James Boyle
Fencing off ideas: enclosure& the
disappearance of thepublic domain
The law locks up theman orwoman
Who steals thegoose from off the common
But leaves thegreater villain loose
Who steals the common from off thegoose.
The law demands thatwe atone
When we take thingswe do not own
But leaves the lords and ladiesfine
take things that are yours and mine.
Who
The poor and wretched don't escape
If they conspire the law to break;
This must be so but they endure
Those who conspire tomake the law.
The law locks up theman or woman
Who steals thegoose from off the common
And geese will still a common lack
Till theygo and steal it back.
JLhis poem
demnations
movement,
common
con
is one of the pithiest
of the English enclosure
the process of fencing off
land and turning it into private
we refer to it as "f/ze
(Although
itwas actually a
movement,"
series of enclosures
that started in the
property.
enclosure
century and went on, with dif
means,
ends, and varieties of state
fering
the nineteenth.)
The
until
involvement,
a
to
in
criticize
lines
few
poem manages
fifteenth
expose the artificial
nature of property
and take a slap at the legitimacy
double
standards,
and controversial
rights,
of state power. And it does it all with
humor, without
jargon, and in rhyming
couplets.
Sir Thomas
further, though
sheep rather than geese to make
his point. He argued that enclosure was
not merely unjust in itself, but harmful
in its consequences.
Itwas a cause of eco
he used
nomic
Your
that were
sheep
and
legal and social theory.He is currentlyworking on
a book about thepublic domain. His work can be
found at <http://james-boyle.com>.
so
say, be become
so meek
as I
now,
eaters,
devourers
great
that they eat up, and swallow
the very
down
to be
wont
so small
and
tame,
and so wild,
and Spleens :Law and theConstruction of the
Information Society" (1996) and numerous law
review articles about intellectual property law and
and social dis
crime,
inequality,
location.
hear
James Boyle is a professor of law at Duke Law
School. He is the author of "Shamans, Software,
went
More
men
themselves.
con
They
sume, destroy, and devour whole fields,
houses, and cities. For look inwhat parts
of the realm doth grow the finest and
therefore
and
dearest
there
wool,
leave
gentlemen...
no
noblemen
for
ground
tillage, they enclose all into pastures ;they
throw down houses ; they pluck down
towns,
and
leave
nothing
but
standing,
? 2002 by James Boyle
D
dalus
Spring
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2002
13
James
on
Boyle
intellectual
property
only the church to be made
.. .Therefore
one
that
tiable cormorant
native
and
insa
and very plague of his
may
country
a sheep-house.
covetous
compass
about
and
Unless
to
about
tral.
in the footsteps
of Thomas
Following
critics
have
More,
long argued that the
movement
enclosure
imposed devastat
on one segment of society.
costs
ing
Some of these costs were brutally and
the
for example,
"material"
relentlessly
conversion
of crofters and freeholders
or
into peons, seasonal wage-laborers,
as More
in
Utopia, beg
argued
simply,
gars and thieves. But other harms were
to classify : the loss of a form of
life, and the relentless power of market
to new areas, disrupting
logic to migrate
views of
social relationships,
traditional
of
the self, and even the relationship
harder
beings to the environment.
historians
A great many economic
see the
to
As
differ.
have begged
they
have fall
the critics of enclosure
matter,
human
en prey
to the worst
kind of sentimental
a form of life that was
ity, romanticizing
nor noble, and cer
neither comfortable
not
very egalitarian.
tainly
From
an economist's
key fact about
is that it worked:
point of view,
the enclosure movement
the
this new property
an
allowed
expan
unparalleled
regime
sion of productive
By trans
possibilities.
common
ferring inefficiently managed
land into the hands of a single owner,
averted one aptly named
enclosure
14 D
would
lord knew
the feudal
ensured
It
that
efficiently.
that the
be his alone, he
in drainage
or the
of
the purchase
schemes,
sheep,
rotation of crops in order to increase the
fruits of his labor would
sword of
the two-edged
lessons
about
for
and
property"
"respect
controver
the role of the state inmaking
to define
decisions
sial, policy-laden
property
rights in ways that subsequent
come to seem both natural and neu
ly
ironies
and in general
be used
exploitation,
the resource
enclose many thousand acres of ground
together within one pale or hedge, the
husbandmen be thrust out of their own.
continues
The enclosure movement
It offers irresistible
draw our attention.
overuse.
commons:
"tragedy" of the
for large-scale
also created incentives
allowed control over
investment,
not have
would
invested
of his acreage.
yield
Strong private-property
rights helped
to avoid the tragedies of both overuse
As a result of the
and underinvestment.
enclosure
fewer Englishmen
movement,
more
was
starved:
grown, and
grain
were raised. If the price of
more
sheep
this social gain was a greater concentra
tion of economic
power in fewer hands
so
of the environment,
and despoliation
be it. Those who weep about the terrible
should realize
effects of private property
that it literally saved lives. Or so say the
economic
historians.
than antiquari
JLhis is a debate of more
an interest, for we are in the midst of a
new kind of enclosure movement,
this
a new and intan
one aimed at exploiting
commons
call it a "com
gible kind of
mons of the mind."1 Once again, things
un
that were formerly
thought to be
or
common,
commodifiable,
essentially
are
the market
outside
altogether
being
under a
turned into private possessions
new kind of property
regime. But this
i The
movement
to the enclosure
has
analogy
too succulent
to resist. To my knowledge,
Yochai
Pamela
Ben Kaplan,
Samuleson,
and
David
Benkler,
May,
Lange,
Christopher
been
Keith Aoki have all employed the trope, as I
have
on
myself
ularly
thoughtful
the parallelism
the
Information
Copyright
and
For a partic
occasions.
previous
of
and careful
development
see Hannibal
"Pirates
of
Travis,
Infrastructure
the First
:Blackstonian
Amendment,"
Berkeley
Tech. Law Journal 15 (2) (Spring 2000) :777.
dalus Spring 2002
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is intangi
time the property
in question
in
business
databases,
ble, existing
and gene sequences.
methods,
as an exam
Take the human genome
moners,
ralistic
have
of "enclosure"
ple. The opponents
to
claimed that the genome
"belongs
com
is
it
"the
that
everyone,"
literally
mon
heritage of humankind."
They say
that the code of life ought not and per
some sense cannot be owned by
haps in
an individual or a
corporation. When
have
been
patents
granted for stem cells
critics have mused
and gene sequences,
the state
about
the
way in which
darkly
is simply handing over monopoly
power
to private parties, potentially
thwarting
future
and innovation.
The new
have names like Geron,
research
monopolists
Celera, and Human
and their holdings
patent portfolios
steel plants.
rather
than oil wells
or
these reports about the
of
the new property
scheme
beneficiaries
run news stories about those who were
so fortunate,
the commoners
of the
across
students
enclosure.
Law
genetic
now read Moore v. Regents, a
America
California
Supreme Court case deciding
had no property
that poor Mr. Moore
not
a
right to cell line derived from his
In
this case, the court decided
spleen.
that giving property
rights to "sources"
itmore difficult for scien
make
tists to share cell lines with fellow re
one can
searchers
reading the decision,
coolers
almost picture the Styrofoam
would
the country by Federal
criss-crossing
an orgy of altruistic flesh
in
Express
swapping. Yet this fear of the pernicious
effects of property
rights did not last for
cell line from Mr. Moore's
"naturally
raw material."
Like the com
occurring
finds
that his natu
like the first enclosure
this new one has its defend
movement,
ers. To the question
patents over human
"should
there be
the answer
genes?"
saves lives."
be "private property
the
of property
reach
Only by extending
can the state guarantee
the invest
rights
ment of time, ingenuity, and capital nec
essary to produce new drugs and gene
rights are a
therapies. Private-property
econo
to research;
incentive
necessary
will
only worry about how to al
these rights most efficiently. Or so
of private-property
say the advocates
need
locate
Alongside
long. In another portion of the opinion
of the
the court speaks approvingly
to
the
doctors
whose
patent granted
inventive genius created a billion-dollar
Of course,
mists
Genome
Sciences,
are in the form of
Mr. Moore
and traditional property
claims
as
are portrayed
to
innova
impediments
tion. Like the beneficiaries
of enclosure,
the doctors are granted a property
right
to encourage
efficient development
of a
resource.
wasted
rights.
is not the only area to
The genome
in the
have been partially
"enclosed"
In recent
years, intellectual
have
been
property
rights
dramatically
in many different fields of
expanded
from business
human endeavor
past decade.
to the Digital Millenni
method
patents
um
Copyright Act, from trademark
antidilution
rulings to the European
Protection
Directive.
Database
In 1918, the American
jurist Louis "
Brandeis
claimed
that
[t]he
confidently
rule
of
that
the
law
noblest
of
is,
general
human productions
truths
knowledge,
and ideas
ascertained,
conceptions,
communication
after voluntary
become,
as
to others, free
the air to common
use." At the time that Brandeis
made
that remark, intellectual
property
rights
were the exception
rather than the rule ;
itwas widely
agreed that ideas and facts
must always remain in the public do
main. But that old consensus
is now
attack. Long-standing
limits on
the reach of intellectual
the
property
under
D
dalus
Spring
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2002
15
Fencing off
ideas
James
on
Boyle
intellectual
property
antierosion
walls around the public
- are
being eaten away each year.
The annual process of updating my
property
syllabus for a basic intellectual
course
a nice
provides
snapshot of what
is going on. I can wax nostalgic
looking
domain
to a five-year-old
its con
text, with
that
fident list of the subject matter
back
couldnt
intellectual
property
rights
that circumscribed
cover, the privileges
the rights that did exist, the length of
time before awork fell into the public
domain.
In each case,
been changed
the old limits have
or
challenged.
are increasingly
stretched out
recently
Patents
to cover "ideas"
scholars would
that twenty years ago all
have agreed were un
the so-called business meth
patentable:
cover such "inven
od patents, which
or
as
auctions
tions"
accounting meth
trou
ods, are an obvious
example. Most
are the attempts
to introduce
bling of all
over
mere
intellectual
property
rights
If
facts.
of
Anglo-American
compilations
law had an article
intellectual
property
of faith, itwas that unoriginal
compila
remain in the public
tions of facts would
domain. This was "no mere accident of a
as the Supreme
scheme,"
statutory
Court once put it: protecting
the raw
of science and speech is as
to the next generation
of
important
as the intellectual
innovation
property
The system would
rights themselves.
for an inven
offer a limited monopoly
of ideas,
tion or an original expression
con
was to be
but the monopoly
tightly
or expres
fined to the layer of invention
sion. The facts below, or the ideas above,
remain free for all to build upon.
would
material
the stuff that could be protected
by
the drug or the
intellectual
property
to pass into
poem, say was supposed
a
certain num
after
the public domain
be strictly
limited
in both
time and
extent.
assumptions
Today, these traditional
about intellectual
law are under
property
are sub
attack. Some of the challenges
tle. In patent law, stretched
interpreta
tions of novelty and nonobviousness
property
rights to
and closer to the underlying
gene sequence patents come
datalayer;
to being rights over a particu
close
very
lar discovered
of data
C's,
arrangement
are
G's, A's, and T's. Other challenges
Directive
overt; the European Database
allow
move
intellectual
closer
database
(and the various proposed
create
in the United
States would)
over
of
proprietary
rights
compilations
even
the
often
without
facts,
carefully
of the copyright
framed exceptions
cat
such as the usefully protean
scheme,
egory of "fair use."
does
bills
The older
prop
strategy of intellectual
a "braided" one : thread a
was
law
erty
thin layer of intellectual
property
rights
of material
from
around a commons
which
future
creators would
draw. Even
that thin layer of intellectual
property
was limited so as to allow access
rights
to the material when
the private-proper
or just
owner
ty
might
charge too much,
refuse ;fair use allows for parody, com
and criticism,
and also for
of
programs
computer
"decompilation"
so that Microsoft
Word's
competitors
mentary,
can
its features in order
reverse-engineer
sure
can con
to make
that their program
vert Word files. (Those who prefer topo
a
imagine
graphical metaphors
might
of
and
private
public
quilted pattern
that cer
land, with legal rules specifying
-
-
Even
tain
ber of years. As Jefferson and Macaulay
intellectual
both observed,
property
were necessary
evils.
They should
rights
privately owned, and accompanying
rules giving public right of way through
private land if there is a danger that
access to the commons
otherwise
might
be blocked.)
From the inception
of intellectual
l6 D
dalus
Spring
areas
beaches,
say
2002
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can
never
be
law in the eighteenth
property
century
of the
until quite recently, protection
com
domain
the
public
intangible
mons - was one fundamental
goal of the
new
most
nations.
In the
law in
vision of
of the mind,"
"commons
circa 2002, differs greatly from the
grassy and isolated common
plots of
and networked
;
rights
more
is better.
patentable
Expanding
and copyrightable
subject matter,
the copyright
term, giving
lengthening
to "digital barbed wire,"
legal protection
even if it is used in part to prevent fair
use :each of these can be understood
as a
vote of no confidence
in the productive
commons.
We seem to be
of
the
powers
circa 1400.2
England
Some of the key differences
should lead
us to question whether
stronger intellec
are
nec
tual property
rights
really either
or
desirable.
essary
For example,
consider
the well-known
fact that a digital text, unlike a plot of
land, can be used by countless people
interfer
without mutual
simultaneously
ence or destruction
of the shared
resource.
assumption
shifting from Brandeis's
that the "noblest of human productions
are free as the air to common
use" to the
Unlike an earthly commons,
is generally
the commons
of the mind
call "nonrival." Many
what economists
uses of land are
If I
exclusive.
mutually
am using the field for grazing,
itmay
that any human production
assumption
if not
left open to free use is inefficient,
2 The
tragic.
arguments
mons
used.
traditionally
can claim
over
had
(though
they discovered
the territory
usable
of gene
opponents
turn more
hand,
to enclosure
is por
opposition
as
illiterate
; the
trayed
economically
beneficiaries
tell us that an
of enclosure
the
of
the first
is
; this
theirs
about
in
of history
itself is that the only way one
is through
gets growth and efficiency
are the
markets
;property
rights, surely,
sine qua non of markets.
But if there are similarities
between
disputed)
perhaps
simply made
own. The
they seek to
on the other
patenting,
or
the
the
than
farmers
and
religious
of life and
of
ethical
the
sanctity
systems.
living
to free speech
over
debates
intellectual
digital
no
in debates
precise
analogue
dominate
have
property,
or
over
pasturage,
hunting
there are common
themes.
seeing
already
the immemorial
although,
again,
we
For example,
of
laments
nostalgic
the
are
loss of
users. At the
rights of Internet
the old language
of property
law is
time,
to this more
evanescent
turned
;
subject matter
same
a favorite
article
the two enclosure
of Trespass
"The Ancient
also crucial
Sites,"
there are
movements,
The digitized
differences.
enclosers
are
of property
with
or the
appeals
incompatibility
These
arguments,
that
the
case,
claims
frequently
to
century
eighteenth
arguments
In this
their
that
again,
War
post-Cold
sus" is invoked
the victims
that
movement
like newly
discovered
frontier
land, or
even
than
drained
marshland,
perhaps
privately
common
it is like well-known
land that all have
traditional values, the
tion, efficiency,
boundaries
of the market,
the saving of
lives, the loss of familiar liberties. Once
rights is needed
Indeed, the
Consen
"Washington
to claim that the lesson
commons
say that we
over the
claims
traditional
more
hurling at each other
claims about innova
of property
expansion
to
order
fuel progress.
the com
of
privatizations
some would
example,
the same
had
genetic
enclosure
rary expansion
property.
as in the fifteenth
century, propo
Today,
are
nents and opponents
of enclosure
incommensurable
over
? For
never
of intellectual
in battle,
are
in the
strong
particularly
are these property
"desert"
or are
violations
of
they simply
differences
rights deserved,
the public
trust,
vJo far I have argued that there are pro
between
the first
found similarities
enclosure movement
and our contempo
locked
ideas
land that dotted
intellectual
property, however, property
should be established
everywhere
Fencing off
Journal
title
is "The Ancient
to Websites"
Doctrine
of Online
D
dalus
(I. Trotter
of Trespass
Law
[Oct.
Spring
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2002
Doctrine
Hardy,
toWeb
1996]
Y]
: art.
7).
James
on
Boyle
intellectual
property
costs implies a corre
to increase the strength of
your plans to use it for
crops. By contrast, a gene
growing
an MP3 file, or an image may
sequence,
use does
be used by multiple
;
parties my
not interfere with yours. To simplify a
this means
that
analysis,
complicated
overuse
that
the depredations
through
transcribing Aristotle's
painstakingly
Poetics. In the middle
lies the Gutenberg
of the
printing press. Three-quarters
are
affect fields and fisheries
generally
not a problem with intellectual
property.
turn
to this statement
(The exceptions
in the interest of
out to be fascinating;
way along the line is a photocopying
At the end lies the Internet. At
machine.
each stage, copying costs are lowered:
ever more
text becomes
Aristotle's
freely
interfere with
brevity
Thus,
Iwill ignore them entirely.)
one cause of tragedy on the
does not
commons
generally
earthly
of the mind.
arise on the commons
not a problem.
But
is normally
Overuse
to create the intel
what about incentives
lectual
resources
in the first place
?
Here intellectual
property,
especially
in our digitized
age, seems at first glance
It has long
to pose a unique problem.
for
been relatively
easy
pirates to pro
duce unauthorized
copies of poems,
treatises, and musical
novels,
composi
tions. In the language of the economists,
and in some
it has long been difficult,
to stop one
cases virtually
impossible,
unit of an intellectual
good from satisfy
an
number
of users at zero
infinite
ing
cost.
A
conclusion
familiar
marginal
an
:
seems irresistible
without
ability to
cre
protect their creations
against theft,
an
earn
ators will be unable to
adequate
incen
living. There will be inadequate
tives to create. Thus the law must
step in
called an intellec
and create amonopoly
tual property
right.
This is the standard
argument
in favor
property
rights, but it has
a historical
dimension,
recently acquired
over time. After
a
of expansion
teleology
all, in our digitized
age, it is easier than
ever before for pirates to copy not just a
a record
book, but a film, a photograph,
a drug formula, a
ed piece of music,
the list goes on.
computer program
historical
the
lowering of copying
Surely
dalus
sponding
intellectual
need
Imagine
property
rights.
a line. At one end sits amonk,
and widely
accessible;
plete text is currently
indeed,
available
the com
in both
to anyone with access
and English
to the Internet (at <www.perseus.tufts.
edu>).
some
the assumption
Among
analysts,
Greek
seems
to be that the strength of intellec
tual property
rights must correspond
to the cost of copying. The
like this :To
goes something
argument
we need no
deal with the monk-copyist,
con
intellectual
property
right; physical
is enough. To deal
trol of the manuscript
with the Gutenberg
press, we need the
Statute of Anne. But to deal with the
Internet, we need the Digital Millen
nium Copyright Act, the No Electronic
inversely
Theft Act, the Sonny Bono Copyright
Term Extension
Act, and perhaps even
Anti
of Information
the Collections
As copying costs
Piracy Act. Why?
intellectual
zero,
property
approach
rights must approach perfect control.
of product
And if a greater proportion
is now in the form of
then obviously we have an
reason to need strength
independent
A five-dollar
ened protection.
padlock
would do for a garden shed, but not for a
value
and GNP
information,
of intellectual
l8 D
and transmission
Spring
vault.
Like any attractive but misleading
this one has some truth. The
argument,
Internet does lower the cost of copying
illicit copying. The same
and facilitates
also lowers the costs of pro
technology
and advertising
distribution,
duction,
2002
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increases
and dramatically
the potential market.
the size of
Is the "net" result, then, a loss to
such that we need to in
rights-holders
a
crease protection
in order to maintain
constant
level of incentives
? The
answer
is not self-evident.
A large, leaky market may actually
more revenue than a small,
produce
more,
tightly controlled market. What's
the same technologies
that allow for
cheap copying also allow for swift and
the best
search engines
encyclopedic
detection
device for illicit copying ever
to say,
Itwould be impossible
invented.
on the basis of the evidence we have,
content are
that owners of protected
better or worse off as a result of the
Internet.
My
intuition
experience
nologies
- as
well
as our historical
with prior "dangerous"
such as the VCR points
tech
that copyright
strongly to the possibility
holders are better off. In any case, there
either to
simply isn't enough evidence,
or
to
intuition
support my
support the
that as copy costs decline
property
rights must be
conclusion
intellectual
Furthermore,
given the
strengthened.
costs of
known static and dynamic
and the constitutional
monopolies,
to
the progress of
encourage
injunction
science
and useful arts, the burden
be on those requesting
expanded
intellectual
property
rights to prove
their value.
should
Another
in defense
property
offered
argument
commonly
of granting new intellectual
rights stresses the increasing
of products
that use,
importance
or
in
information
process
embody,
today's global economy.
Perhaps the
commons
of the mind requires enclo
sure because
it is now such a vital sector
of economic
agriculture
of
activity. The importance
to the economy was certainly
one of the arguments
for the first enclo
sure movement.
(Lovers of Patrick
O'Brian's
novels may remember Mat
urin's stolid silence in the face of an
Fencing off
ideas
insis
vehement
increasingly
to
that enclosure was essential
corn
to
the
necessary
produce
fight the
admiral's
tence
war.)
come to another
Napoleonic
Here we
ence between
the commons
big differ
of the mind
As has fre
and the earthly commons.
out
been
quently
pointed
(by Jessica
and Richard
Litman, Pamela Samuelson,
A. Posner,
information
among others),
are
out of
made
products
frequently
of
other
information
prod
fragments
ucts ;one person's
information
output is
someone
else's information
input. These
inputs may be snippets of code, discov
eries, prior research,
images, genres of
of
cultural
databases
work,
references,
all
single nucleotide
polymorphisms
can function as raw material
for future
innovation.
And every potential
increase
over such
of protection
also
products
raises the costs of, or reduces access to,
to create new products.
the raw material
to strike.
is difficult
The right balance
One Nobel
economist
has
Prize-winning
to
that it is actually impossible
an
efficient"
produce
"informationally
or not it is impossible
market.3 Whether
in theory, it is surely a difficult problem
even if en
in practice.
In other words,
closure of the arable commons
always
produced
gains (itself a subject of
enclosure
of the information
debate),
commons
some potential
to
has
clearly
claimed
harm intellectual
innovation. More
even
property
rights,
though they sup
do not
posedly offer greater incentives,
ensure greater intellectual
necessarily
3 Sanford
"On
the
Efficient
J. Grossman
Impossibility
Markets,"
and
Joseph
E. Stiglitz,
of
Informationally
American
Economic
Review
(1980) 1393.
D
dalus
Spring
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2002
19
70
James
on
Boyle
intellectual
ware
just the oppo
Sometimes
productivity.
site may be true.4
property
so far have taken as a
IVJLy arguments
to which
various
the
given
problems
intellectual
laws have
modern
property
I have discussed
the
been a response.
extent
works
well
as it did for the arable
commons,
the effects of an in
a
society and
global Internet.
I speak of enclo
that when
into account
talking about increases in the
new
level of rights :protecting
subject
matter
for longer periods of time, crimi
it
certain technologies,
making
nalizing
even
to
cut
fences
through digital
illegal
if they have the effect of foreclosing
pre
lawful uses, and so on.
viously
I have not yet done is ask
What
the term offensive.
The point, how
is
the
that
ever,
open quality of the cre
ative enterprise
spreads ; it is not simply
a donation
a
of program or awork to the
a continual
accretion
public domain, but
in which
all gain the benefits
of the pro
to give their
gram on pain of agreeing
own additions
back to
and innovations
find
the communal
fact of the Internet
the brute
whether
a series of licens
software always remains available.6
the code,
Users may add to or modify
on
it
it into
and
build
may
incorporate
their own work, but if they do so then
the new program
created is also covered
as
GPL.
the
Some
by
people refer to this
the "viral" nature of the license; others
the logic of enclosure
commons
of the mind as
for the
Remember
sure, I am
under
the license remains
ware, provided
attached and the "source code" for the
to which
taking
formation
is released
es, the most
important being the Gen
or GPL. The GPL
eral Public License,
specifies that anyone may copy the soft
project.
software movement
open-source
that either rivals
has produced
software
or exceeds the
of
capacities
productive
Its
conventional
software.
proprietary
The
and
old assumptions
actually
the need for in
forces us to reconsider
- at
centives
least in certain areas. But
unsettles
that cannot be evaded.
this is a question
in the way that
For anyone interested
networks may embody a new
computer
an
mode of collaborative
production,
case to study is the open
exemplary
source software movement.5
This soft
on the
level is
enterprise
as are the various technical
impressive,
to its strengths.
encomia
adoption
But the most
remarkable
software
open-source
aspect
movement
of the
is
as a new kind
to see. It functions
:
of those who
of social system many
harder
4 For
a more
Boyle,
"Cruel,
Analysis,
Intellectual
(2000):
technical
Price
see James
Economic
account,
or Lavish?
Mean,
Property,"
2007,
<http
and Digital
Law Review
Vanderbilt
of Linux
and
(Cambridge,
.pdf
:
Free for All How
Undercut
Software Movement
(New York: HarperBusiness,
Wayner,
Moglen,
and
Software
>.
;Peter
Pub.,
2001)
Linux and the Free
"Anarchism
the Death
Revolution
the High-tech
2000).
Triumphant
of Copyright,"
See
Titans
also
:Free
in the
online journal First Monday (1999), <http ://
emoglen.law.columbia.edu/publications/
anarchism.html>.
20 D
536
The Rebel Code :The Inside Story
the Open Source
:Perseus
Mass.
Eben
part of the software
://www.vanderbilt.
edu/Law/lawreview/vol536/boyle
5 Glyn Moody,
dalus
to the movement
by writing
do so as volunteers,
contribute
Discrimination
Spring
or
6 Proprietary,
is
software
only,"
"binary
once
the source
code
released
only
generally
into machine-readable
has been
compiled
code
object
to the user.
mer,
and
a form
that is impenetrable
format,
a master
Even
if you were
program
if the provisions
of the Copyright
Act,
the appropriate
not forbid
you
licenses,
from
and
the DMCA
so, you would
doing
to modify
commercial
proprietary
so as to customize
ware
it for your needs,
a
or add a feature.
remove
Open-source
bug,
unable
programmers
a car with
ing
did
be
soft
that it is like buy
say disdainfully
"the hood welded
shut."
2002
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a
direct remuneration.
Here, it
seems, we have a classic public good
code that can be copied freely, and sold
cre
or redistributed
without
paying the
without
ator
or
creators.
if this
Skeptics, of course, wonder
can be sustained.
mode of production
incentives
There seem to be inadequate
to ensure
continued
innovation.
and
productivity
is
si muove, as Galileo
Epur
reputed to have said in the face of Car
certainties
"And yet
dinal Bellarmine's
it moves."
about why
Still, there is no consensus
the system works. Perhaps the open
source software movement
is actually a
in
form
of
contemporary
potlatch,
one
extrava
the
which
gains prestige by
gance of the resources one "wastes."
it is simply a smart way for a
Perhaps
to build a resume
young programmer
that will eventually
pay off in a conven
why unpaid code writers do what they
matters
is that a certain num
do what
;
ber of people will do what the unpaid
code writers do. One may do it for love
of the species, another in the hope of a
better job, a third for the joy of solving
and so on. Each person also has
puzzles,
his or her own "reserve price," the point
he or she says "now Iwill turn
off Survivor and go and create some
on a
there
thing." But
global network,
are a lot of
and
with
numbers
people,
at which
that big, and information-overhead
that
even
hard
will
small,
projects
relatively
attract a sufficient number of motivated
than material
nation,
Like Yochai
len, I believe
is
that such speculation
irrelevant.7 My own
but
interesting
7 See Yochai
Linux
and
and Eben Mog
Benkler
"Coase's
Benkler,
the Nature
2001,
of
"[Incentives"
27S_Penguin.
on the
relying
as the motiva
"Anarchism
Triumphant."
a
and
metaphor,
Moglen,
is merely
to describe
human
metaphor
it's pretty
crummy.
the better
metaphor
I have
arose
as a
creative
activity
this before,
but
said
on
the day Michael
Faraday first noticed what happened when he
a coil
wrapped
of wire
around
a magnet
and
Current
in such a wire,
flows
spun the magnet.
but we don't
ask what
the incentive
is for the
to leave
electrons
rent
results
system,
which
from
we
home.
an
large-scale
the creation
centralized
coordi
has to be
process
size
modular, with "units" of different
and complexity,
each requiring
slightly
can be
all of which
different
expertise,
a
added together to make
grand whole.
we
://www.
unpublished
<http
law. duke. edu/pd/papers/Coase%
statement
For a seminal
pdfx
innate human
love of creativity
see
and skilled people to sustain the creative
structure to work
For the whole
I
or,
Penguin,
the Firm," October
draft,
tion,
of
distribution
We
say
that
the
cur
of the
emergent
property
The question
call induction.
ask
is 'what's
So Moglen's
the resistance
Metaphorical
Law says that
of
the wire?'
Corollary
to
if you wrap
the
on the
around
every person
planet
in the net
and spin the planet,
software
flows
work.
It's an emergent
of connected
property
Faraday's
Internet
human
another's
uneasy
question
network?
Ohm's
that they create
for one
things
and to conquer
their
pleasure
sense of
too alone. The
being
only
minds
to ask
is, what's
Moglen's
Law states
the resistance
the
Metaphorical
Corollary
that the resistance
of the
network is directly proportional
of the 'intellectual
strength
to the
So the right answer
resist
the resistance."
D
of
dalus
to the field
property'
econodwarf
Spring
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2002
system.
is,
21
Fencing off
ideas
costs of transmission,
information
shar
zero.
Assume
and
ing,
copying approach
amodular
creation process. With
finally
it just doesn't matter
these assumptions,
process.
without
need.
a random
Assume
is
the system works
structures
in different people,
incentive
a global network. Assume
also that the
is
the movement
job. Or perhaps
an
driven by what Karl Marx considered
:
innate aspect of our "species-being"
namely, the urge to create, which drives
human beings to labor out of love rather
tional
for why
explanation
this:
to
James
on
Boyle
intellectual
property
can work on the sendmail program, you
on the search
algorithms. More
likely,
lots of people
try to solve the sendmail
and
problems,
algorithm
commu
are
the
their products
judged by
ones
and
the
best
adopted. Under
nity
- an
ad hoc mode of
these conditions
and search
production
anarchism
Kropotkin
innovation
combines
that curiously
and entrepreneurialism,
- we
will get
and Adam Smith
without
and productivity,
on the proprietary model.
having to rely
more
What's
(and this is a truly fasci
when
the production
twist),
pro
nating
cess does need more
centralized
coordi
some governance
that guides
nation,
bits are most produc
how the modular
it is at least theoretical
tively associated,
that we can come up with
ly possible
control system in exactly the same way
is potentially
distributed
production
recursive.
Governance
processes,
the
;
too,
can be assembled
through distributed
a
on
methods
by people
global network,
with widely
skills,
varying motivations,
and reserve prices.
Again,
skeptics will have their doubts.
theorist I know dis
One organization
misses
of anarchic coordi
the possibility
nation as "governance
by food fight."
ever been on an organi
Anyone who has
or
been part of a global
zational
listserv,
process run by people who
production
on brains and short on social
are
long
skills, knows
tion is. Epur
how accurate
si muove.
that descrip
in the language of computer
pro
soft
does the open-source
grammers,
ware movement
"scale" ? Can we gener
alize anything
from this limited exam
But,
types of production,
ple ?How many
and research fit into the
innovation,
I have just described?
After all,
model
and inven
for lots of types of innovation
tion one needs hardware,
capital invest
data collec
real-world
ment,
large-scale
- in
all its facticity and infinite
tion, stuff
22 D
the open-source
Maybe
incen
has solved the individual
tives problem,
but that's not the only
recalcitrance.
model
types of inno
problem. And how many
are as
vation or cultural production
as software?
modular
own guess is that this method
of
more common
we
is
than
far
production
realize. "Even before the Internet," as
My
some of my
to say
science,
law, education,
ing portentously,
in ways
and musical
genres all developed
are
I
that
similar to the model
markedly
have described.
"The marketplace
of
students
have
taken
ideas," the continuous
roiling develop
ment
in thought and norm that our
culture spawns, is itself an idea
political
that owes much more to the distributed,
model
than it does to the
nonproprietary
special
that we
case of commodified
innovation
intellectual
regulate through
law. It's not that copyright
and
rise
haven't
the
of
patent
helped power
it
it's
that
modern
civilization
;
just
to see them as the only
would be wrong
Indeed, the mot
engine of innovation.
property
toes of free software
have
development
in the theory of
their counterparts
and the open society. The
democracy
movement
its
describes
open-source
over closed and secretive
sys
advantage
tems concisely:
"given enough eyeballs,
all bugs are shallow." Karl Popper would
have
cheered.
I suspect that the in
to
of the sciences
creasing migration
models
ward data-rich,
processing-rich
it likely that a greater amount
will make
Furthermore,
of innovation
and discovery
could fol
low the distributed,
nonproprietary
of intellectual
Bio
model
production.
informatics
and computational
the open-source
biology,
at
project
genomics
the possibility
www.ensembl.org,
tributed data scrutiny
of dis
by lay volunteers
on the Mars
landing
that NASA used
all of these offer
data
dalus Spring 2002
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intriguing
a
future. And finally,
glances of possible
of course, the Internet is one big experi
ment
in distributed
cultural production.
own
would
include modes
My
utopia
of nonproprietary
intellectual
produc
a scaled-down
tion flourishing
alongside
but still powerful
intellectual
property
regime. Of course, my utopia hinges on
a hunch about the future. Still, there is
some possibility (Imight say hope) that
we
could have aworld
more
in which
intellectual
much
is free -
production
that it is not subject to
"free" meaning
centralized
control, and "free" meaning
are available without
that its products
Insofar as this is at least a possi
payment.
ble future, then surely we should think
twice before
it.
foreclosing
Yet foreclosing
is pre
this possibility
lawmakers
and
what
government
cisely
are now
in America
regulators
doing.
recent
The point about the dramatic
of intellectual
are
locked in battle,
currently
to
each appealing
and some
conflicting
times incommensurable
claims about
enclosure
innovation,
efficiency,
limits of the market.
justice,
and the
But should there be a second enclosure
Do we know that property
in
this
rights
sphere will yield the same
movement?
surge of productive
energy that they did
when applied to arable land?
I think the answer is a resounding No.
We are rushing to fence in ever-larger
stretches
of the commons
without
convincing
that enclosure will
tivity or innovation
reason
good
hurt them.9
of the mind
economic
evidence
help either produc
and with very
to believe
itmay actually
I have argued elsewhere,
this
across
should
bother
the
process
people
from civil libertar
spectrum,
ideological
As
ians to free marketeers.
scientists
Researchers
and
property
expansion
in database protection
bills and
rights
directives
that extend intellectual
prop
be particularly worried
is
what
by
Up to now, the
happening.
American
of
science, for all its
system
erty rights to the layer of facts, in the
in the
efflorescence
of software patents,
validation
of shrink-wrap
licenses that
flaws,
bind third parties, in theDigital Millen
should
has worked
well;
astoundingly
some of its fundamental
prem
changing
ises, such as by moving
property
rights
into the data layer, is not something
to
nium
be done lightly.
intellectual
acute at
The dangers are particularly
the moment
for three reasons. First,
under the conditions
that currently
commons
obtain in our digitized
of the
new
creation
the
of
intellectual
mind,
Copyright Act's anticircumven
tion provisions
is not merely
that they
the
of
mode
hamper
nonproprietary
unfairly and
The
point is rather
justification.
that they run the risk of ruling it out
production
without
property
to create
altogether.8
V Ve have come full circle. As I have
shown, we are inmany ways in the
midst of a second enclosure movement.
The
opponents
and proponents
of
a
rights tends, in vicious circle,
still further demands
for new
intellectual
property
rights. The argu
ment
is a little too complicated
to lay out
now
erected
impediments
being
solutions.
uted, nonproprietary
or Lavish?"
"Cruel, Mean,
to distrib
See
also
Boyle,
8 This
has been
point
by, inter alia,
ably made
Samuelson,
Jessica Litman,
Jerry
Benkler.
and Yochai
Reichman,
Larry Lessig,
Pamela
Each
on
has a slightly
different
focus
and emphasis
out the
the problem,
but each has pointed
Some
of the legislation
is also con
involved
under
the First Amend
dubious,
stitutionally
ment
and Art i sec. 8 cl. 8 of the Constitution,
9
but
that
is a point
D
for another
dalus
Spring
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paper.
2002
23
Fencing off
ideas
James Boyle
on
intellectual
property
is
the position
here.10 But in essence
:
once
a
new
this
intellectual
property
over some infor
has
been
created
right
to ensure
mational
good, the only way
of that good is to give
efficient allocation
the rights holder the ability to charge
each con
every user the exact maximum
sumer iswilling
to pay, so that the mar
ket can be perfectly
segregated by price.
In order to protect
their ability to set
for digital intellectual
property
cost to produce
whose
goods,
marginal
in fact approaches
and distribute
zero,
the rights holders will inevitably
argue
that they need even more changes of the
rules in their favor: relaxed privacy stan
prices
dards, so they can know more about
consumers'
enforceable
price points;
or
so
contracts,
click-wrap
shrink-wrap
consumers
can
to
term
the
that
be held
of a particular
license, no matter how
in antitrust
restrictive
;and changes
rules, to allow for a variety of practices
as resale
that are currently
illegal, such
various
forms of
maintenance
and
price
holders
"tying." Rights
that they need
will
also claim
technical
changes with
for example,
the creation
legal backing:
of personalized
digital objects surround
ed by state-sanctioned
digital fences,
users
are tied to
that
particular
objects
so
that
read
and particular
computers,
on
is
machine
either
e-book
your
ing my
a crime, or a
technically
impossible,
tort - or possibly
all three. My conclu
sion :extending
intellectu
ever-stronger
a very
is
al property
slippery slope.
rights
Second, the broader the scope of intel
more
the
lectual property
rights, the
of the Internet that have
characteristics
to civil libertari
it so attractive
made
ans - its distributed,
charac
anonymous
or
to
its
resistance
control
ter,
filtering
or private entities,
its global
by public
?o The
Mean,
full version
is given
in Boyle,
or Lavish?"
24 D
dalus
Spring
"Cruel,
nature
- start
to seem
like vices
rather
The process of trying to
the Net safe for price discrimina
than virtues.
make
tion has already begun. Yet as Lawrence
a
Lessig has argued, this is fundamental
that ought to be made
as a side
and
deliberately
publicly, not
dubious digital
effect of an economically
enclosure movement.
Because of some
choice
political
threats, such as terrorism, we might
choose to live in a pervasively
monitored
electronic
in which
environment
identi
and thus regulability,
ty and geography,
have been reintroduced.
(In my own
view, the price is not worth paying.) But
to do so on the basis
of some bad micro
economic
about the needs of
arguments
the entertainment
industry and in the
absence of good empirical
and
evidence,
some of the most
to foreclose
interesting
new productive
in the
possibilities
that
would
be
well,
process
really sad.
in
of the
the
favor
Third,
arguments
new
enclosure
movement
depend
heavi
ana
complacent,
ly on the intellectually
unsound
of "neo
assumptions
lytically
liberal orthodoxy,"
the "Washington
consensus."
Convinced
that property
more
and
that
property
creating
good,
is
are
to
rights is better, neoliberals
primed
hand out patents on gene sequences
and
on compi
stem cell lines and copyrights
be ironic, to say
convic
the least, to let such neoliberal
tions determine
the fate of the informa
tion commons,
the one area where
the
lations
of facts.
Itwould
pros and cons of a property
regime need
to be most delicately
and also
balanced,
an area where
the possible
consequences
for the public good ought to be vigorous
ly and openly debated.
is to be done, then ? I cannot lay
What
a
out
full answer here, but Iwould
sug
we
two
broad
First,
gest
strategies.
ought
to insist on considerably
better empiri
cal and economic
evidence before sign
on to the
of the second
ing
proposals
2002
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All use subject to JSTOR Terms and Conditions
movement.
enclosure
serious
comparative
ies of the economics
we need a lot more.
be an annual
There
are a few
and historical
of innovation,
but
Indeed, there should
audit of our intellectual
by the General
are the costs -
system, perhaps
property
Office. What
Accounting
static and dynamic
and the benefits
our current intellectual
re
property
gime?
(through
ing scrutiny
ents of other
believer
properly
it deserves
the same
search
to the recipi
apply
state subsidies.
I am a firm
in intellectual
property
rights
and judiciously
such rights promise us awon
decentralized
system for the
;
balanced
of self-interest.
The
reshape perceptions
- a
idea that there is a public domain
- can
a
"commons
of the mind"
help
to be built around a reframed
coalition
of common
interest. In the
conception
culation
of ideas and facts is important
to anyone whose
significant
well-being
on intellectual
innovation
ly depends
and productivity
that is to say, every
citizen of the world.
in
tal threats but the very existence
of "the
environment"
itself. The environmental
movement
gained much of its political
out that there were
power by pointing
structural reasons why lawmakers were
deci
likely to make bad environmental
sions :a legal system based on a particu
lar notion of what "private property"
entailed, and a technological
tendency
to treat the world as a simple, linear set
of causes and effects, ignoring the com
should press a similar argu
- as
I have done here - in the case
interest
sense, that common
be
the
realization,
might
spurred by
to intellectual
interre
greater attention
the
cir
that
freest
lationships,
possible
is automatically
good.
Second, we need to make clear the
current dangers to the public domain,
the same way that environmental
activists
in the 1950s and 1960s made
not
environmen
visible
only particular
erly.
We
narrowest
derfully
But this is a
of innovation.
promotion
rational belief in particular
rules based
on
an
not
evidence,
unques
empirical
tioning faith that any increase in intel
rights
ideas
of the public domain.11 We should
a concept
like the
exploit the power of
to
to
both
and
domain
public
clarify
that we
lectual property
Fencing off
analysis. Small surprise, then, that law
makers were not able to protect
it prop
ment
all, this is one of the largest
subsidies given by government
its granting of patents and
copyrights);
applied,
of
After
industry
among natural
interrelationship
In
of
both
these
sys
systems.
conceptual
tems, the environment
actually disap
peared; there was no place for it in the
plex
stud
The poem with which
I began this
some
:
contained
advice
And
essay
geese
will stilla common lack/Till theygo and
steal it back.
I can't match
the terseness or the
we
But
if
rhyme.
blithely assume that
the second enclosure movement
will
have the same benign effects as the first,
we may look like very
silly geese indeed.
il An
be
version
expanded
found
in "A Politics
Environmentalist!
for
can
this argument
Intellectual
Property
the Net,"
Duke Law
of
of
Journal 47 (1) (1997): 87, <http://www.
law. duke.
htm
edu/boylesite/intprop.
D
dalus
Spring
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All use subject to JSTOR Terms and Conditions
2002
>.
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