase the strength of intellectual property rights. Imagine a line. At one end sits a monk painstakingly transcribing Aristotle's Poetics. In the middle, lies the Gutenberg printing press. Three quarters of the way along the line is a photocopying machine. At the end, lies the Internet and the online version of the human genome. At each stage, copying costs are lowered; goods become both less rival and less excludable; my MP3 files are available to anyone in the world running Napster. Songs can be found and copied with ease; the symbolic end of rivalry comes when I am playing the song in Chapel Hill at the very moment that you are both downloading and listening to it in Kazakhstan. Now that's non-rival. My point is that there seems to be an assumption that the strength of intellectual property rights must vary inversely with the cost of copying. To deal with the monkcopyist, we need no intellectual property right; physical control of the manuscript is enough.
To deal with Gutenberg press we need the statute of Anne; to deal with the Internet we need the Digital Millennium Copyright Act, the No Electronic Theft Act, the Sonny Bono Term Extension Act, and perhaps even the Collections of Information Anti-Piracy Act.
As copying costs approach zero asymptotically, intellectual property rights must approach perfect control. And if a greater proportion of product value and GNP is now in the form of information value-added, then obviously we have an independent reason to need strengthened protection; a $5 padlock would do for a garden shed, but not for a vault.
Like any attractive but misleading argument, this one has a lot of truth. The internet does lower the cost of copying, and thus the cost of illicit copying. Of course, the same process also lowers the costs of production, distribution and advertising and dramatically increases the size of the potential market. Is the "net" result, then, a loss to right-holders such that we need to increase protection in order to maintain a constant level of incentives? A large, leaky, market may actually provide more revenues than a small one over which one's control is much stronger. What's more, the same technologies that allow for cheap copying also allow for swift and encyclopedic search engines - the best detection device for illicit copying ever invented. It would be impossible to say, on the basis of the evidence we have, that owners of protected content are better or worse off as a result of the Net.
(M y intuitions -- and our historical experience with prior 'dangerous' copying technologies such as the VCR -- point strongly to the position that they are better off; but there really isn't enough evidence either way.) Thus the idea that we must inevitably strengthen rights as copying costs decline just doesn't hold water. And given the known static and dynamic costs of monopolies, and the constitutional injunction to encourage the progress of science and the useful arts, the burden of proof should be on those requesting new rights to prove their necessity.
How about the argument that the increasing importance of information value-added and information intensive products to the world economy means that protection must increase? Must the information commons be enclosed because it is now a more important sector of economic activity? (Remember, I am talking here about increases in the level of rights; protecting new subject matter for longer periods of time, criminalizing certain technologies, making it illegal to cut through digital fences, even if they have the effect of foreclosing previously lawful uses, and so on. Each of these has the effect of diminishing the public domain in the name of national economic policy.) This was certainly one of the arguments for the first enclosure movement; for example, during the Napoleonic War enclosure was defended as a necessary method of increasing the efficiency of agricultural production, now a vital sector of a wartime economy. Here we come to another big difference between the commons of the mind and the earthy commons. As has frequently been pointed out, information products are frequently made out of fragments of other information products; your information output is someone else's information input. These inputs may be snippets of code, discoveries, prior research, images, genres of work, cultural references, databases of single nucleotide polymorphisms: all of these form part of the raw material for future innovation. And every potential increase of protection over your products also raises the costs of, or reduces your access to, the raw material you might have built those products from. The balance is a delicate one; one Nobel prizewinning economist has claimed that it is actually impossible to strike that balance so as to produce an informationally efficient market. Whether or not it is impossible in theory, it is surely a difficult problem in practice. In other words, even if enclosure of the arable commons always produced gains (itself a subject of debate), enclosure of the information commons clearly has the potential to harm innovation as well as to support it. More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation. Sometimes just the opposite is true. It may be that intellectual property rights slow down innovation, by putting multiple road-blocks, multiple necessary licenses, in the way of subsequent innovation. The most recent example of this phenomenon were multiple legal roadblocks in bringing "Golden Rice" to market. Using a nice inversion of the idea of the tragedy of the commons, Heller and Eisenberg referred to these effects - the transaction costs caused by myriad property rights over the necessary components of some subsequent innovation - as "The Tragedy of The Anti-Commons." My arguments so far have taken as a given the incentives/collective action problems to which intellectual property is a response. I have discussed the extent to which the logic of enclosure works for the commons of the mind as well as it did for the arable commons, taking into account the effects of an information society and a global internet.
What I have not done is asked whether a global network actually transforms some of our assumptions about the way that creation happens in a way that actually reshapes the debate about the need for incentives - at least in certain areas. But this is exactly the question that needs to be asked.
For anyone interested in the way that networks can enable new collaborative methods of production, the first case to study is the free software movement, or the broader but less vociferous movement that goes under the name of open source software. This software is released under a series of licenses -- the most important being the General Public License or GPL. The GPL specifies that anyone may copy the software, provided the license remains attached and the "source code" for the software always remains available. Users may add to or modify the code, may build on it and incorporate it into their own work, but if they do so then the new program created is also covered by the GPL. Some people refer to this as the "viral" nature of the license; others find the term offensive. The point, however is that the open quality of the creative enterprise spreads; it is not simply a donation of a program or a work to the public domain, but a continual accretion in which all gain the benefits of the program on pain of agreeing to give their own additions and innovations back to the communal project.
The free software and open source software movements have produced software that rivals, and many would say, exceeds the capabilities of conventional proprietary, binary-only software. Its adoption on the "enterprise level" is impressive, as is the number and enthusiasm of the various technical encomia to its strengths. But it is not merely that the software works technically, that it is an example of widespread, continued high quality innovation. The remarkable thing is that it works socially, it works as a continuing system; this is being done by a network largely consisting of volunteers, or at least of people who are not paid directly for their role in code writing. Here, it seems, we have a classic public good - code that can be copied freely, and sold or redistributed without paying the creator or creators. This sounds like a classic tragedy of the commons of the kind that I described in the first section. Obviously, with a non-rival, non-excludable good like software, this method of production can't be sustained; there are inadequate incentives to ensure continued production. E pur si muove, as Gallileo is reputed to have said in the face of Cardinal Bellarmine's certainties, "And yet it moves." There is a broad debate on the reasons that the system works; are the motivations those of the gift economy? Is this actually a form of potlatch; in which one gains prestige by the extravagance of the resources one "wastes"? Is it an implicit resume builder that pays off in other ways? Is it driven by the species-being, the innate human love of creation that continually drives us to create new things even when homo economicus would be at home in bed, mumbling about public goods problems? Yochai Benkler and I would argue that these questions are fun to debate but ultimately irrelevant. Benkler's way of putting it is characteristically elegant, even formal in its precision, mine is clunkier. Assume a random distribution of incentive structures in different people, a global network: transmission, information sharing and copying costs that approach zero, and a modular creation process; with these assumptions, the answer is that it just doesn't matter why they do it. In lots of cases, they will do it. One person works for love of the species, another in the hope of a better job, a third for the joy of solving puzzles and so on.. Each person also has their own "reserve price," their own point at which they say "now I will turn off 'Survivor' and go and create something." But on a global network, there are a lot of people, and with numbers that big, and informationoverhead that small, even relatively hard projects will attract motivated and skilled people whose particular reserve price has been crossed. For the whole structure to work without large scale centralized coordination, the creation process has to be modular, with "units" of different size, and complexity, each requiring slightly different expertise, all of which can be added together to make a grand whole. I can work on the sendmail program, you on the search algorithms. More likely, lots of people try to solve the sendmail and search algorithm problems, and their products are judged by the community, and the best ones adopted. Under these conditions, this curious mix or Kropotkin and Adam Smith, Richard Dawkins and Richard Stallman, we will get distributed production without having to rely on the proprietary/exclusion model; the whole enterprise will be much, much, much greater than the sum of the parts.
What's more, and this is a truly fascinating twist, when the production process does need more centralized coordination, some governance that guides how the sticky modular bits are put together, it is at least theoretically possible that we can come up with the control system in exactly the same way; distributed production is potentially recursive. Governance processes too, can be assembled through distributed methods on a global network, by people with widely varying motivations, skills and 'reserve prices.' One organization theorist to whom I mentioned the last idea, said "Ugh, governance by food fight." And anyone who has ever been on an a organizational listserv, still less been part of a global production process run by people who are long on brains and short on social skills, knows how accurate that description is. E pur si muove.
But, in the language of computer programmers, does it 'scale'? Can we generalize anything from this limited example.? How many types of production, innovation, and research fit into the model I have just described? After all, for lots of types of innovation and invention one needs hardware, capital investment, large scale real-world data collection, stuff - in all its infinite recalcitrance and facticity.. Maybe the open source model has solved the individual incentives problem, but that's not the only problem. And how many types of innovation or cultural production are as modular as software? Is open source software a paradigm case of collective innovation that helps us in understanding...
open source software, and not much else? Again, I think this is a good question but it may be the wrong one. My own guess is that this method of production is far more common than we realize. "Even before the Internet," as some of my students have taken to saying portentously, science, law, education, and musical genres all developed in ways that are markedly similar to the model I have described. "The marketplace of ideas," the continuous roiling development in thought and norm that our political culture spawns, is itself an idea that owes much more to the distributed, non-proprietary model than it does to the special case of commodified innovation that we think about in copyright and patent. Not that copyright and patent aren't important in the process, but it would be hard to imagine them as the norm rather than the exception. Indeed, all the mottos of free software development have their counterparts in the theory of democracy and the open society; "with enough eyeballs, all bugs are shallow" is merely the most obvious example. Karl Popper would have cheered.
So I would argue that open source wasn't radically new or different. It is just here we had a case where the technology was novel, so we paid more attention to its characteristics, and the result of the productive process was unarguably "a product" in successful competition with proprietary products.
The questions about the modularity of other types of invention or the applicability of this method to other forms of productive activity are also important ones. Again, my guess is that the increasing migration of the sciences towards data-rich, processing-rich models makes much more of innovation and discovery a potential candidate for the distributed model. Bio-informatics and computational biology, the open source genomics project at www.ensembl.org, the possibility of distributed data scrutiny by lay volunteers, which NASA used on the Mars landing data: all of these offer intriguing glances into the potential for the future. And finally, of course, the Internet is one big experiment in, as Benkler puts it, peer-to-peer cultural production.
So if these questions are good ones, why are they also the wrong ones? I have given my guesses about the future of the distributed model of innovation; my own utopia has it flourishing alongside a scaled-down but still powerful intellectual property regime.
Equally plausible scenarios see it as a dead end, or as the inevitable victor in the war of productive processes. But the point is that these are all guesses; at the very least, there is some possibility (I would say, hope) that we could have a world in which much more of intellectual and inventive production was free. "Free as in free speech," Richard Stallman says, not "free as in free beer." But we could hope that much of it would be both free of centralized control, and low cost or no cost. When the marginal cost of production is zero, the marginal cost of transmission and storage approaches zero, the process of creation is additive and much of the labor doesn't charge.. well, the world looks a little different. (Exhibit A; the Internet, from the software and protocols on which it runs, to the multiple volunteer sources of content and information.) This is at least a possible future, or part of a possible future; and one that we should surely not foreclose without thinking twice. Yet that is what we are doing; the point about the Database Protection Bills and Directives, which extend intellectual property rights to the layer of facts, the efflorescence of software patents, the UCITA-led validation of shrinkwrap licenses that bind third parties, the Digital Millennium Copyright Act's anti-circumvention provisions, the point of all of these is not merely that they make the peer-to-peer model not difficult, but that in many cases they rule it out altogether. I will assert this point here, rather than argue for it; but I think it can be (and has been) demonstrated quite convincingly. The point is, then, that there is a chance that a new (or old, but under-recognised?) method of production could flourish in ways that seem truly valuable - valuable to free speech, to innovation, to scientific discovery, to what Terry Fisher calls "semiotic democracy," to the wallets of consumers, and perhaps even to the balance of our lives between joyful creation and drudgery for hire. True it is only a chance. True, its ambit of operation and its sustainability are uncertain. But why would we want to foreclose it? That is what the recent expansions of intellectual property threaten to do. And remember, these expansions were dubious in the extreme even in a world where we saw little or no possibility of the distributed production model I have described, where discussion of 'network effects' had yet to reach the pages of the New Yorker, and where our concerns about the excesses of intellectual property were simply the ones that Jefferson and Madison and Macaulay gave us so long ago, as I will describe in the next section.
Thus we have come full circle. Is this the second enclosure movement? As I have tried to show, in many ways it is. The opponents and proponents of enclosure remain locked in battle, each appealing to conflicting and sometimes incommensurable claims about efficiency, innovation, justice and the limits of the market. But should it be the second enclosure movement? Do we know that property rights in this sphere will yield the same surge of productive energy as they did with arable land? There I think the answer is a resounding "No." We are rushing to enclose ever larger stretches of the commons of the mind without anything in the way of convincing economic evidence that it will help our processes of innovation, and with very good reason to believe it will actually hurt them. (This is particularly strange at a time when other governmental subsidies are subjected to relentless skepticism and demands for empirical support. Is it really worthwhile teaching poor pre-schoolers to read? Where is the data?) As I have argued elsewhere, this process should bother people across the ideological spectrum, from civil libertarians to free marketeers; the world of the arts and sciences should be particularly interested in the process. The American system of science, for all its flaws, has worked astoundingly well; changing some of its fundamental premises, such as by moving property rights into the data layer, is something not to be done lightly.
The dangers are particularly important at the moment for three reasons. First, propertization is a vicious circle. The argument is a little complex to lay out here but in essence the position is this: Once a new intellectual property right has been created over some informational good, the only way to ensure efficient allocation of that good is to give the rightsholder still greater control over the user or consumer in the aftermarket so as to allow for "price discrimination." The only efficient monopoly is a monopoly with perfect price discrimination; the ability to charge every user the exact maximum of their ability and willingness to pay, so that the market can be perfectly segregated by price. And to achieve perfect price discrimination with digital intellectual property goods, whose marginal cost is zero, the rights holders will argue that they need even more changes of the rules in their favour: relaxed privacy standards so they can know more about our price points, enforceable shrinkwrap or clickwrap contracts of adhesion so that we can be held to the term of our particular license, no matter how restrictive, changes in antitrust rules to allow for a variety of practices that are currently illegal, such as resale price maintenance and various forms of "tying." Rights holders will also claim that they need technical changes with legal backing; the creation of personalized digital objects surrounded by state backed digital fences, objects that are tied to particular users and particular computers, so that reading my e-book on your machine is either technically impossible, a crime or a tort - or possibly all three. The point of all of this is that it's a slope that is much easier to go down than to come up. Thus, we ought to think clearly about the consequences of the decisions now being made in such a rush.
Second, in order to create the conditions for the kind of price discrimination described above, the characteristics of the Internet that make it so attractive to civil libertarians - its distributed, anonymous character, its resistance to control or filtering by public or private entities, its global nature - all of these start to seem like bugs rather than features. The process of trying to make the Net safe for the price discrimination project has already begun; this, as Larry Lessig teaches us, is a fundamental public choice that ought to be made deliberately and publicly, not as a side-effect of an economically dubious digital enclosure movement. Because of some threats, such as terrorism, we might choose to live in a pervasively monitored electronic environment in which identity, geography and thus regulability have been reintroduced.(Though in my own view the price would not be worth paying.) But to do so on the basis of some bad microeconomic arguments about the needs of the entertainment industry, in the absence of good empirical evidence, and to foreclose some of the most interesting new productive possibilities in the process - well, that would be really sad.
Third, the arguments in favour of the new enclosure movement depend heavily on the intellectually complacent, analytically unsound assumptions of the "neo-liberal orthodoxy," the "Washington consensus." The world of the Washington consensus is divided into two parts. In one, growing smaller by the minute, are those portions of the economy where the government plays a major "regulatory" role. The job of neo-liberal economic thought is to push us toward the privatization of the few areas that remain; after all, we know that "state intervention in the economy" is a recipe for disaster. The second area is an altogether happier place, the realm of well-functioning free markets, where the state does not regulate, subsidize or franchise but instead only defines and protects property rights. While unintended consequences are rife in the world of government regulation, no such dangers should be feared if the government is simply handing over a patent on gene sequences, or stem cell lines, or creating a property right over compilations of facts. Property is good and more property is better. It would be ironic, to say the least, to maintain this view in the information commons, the one area where the delicate balances of the property system should be clearest, and the political choices involved most obvious.
It is doubly ironic to do so at a time when there are actually examples of modes of distributed production that stretch our sense of the economically possible, that upset our complacency about the limited ways in which innovation and production can be managed.
But what is the alternative to the second enclosure movement? It is one thing to say, as I do, that we need more and better empirical information, that our intellectual property system should be audited like any other government subsidy to make sure that we are getting what we pay for, and not paying too much for what we get. But the process I have described here is not entirely a rational one; in some cases it is driven by industry capture of the levers of state power, in others by a variety of alluring beliefs that dominate thought on the subject; the logic of enclosure "Property saves lives/ more incentives mean more production!" is the one I have concentrated on here. In other work, I have explored the impact of the ideal of original creation, creation ex nihilo, on our assumptions about the need to protect the public domain. (Who needs a public domain if you can create out of nothing?) The point of this review is that it is not enough merely to offer criticisms of the logic of enclosure. What's needed is deeper; a change in the way that these issues are understood, a change that transforms even our perceptions of self-interest, making possible coalitions where none existed before.
In the second half of this essay, I try to develop the vocabulary and the analytic tools for such a change. I offer an historical sketch of various types of skepticism about intellectual property, from the anti-monopolist criticisms of the Framers of the American Constitution, through the emergence of affirmative arguments for the public domain, to the use of the language of the commons to defend the possibility of distributed methods of nonproprietary production. In many ways, it turns out, concepts of the public domain show the same variation in assumptions, the same analytic differences, as the concept of property itself. I conclude by arguing that, for a number of reasons, the appropriate model for the change in thinking that I am arguing for comes from the history of the environmental movement; the invention of "the environment" as a concept pulls together a string of otherwise disconnected issues, offers analytical insight into the blindnesses implicit in prior ways of thinking, causes perception of common interest where none was seen before. Like the environment, the public domain must be "invented" before it is saved. Like the environment, like "nature," the public domain turns out to be a concept that is considerably more slippery than many of us realize. And like the environment, it turns out to be useful, perhaps even necessary, nevertheless.

II The Construction of the Public Domain

a.) Anti-Monopoly and A Tax on Reading Intellectual property has always had its critics; brilliant ones at that, whose writing puts contemporary academics to shame. (To be fair, this is not hard to do.) Jefferson often leads off the list for American audiences. Writers from the Supreme Court of the United States to John Perry Barlow quote his 1813 letter to Isaac MacPherson.
If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possess the less, because every other possess the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot in nature, be a subject of property.
Those who quote the passage sometimes stop here, which is a shame, because it leaves the impression that Jefferson was unequivocally against intellectual property rights. But that would be an overstatement. When he says that invention can never be the subject of a property, he means a permanent and exclusive property right which, as a matter of natural right, no just government could abridge. "Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property." This did not mean, however, that inventions could not be covered by temporary state-created monopolies, instituted for the common good. In the lines immediately following the popularly quoted excerpt, Jefferson goes on, Society may give an exclusive right to the profits arising from [inventions], as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
Jefferson's message was a skeptical recognition that intellectual property rights might be necessary, a careful explanation that they should not be treated as natural rights, together with a warning of the monopolistic dangers that they pose. This message was famously echoed thirty years later in Britain by Thomas Babbington Macaulay.
Macaulay's speeches to the British House of Parliament in 1841 on the subject of copyright term extension still express better than anything else the position that intellectual property rights are necessary evils which must be carefully circumscribed by law. In order for the supply of valuable books to be maintained, authors "must be remunerated for their literary labour. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright." Patronage is rejected out of hand. "I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles." We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honourable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates. If, as my honourable and learned friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles good and cheap, why does he stop short in his career of change? Why does he limit the operation of so salutary a principle to sixty years? Why does he consent to anything short of a perpetuity? He told us that in consenting to anything short of a perpetuity he was making a compromise between extreme right and expediency. But if his opinion about monopoly be correct, extreme right and expediency would coincide. Or rather, why should we not restore the monopoly of the East India trade to the East India Company? Why should we not revive all those old monopolies which, in Elizabeth's reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people? I believe, Sir, that I may with safety take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honourable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company's monopoly of tea, or by Lord Essex's monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.
These words from Jefferson and Macaulay encapsulate an 18th and 19th century free-trade skepticism about intellectual property. Jefferson himself had believed that the constitution should have definite limits on both the term and the scope of intellectual property rights and spoke of the difficulty of "drawing a line between the things which are worth to the public the embarrassment of an exclusive patent and those which are not." Madison, too, stressed the costs of any intellectual property right and the need to limit its term. So did Adam Smith The key concern here is an anti-monopolistic one - though we should remember that for these men the concept of monopoly was a much richer one than the impoverished neo-classical economic concept we employ today. It involved not simply economic loss, though they certainly cared about that, but also the tendencies towards "corruption" that monopolies introduced. This "corruption" including the harm to the fabric of the republic caused by great concentrations of wealth and power. It also included the perverse incentives given to the beneficiaries of state-granted monopolies to spend resources suborning the legislature on which their monopoly rent depends. Today we call those incentives "campaign finance," "the participation of stakeholders in the legislative process" or just "business as usual." The intellectual property skeptics had other concerns. Macaulay was particularly worried about the power that went with a transferable and inheritable monopoly. It is not only that the effect of monopoly is "to make articles scarce, to make them dear, and to make them bad." Macaulay also pointed out that those who controlled the monopoly, particularly after the death of the original author, might be given too great a control over our collective culture. Censorious heirs or purchasers of the copyright might prevent the reprinting of a great work because they disagreed with its morals. From more recent examples, we can also see that they may keep policing the boundaries of the work, attempting to prevent parody or "tarnishment" long after the original author is dead. One wonders what Macaulay would have thought about the attempt by Margaret Mitchell's estate to prevent the publication of "The Wind Done Gone." There were certainly other 18th and 19th century concerns raised about intellectual property. For example, while Macaulay is the best remembered critic of copyright in the debates of the 1840's, there were other more radical opponents who saw copyright primarily as a "tax on literacy," identical in its effects to the newspaper stamp taxes. At a time when mass literacy and mass education were the hotly debated corollaries to the enlargement of the franchise, reformers looked with hostility on anything that seemed likely to raise the cost of reading and thus continue to restrict political and social debate to the wealthier classes.
Patent law, too, attracted its share of attacks in the mid nineteenth century. A fusillade of criticism, often delivered by economists and cast in the language of free trade, portrayed the patent system as actively harmful.
At the annual meeting of the Kongress deutscher Volkswirthe held in Dresden, September 1863, the following resolution was adopted "by an overwhelming majority": "Considering that patents hinder rather than further the progress of invention; that they hamper the prompt general utilization of useful inventions; that on balance they cause more harm than benefit to the inventors themselves and, thus, are a highly deceptive form of compensation; the Congress of German Economists resolves: that patents of invention are injurious to common welfare." In the Netherlands, the patent system was actually abolished in 1869 as a result of such criticisms. Observers in a number of other countries, including Britain, concluded that their national patent systems were doomed. Various proposals were made to replace patent, with state-provided prizes or bounties to particularly useful inventions being the most popular. These snippets are hardly sufficient to constitute any kind of a survey of critical reactions to intellectual property systems, but I believe that nevertheless they give a relatively fair sense of those debates. Three points could be made. First, from the early days of intellectual property as we know it now, the main objections raised against it were framed in the language of free trade and "anti-monopoly." In the United States, the founding generation of intellectuals had been nurtured on the philosophy of the Scottish Enlightenment and the history of the struggle against royal monopolies. They were not immune to the arguments in favour of intellectual property, but they warned again and again of the need to circumscribe both its term and its scope. What were their concerns? They worried about intellectual property producing artificial scarcity, high prices and low quality.
They worried about its justice; given that we all learn from and build on the past, do we have a right to carve out our own incremental innovations and protect them by intellectual property rights? Price aside, they also worried that intellectual property (especially with a lengthy term) might give too much control to a single individual or corporation over some vital aspect of science and culture. In more muted fashion, they discussed the possible effects that intellectual property might have on future innovation. But the overwhelming theme was the promotion of free trade and a corresponding opposition to monopolies.
Second, it is important to look at the structure of these comments; they are framed as criticisms of intellectual property rather than defenses of the public domain or thecommons, terms that appears rarely if at all in the debates. There is no real discussion of the world of intellectual property's outside, its opposite.
Third, a linked point: most of these critics take as their goal the prevention or limitation of an "artificial" monopoly; without this monopoly our goal is to have a world of...
what? The assumption is that we will return to a norm of freedom, but of what kind? Free trade in expression and innovation, as opposed to monopoly? Free access to expression and innovation, as opposed to access for pay? Or free access to innovation and expression in the sense of not being subject to the right of another person to pick and choose who is given access, even if all have to pay some flat fee? Or is it common ownership and control that we seek, including the communal right to forbid certain kinds of uses of the shared resource? The 18th and 19th century critics brushed over these points; but to be fair, we continue to do so today.

b.) Recognizing The Public Domain

In the last section I discussed the anti-monopolist criticisms of intellectual property law, criticisms that were heard from the beginning of intellectual property in its modern form and which continue to the present day. At what point does the negative account of the ills of intellectual property turn into, or get added to, a defense of something called "the public domain"? By a defense of the public domain, I do not mean mere usage of the word. Though "public domain" was a widely used term to describe public lands in the United States, the intellectual property usage of the term comes to us from the French domaine public which made its way into American law in the late nineteenth century via the language of the Berne Convention. (The process is somewhat ironic, since the French copyright law, with its focus on author's rights, is in many ways among the least solicitous and protective of the public domain.) But at what point do we find a defense of the public domain, rather than merely a criticism of the costs of intellectual property? Many different starting points are defensible; in the United States, the work of Ralph Brown and Ben Kaplan is sometimes mentioned as initiating this way of looking at things. The Supreme Court itself can plausibly be given some credit, though this is an unusual admission from a legal academic. In a 1966 patent case, repeatedly citing the work of Jefferson, the Court made it clear that the public domain has a constitutional dimension.
"The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available." This is a remarkable statement. It goes beyond a mere recitation of the Framer's attitudes towards the dangers posed by monopoly, and makes an affirmative defense of the public domain. Notice how the limitations are stated as additive and not as mutually equivalent, or even as mere corollaries; the court does not say that 'the enlargement of the patent monopoly must promote innovation and this limits Congress's power to remove material from the public domain.' Instead it postulates an existent public domain and makes it unconstitutional under the patent clause for Congress to privatize any portion of that domain. There are echoes here of the "public trust doctrine," which restricts the state's ability to privatize public resources or waterways and turn them over to private parties.
Notice also that the court gives the public domain both direct and indirect protection: protection from measures which formally create patent rights over portions of the public domain, but also from those which merely "restrict free access to materials already available." Thus there are a number of possible places where one could say, 'the defense of the public domain begins here.' But like most people, I attribute central importance to the writing of my friend and colleague David Lange, whose article "Recognizing the Public Domain" really initiated contemporary study of the subject. Lange's article was driven by indignation about, indeed eloquently sarcastic ridicule of, expansions of intellectual property protection in the 1960's and 70's, Lange claims that one major cause of this expansion was that intellectual property rights are intangible, abstract and thus imprecise. He argues, in a way that would have been familiar to Macaulay or Jefferson, that we should cease this "reckless expansion." But he also argues that "recognition of new intellectual property interests should be offset today by equally deliberate recognition of individual rights in the public domain." Lange is not arguing "that intellectual property is undeserving of protection, but rather that such protection as it gets ought to reflect its unique susceptibility to conceptual imprecision and to infinite replication. These attributes seem to me to require the recognition of two fundamental principles. One is that intellectual property theory must always accept something akin to a "no-man's land" at the boundaries; doubtful cases of infringement ought always to be resolved in favor of the defendant. The other is that no exclusive interest should every have affirmative recognition unless its conceptual opposite is also recognized. Each right ought to be marked off clearly against the public domain" But what does this mean? What are the nature of these "individual rights in the public domain"? Who holds them? Indeed what is the public domain? Does it consist only of works that are completely unprotected? Books whose copyright term has lapsed, say? Does it include aspects of works that are unprotectable, such as the ideas or the facts on which an argument is based, even if the expression of that argument is protected? What about limitations on exclusive rights, privileges of users or affirmative defenses. Are those part of the public domain too? Is the parody-able aspect of your novel in the public domain? What about the short quote on which a critical argument is mounted? Earlier in this essay, I discussed the "commons of the mind." What is the relationship between the public domain -- however defined -- and the commons? If the public domain is so great, what does it do for us, what is its role? These questions can be reduced to two: What is the public domain? Why should we focus on it? In the following pages, I will argue that the answer to the first question depends on the answer to the second.
Work that followed Lange's article offered various answers to the questions he had posed. Lindberg and Patterson's book, the Nature of Copyright reverses the polarity from the normal depiction, and portrays copyright as a law of users' rights. The public domain is the figure; copyright, the ground. The various privileges and defenses are not exceptions, they are at the heart of copyright correctly seen; an attempt to prevent monopolisation and preserve access to the public domain by defining the limits of permissible restraints. Jessica Litman's fine 1990 article, The Public Domain, portrays the public domain's primary function as that of allowing copyright law to continue to work notwithstanding the unrealistic, individualistic idea of creativity it depends on.
The public domain rescues us from this dilemma. It permits us to continue to exalt originality without acknowledging that our claims to take originality seriously are mostly pretense. It furnishes a crucial device to an otherwise unworkable system by reserving the raw material of authorship to the commons, thus leaving that raw material available for other authors to use.
The public domain thus permits the law of copyright to avoid a confrontation with the poverty of some of the assumptions on which it is based. Litman's definition of the public domain is both clear and terse; "a commons that includes those aspects of copyrighted works which copyright does not protect." Precisely because she sees the function of the public domain as allowing the kinds of additive and interstitial creation that the language of individual originality fails to capture, her definition of the public domain includes the recyclable, unprotected elements in existing copyrighted works as well as those works that are not protected at all. Form follows function.
Yochai Benkler takes a slightly different approach. He follows Litman in rejecting the traditional, absolutist conception of the public domain: a conception which included only those things that are totally unprotected by copyright. .
The particular weakness of the traditional definition of the public domain is that it evokes an intuition about the baseline, while not in fact completely describing it. When one calls certain information "in the public domain," one means that it is information whose use, absent special reasons to think otherwise, is permissible to anyone. When information is properly subject to copyright, the assumption (again absent specific facts to the contrary) is that its use is not similarly allowed to anyone but the owner and his or her licensees. The limited, term-of-art "public domain" does not include some important instances that, as a descriptive matter, are assumed generally to be permissible. For example, the traditional definition of public domain would treat short quotes for purposes of critical review as a fair use-- hence as an affirmative defense--and not as a use in the public domain. It would be odd, however, to describe our system of copyright law as one in which users assume that they may not include a brief quotation in a critical review of its source. I venture that the opposite is true: Such use generally is considered permissible, absent peculiar facts to the contrary. However Benkler's alternative definition does not include every privileged use - for example, the fair use privilege that I am able to vindicate only after litigating an intensely complicated case which involves in highly specific factual inquiries.
The functional definition therefore would be: The public domain is the range of uses of information that any person is privileged to make absent individualized facts that make a particular use by a particular person unprivileged. Conversely, [t]he enclosed domain is the range of uses of information as to which someone has an exclusive right, and that no other person may make absent individualized facts that indicate permission from the holder of the right, or otherwise privilege the specific use under the stated facts. These definitions add to the legal rules traditionally thought of as the public domain, the range of privileged uses that are "easy cases." Note the key to Benkler's analysis is his focus on the public domain's role in information production and use by all of us in our roles as consumers, citizens and future creators. We need to focus on those works, and aspects of works, that the public knows is free without going through a highly individualized factual inquiry. "Free" meaning what? Earlier in this essay I asked what we mean when we speak of the freedom that the public domain will allow. Free trade in expression and innovation, as opposed to monopoly? Free access to expression and innovation, as opposed to access for pay? Or free access to innovation and expression in the sense of not being subject to the right of another person to pick and choose who is given access, even if all have to pay some flat fee? Or is it common ownership and control that we seek, including the communal right to forbid certain kinds of uses of the shared resource? I think that Benkler is arguing that the most important question here is whether laypeople would know that a particular piece or aspect of information in free - in the sense of both being uncontrolled by anyone else and costless. The test case is simple to imagine; do we count as part of the public domain songs that can be "covered" by subsequent artists on payment of a defined fee under a compulsory license. To put it in the language of legal theory, is content that is covered only by "liability rules," (particularly statutory liability rules with pre-specified payments) actually part of the public domain? Well, of course, that depends on why we care about the public domain - on what vision of freedom or creativity we think the public domain stands for, and what danger it protects against. And the same is true for the commons, a term that has come to be used increasingly often over the last five years to refer to wellsprings of creation that are outside of, or different from, the world of intellectual property. The Internet was seen as such a commons. The Internet expanded so rapidly precisely because its core protocols - TCP/IP and HTML - are open; like languages, these systems allowed all to create by offering a common framework owned by no-one.
And that insight, coupled with the positive images of communal production that the Net offered, and the negative images of network-effect leverages monopolies that the Net also offered, galvanized a related but different type of interest in "the outside of property."

c.) Discovering the e-commons

Take Larry Lessig's definition of a commons.
It is commonplace to think about the Internet as a kind of commons. It is less commonplace to actually have an idea what a commons is. By a commons I mean a resource that is free. Not necessarily zero cost, but if there is a cost, it is a neutrally imposed, or equally imposed cost.
Central Park is a commons: an extraordinary resource of peacefulness in the center of a city that is anything but; an escape and refuge, that anyone can take and use without the permission of anyone else. The public streets are a commons: on no one's schedule but your own, you enter the public streets, and go any direction you wish. You can turn off of Broadway onto Fifty-second Street at any time, without a certificate or authorization from the government. Fermat's last theorem is a commons: a challenge that anyone could pick up; and complete, as Andrew Wiles, after a lifetime of struggle, did. Open source, or free software, is a commons: the source code of Linux, for example, lies available for anyone to take, to use, to improve , to advance. No permission is necessary; no authorization may be required. These are commons because they are within the reach of members of the relevant community without the permission of anyone else.
They are resources that are protected by a liability rule rather than a property rule. Professor Reichman, for example, has suggested that some innovation be protected by a liability rule rather than a property rule. The point is not that no control is present; but rather that the kind of control is different from the control we grant to property. Note the difference in focus. If our concern is monopolistic control over chokepoints imposed by the will of others, freedom from others "telling us what we can do, " then the norm of freedom we will seek to instantiate in property's outside, whether we describe it as a public domain or a commons, is a norm of non-discriminatory access. Freedom in one powerful liberal tradition means freedom from the will of another, not freedom from the background constraints of the economic system. Why pick this vision of freedom instead of the vision provided by Benkler's account of the public domain - content that is literally "free," both free from exclusive rights and available at zero cost? There are lots of reasons. In the world of "network effects," an intellectual property right over a widely used standard or network protocol can give an unprecedented amount of power to the rightholder; the power might even include the ability to leverage one's rights to stifle innovation that threatened one's business. This was the heart of many of the Justice Department's claims against Microsoft; though it is only fair to point out that these claims that were hotly disputed both by the company and by independent academics. If one's main concern is maintaining innovation, one might think that the danger of monopoly here was not higher prices but rather the power of control itself; access for all to the intellectual property in question on payment of a flat fee might seem to avoid those dangers and to allow for free competition in follow-on innovation.
The world of monopoly and property comes to be seen as a world of restraint on innovation, more than a world of restricted output and high prices; correspondingly, property's outside -- "not property" -- shifts its core characteristics; in technical terms, an imagined commons of pure Hohfeldian privileges gives way to a commons partly constituted of resources protected by liability rules. But I suspect that there is a second reason. Although we present our reasoning on these matters in neat chains of apparently logical argument, that conceals the power of "the paradigm case," the core example, or irresistible counter example, in shaping our ideas.
As I argue in the first part of this essay, most recent theorists of the public domain start with the irresistible example of the free and open source software movements ever before their eyes. Here was a real world spur to rethink the public goods problems, the tragedy of the commons, on which the economic rationale for intellectual property was based. Here was a "comedy of the commons" - the title of Carol Rose's magnificently prescient article about the occasional superiority of common property regimes to individual private property rights. To be sure there would still be an enclosed domain; the open source model wouldn't work everywhere, as I explained above. But now the placement of the line between the two domains was everywhere up for grabs. This is a point that can't be stressed enough.
There was only one small problem. Is free software and open source software in the public domain? After all, the thing that makes open source software work is the General Public License, the GPL. All the things that seem so interesting about open source - its model of distributed production, the way that it grows, binding future innovators who make use of it to add to the store themselves - are built on an agreement, a contract. And that contract in turn rests, fairly and squarely, on an intellectual property right - the copyrights held by the Free Software Foundation, and other entities. The GPL says, in effect, here is this copyrighted body of work; use it, add to it, modify it, copy it - all of these uses are legal but ONLY if you comply with the terms of the GPL. Otherwise your actions are infringements of the exclusive rights protected under the section 106 of the copyright act. If, for example, you take the Linux kernel, fiddle with it, add your own material and attempt to sell the result as proprietary, binary-only software, you have violated the contract which gives you permission to use this copyrighted original material at all. In legal terms at least, the free software movement stands squarely on property and contract.
Given that free software stands as the kind of "irresistible example" around which theories tend to form, how is it to be assimilated into the older criticisms of intellectual property and defenses of the public domain? Certainly, the free software movement, at least, was formed explicitly around criticisms of the effects of intellectual property that would have been familiar to Jefferson and Macaulay. But the answer to the perceived negative effects of strong intellectual property rights on innovation and freedom was not to write a lot of code and release it unprotected by copyright. Instead, the free software movement attempted to build a living ecology of open code, where the price for admission was your commitment to make your own incremental innovation part of the ecology, too. On the one hand, this fit poorly into the old model of the "total freedom" public domain - there were, after all, significant restraints on your use of the software, restraints that were vital to the project. But on the other hand, it fit very well into a new literature from Elinor Ostrom, Robert Keohane, Margaret McKean and many others; the literature on governing the commons. This literature was able to show that not every commons was a tragedy. But the literature also showed that successful commons' were not entirely "free" - they ran on layers of norms that were frequently invisible to the legal system but which nevertheless served to avoid the various paradoxes of collective action. Whether the examples were Japanese herdsmen or Silicon Valley programmers, the literature sought to show just how the commons was, and should be, governed. Notice the differences in approach. The old dividing line in the literature on the public domain had been between the realm of property, and the realm of the free. (With all of the ambiguities in that term that I noted earlier.) The new dividing line, drawn as a palimpsest on top of the old, was between the realm of individual control and the realm of distributed creation, management and enterprise. To be sure, the two share a great deal, but they are also different in important ways; to put it bluntly, some of the theorists of the e-commons do not see restraints on use as anathematic to the goal of "freedom," indeed they may see the successful commons as defined by its restraints. Those restraints may be legal - Lessig's liability rules, or they may be built on community norms and prestige networks of various kinds - the point is that "property's outside," property's antonym, was now being conceived of differently (though frequently, and somewhat confusingly, using the same words and many of the same arguments.) This has a been very long way of answering a short question. (I am an academic, after all.) I have sketched out three projects here: an anti-monopolistic critique of intellectual property, the defense of "a free public domain," and an attempt to outline the rules for a commons of the mind on the global net. These three projects overlap, draw from similar philosophical and economic sources, and use the same vocabulary. They are also not necessarily consistent with each other and each may use the same term in different ways; "free," "public domain," "commons," "enclosure" - each term shifts its meaning as we move from one intellectual project to the next, in part because each project is built around a different set of hopes and fears.
The first stage of the story I outlined here was the attempt by Jefferson, Madison, Macaulay and others to balance the arguments in favor of intellectual property with criticism of its monopolistic costs and dangers; the goal was to build an awareness of the need for limitations into the grant itself. The second stage was a little more complex.
Here an affirmative argument for the public domain was put forward, rather than merely a criticism of intellectual property. There was an existent public domain, whose value we should recognise, and which should have protection - perhaps even constitutional protection - against the danger that knowledge would be removed from it, or access to existing material impeded. Fine and dandy, but what was this public domain that we were to protect? There the answers were less clear. What norm of freedom did the public domain instantiate? Free trade? Free beer? Freedom from monopolistic control? Free communal production? The early public domain theorists were enigmatic on this point: the later ones, vocal, but not necessarily consistent. The final panel in my triptych still relies on the criticism of enclosure and monopoly, but in the place of the public domain, we find the rhetoric of the commons, a commons that in some conceptions one might have to pay to use. At first sight, this may all seem distressingly messy. Surely conceptions of the public domain, or the commons, should be more consistent; why so much variation, such different definitions? Look at the question from the other side of the looking glass.
Is this little potted history so very different from the history of the concept of property? We know very well that concepts of property have varied enormously over time, and that the assumptions of the legal system about the analytical details of property have also varied enormously. Does property include notions that we might describe as human rights, or individual liberty, as it probably did for Locke? Is property the sole, absolute and despotic dominion that Blackstone wrote about (even though that did not match the reality in his own legal system)? Are property rights the impermeable wall conjured up by the majority in the Leroy Fibre case, inside which we can do what we will without having to think about the possible conduct of others? Is property the bundle of rights that first year law students learn about - more accurately a grab bag of rights, powers, privileges and immunities, held together by nothing stronger than nominalism; we choose to call these things "property" and so they are? Each of these conceptions of property is linked in a complicated way to the structure of belief in the larger society and in the legal system from which the property right sprang. Some of these conceptions are Sunday suits, smart clothing for external consumption, others are working clothes - the day to day approximations used by legal practitioners to solve the problems before them. Our conceptions of property and sovereignty overlap, as the legal realists famously taught us, and the ideas of property taught in a law school classroom are markedly different from the same concept in ordinary language. We do not generally, however, throw up our hands and conclude that the whole concept should be jettisoned.
And what is true for property, is true for the public domain. Just as there are many "properties," so too there are many "public domains." To the simple vision of property rights as consisting only of the state of absolute, perfect dominion, can be counterposed the simple vision of the public domain as that which exists only where total freedom reigns.
Here the "public domain" consists only of complete works that are completely free: free for appropriation, transfer, redistribution, copying, performance and even rebundling into a new creation, itself covered by intellectual property. (Thus it is no surprise to find this vision of the public domain flourishing at the times and in the places where the concept of property is hailed as being absolute - even if that is far from the actual truth.) To the 'bundle of rights' conception of property, on the other hand, can be counterposed the 'bundle of privileges' vision of the public domain; where we assume, for example, that fair use over a copyrighted work is part of the public domain. And to the predictive, legal realist vision of property, "predictions of what the courts will protect in fact" to paraphrase Holmes, can be counterposed a predictive, critical conception of the public domain "predictions of what the public can do freely and nothing more pretentious," to paraphrase Benkler. Lessig's vision of the commons includes even works for which one has to pay, so long as the legal interest is protected merely by a liability rule and the payment is nondiscriminatory.
Each of these definitions is driven by a goal; explicit or implicit. It may be that the public domain consists of those aspects of works which must remain outside of property if copyright's misleading presumptions about creation are to be squared with reality. It may be that the commons is constructed around the twin notions of preventing monopoly control over network protocols in order to preserve innovation, while still allowing for the type of collective management that will avoid a tragedy of the commons. We have not one public domain, one theory of the public domain, but many. My own point of view is that this is all to the good, though a little more clarity is certainly in order. But not everyone agrees.

d.) Reifying the Negative?
What is gained by reifying the negative, and imagining a "theory" of the public domain? Edward Samuels, The process I have described was a gradual one. From having been the invisible Other, the unquestioned margin of intellectual property, the public domain was attracting increasing attention. (Some of it, I must admit, from me, though I have wisely omitted that work from my summary out of self-preservation.54) And this body of work soon began to receive the ultimate intellectual compliment; thoughtful skepticism from others about whether there was any there, there.
After reviewing the various proposed arguments supporting a general theory of the public domain, by Patterson and Lindberg or by other authors, it would appear that there simply is no such general theory.
Instead, there are several discrete contexts in which arguments about the public domain are encountered, each context raising different considerations that may have little or nothing to do with each other, and that cumulatively constitute what remains after one examines all possible sources of legal protection for works of authorship... What is gained by reifying the negative, and imagining a "theory" of the public domain? If one wants to encourage a presumption against new forms or areas of protection, then one can do so without having to invoke a magical "public domain." There are dozens of battlegrounds between those who want to expand intellectual property protection and those who want to limit it or narrow it in any given context. The arguments in each context should be kept separate, since they raise different policy issues. Nevertheless, the individual issues sometimes tend to be elusive, and one's attitude toward them tends to be flavored as often as not by one's general attitude toward copyright law. If those who find themselves continually on the side arguing for a limitation of protection need a rallying cry, perhaps it can be "the public domain." The invocation may seem to add a moral overtone to the argument, to counterbalance the morally charged principles invoked time and again by the protectionists. In the final analysis, however, "such vague rhetoric does little more than adorn the stage on which actual choices must be played out." What is gained by reifying the negative? Professor Samuels' question is a good one. He supplies part of the answer with his thought that perhaps the language of the public domain will be used to counter the language of sacred property. This is indeed an important point; language matters, and not just as "rhetoric." Even if the limits of my language are not the limits of my world, the limits of my language certainly influence my world in a deeper way than as "vague rhetoric" adorning a stage, on which "actual choices must be played out." The analogy I have tried to develop in my writing is that of the environmental movement.
Why talk of "an environment" or "environmental harm"? Why not simply list the pro's and con's of each particular piece of development, type of technology, aspect of land use. In each case there will be issues to be thought about; clean water, beautiful vistas, biodiversity, raised sea levels, the morals of species preservation, skin cancers from thinned ozone layers, carbon sequestration, responsibilities to future generations and so on and so on. It is not clear that there is any Ariadne's thread that links these issues together.
What's more it is fairly clear that there is no coherent or consistent definition of "nature" or "the environment." There are certainly lots of discrete contexts in which the idea of nature or the environment is raised, and many different arguments for and against a particular type of development or of technology. Why not simply deal case by case with the harms to this river, that wetland, this species, that way of life? Why reify these individual loci of potential harm into a single entity called "the environment"? Part of the answer, of course, is rhetorical. The idea of the environment seems to add a moral overtone to the discussion, to counterbalance the arguments about "progress" and "growth" and "modernity." And this is hardly an unimportant function.
But that is not all there is to it. The environmental movement gained much of its persuasive power by pointing out that there were structural reasons that we were likely to make bad environmental decisions; a legal system based on a particular notion of what "private property" entailed, and an engineering or scientific system that treated the world as a simple, linearly related set of causes and effects. In both of these conceptual systems, the environment actually disappeared; there was no place for it in the analysis. Small surprise then, that we did not preserve it very well. In other work, I have argued that the same is true about the public domain. The fundamental tensions in the economic analysis of information issues, the source-blindness of an "original author" centered model of property rights, and the political blindness to the importance of the public domain as a whole (not "my lake," but "The Environment") all come together to make the public domain disappear, first in concept and then, increasingly, as a reality.
Of equal importance is the power of a concept like the environment both to clarify and to reshape perceptions of self interest. When we are talking about the particular costs of this development proposal or that, the duck hunter is less likely to make common cause with the bird-watcher in another region, let alone the person worried about genetic drift in salmon populations or the effect of CFC's on the ozone layer. The idea that there is "an environment" allows a coalition to be built around a reframed conception of common interest. In the narrowest sense, that common interest might be the realisation, spurred by greater attention to environmental interrelationships, that wetlands are important to both the duck hunter and the birdwatcher and that they provide all kinds of ecosystem services.
Naming encourages study. In the broader sense, though it is not merely the word that catalyses attention. There were two very important ideas behind the environmental movement. The first was the idea of ecology; the fragile, complex and unpredictable interconnections between living systems. The second was the idea of welfare economics -- the ways in which markets can fail to make activities internalise their full costs. The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make activities internalise their own costs, particularly their own environmental costs. This failure would, routinely, disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous and possible irreparable consequences.
These two types of analysis pointed to a general interest in environmental protection and thus helped to build a large constituency which supported governmental efforts to that end. They were coupled to a simple point from public choice theory. Public decisions are particularly likely to be bad when concentrated and well organised groups with stable, substantial and well identified interests face-off against diffuse, and disorganised groups whose information costs are substantially higher, with interests that, while enormous in the aggregate are individually small. There are lots of people who might be affected by a decision to rely on a particular power source; a coal burning power plant in the Northeast, say; there are people who see acid rain killing off the fish in their lake, together with the ones who worry about particulate emissions and those whose houses will be swallowed up by the sea if global warming lives up to its billing. But in the decisions about energy purchase and planning, they are neither as well informed, nor is it easy for them to be as well-organised, as the company which proposes to run the particular plant.
The notion of "an environmental movement" helps to sustain a coalition that people join, give money to and so forth, even when the particular issue being lobbied over affects them not at all. By coming to be convinced that they should give loyalty to "the protection of the environment," rather than to "opposition to the stuff that affects me badly," the diffuse group was able to overcome some of the collective action problems involved. Specialised organisations fitting particular niches in the movement (Greenpeace, the Audubon Society, the Environmental Defense Fund, the Nature Conservancy) fulfilled a variety of roles and allowed people to "subcontract" their information gathering to experts whose norms and pedigree they trusted. (Once I decide that the Environmental Defense Fund does good science and good legal research, I rely on their opinion - levelling the playing field a bit between me and the power company with its hired scientists and lawyers.) And, what's true for the environment is - to a striking degree, though not completely - true for the public domain and for the commons. The idea of the public domain presents at a higher level of abstraction a set of individual fights -- over this chunk of the genome, that aspect of computer programs, this claim about the meaning of parody, or the ownership of facts. Just as the duck hunter finds common cause with the birdwatcher and the salmon geneticist by coming to think about "the environment," so an emergent concept of the public domain could tie together the interests of groups currently engaged in individual struggles with no sense of the larger context. This notion, in turn, allows people to solve collective action problems in a number of different ways -- including the creation of specialised organisations whose technical expertise and lobbying proficiency allows the diffuse interests of a wider public to be better articulated; Here too, we can learn. The public domain should have its Greenpeace, its Environmental Defence Fund, its Nature Conservancy; and indeed, organisations paralleling each of these functions do appear to be springing up.
The analogy goes further. Just as the environment, or nature, actually takes on multiple shadings of meaning to respond to different hopes and fears; biodiversity, the preservation of beauty, a particular relationship between human beings and the planet - so to the various images of the public domain and the commons each expresses a specific set of fears about the dangers of property, hopes about the creative process. Frequently, the concept is constructed as an antonym - mirroring the analytic structure of the dominant idea of property to which it is counterposed. Samuels' skepticism is useful here; some more clarity about the contents of the public domain, and the relationship between the concept of the commons and of the public domain would indeed be useful. The literature on governing the commons promises to be exceptionally useful here, as does the oftneglected tradition of Hohfeldian legal analysis; each can offer a different kind of clarity.
But just as with the environment, with nature, we do not respond to the revelation that these words are used in multiple and overlapping ways, with the conclusion that we should simply abandon them and deal individually with the pluses and minuses of each development proposal, each dam, each CFC emission. The concept of the environment allows, at its best, a kind of generalised reflection on the otherwise unquestionable presuppositions of a particular mode of life, economy and industrial organisation. 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. The poem with which I began this essay told us; And geese will still a common lack / Till they go and steal it back. I can't match the terseness or the rhyme.
But if we assume that the second enclosure movement will have the same benign effects as the first, well, we will look like very silly geese indeed.