The Public Domain

In his recent book, The Public Domain, Professor James Boyle makes a compelling argument that intellectual property rights, particularly copyright, have become more and more muscular over the last several decades at the expense of the intellectual process itself. Boyle argues, rightly, I think, that the dominant narrative of late is that as the cost of reproducing copyrighted works approaches zero (as it does with the Internet) the danger of illicit copying increases dramatically. As a result, ever more expansive rights and harsher penalties for infringement are required to met the danger.

Beyond expanding rights, this danger also requires ever more rigorous control over copyrighted works and eventually the internet itself. This system of perfect control, as Boyle calls it, requires that even authorized users of copyrighted work never be permitted to "buy" a work. Instead, users may only license works for a tightly limited set of uses defined and controlled by the content industries. Further, to protect copyrighted works, better digital fencing is needed to keep unauthorized users out. Laws that prohibit cutting of the digital fencing even when the purpose of cutting the fencing is to make a non-illicit fair-use of the protected work. Fair-use itself must be viewed as the grudging largess of the content industries to society at large. And an anachronistic largess at that since better technology and tighter legal control over copyrighted works will make any unauthorized use of such works nearly impossible. Eventually, the anonymity of the internet must also be done away with to make it a safe place for copyrighted work ...etc.

Boyle calls this narrative the "Internet Threat" and it is not without its truth. He concedes that there is a very real danger that valuable intellectual development might be stifled because the internet makes it so easy to copy the work of others. Nevertheless, the internet threat narrative ignores the benefits to copyright owners when new technology reduces reproduction and distribution costs. The internet has increased the rate of illicit copying of musical works but it has concomitantly made it cheap and easy for individual musicians and the industry as a whole to market and distribute their products.

The internet threat also misapprehends the nature of intellectual property. Intellectual property is different than ordinary property in important ways. For instance, if I am using my couch, no one else may use the same couch (except maybe my wife or a friend and, in the case of the latter, only with my permission) and I can exclude others from enjoying my couch fairly easily by simply keeping it locked inside my apartment. Intellectual property is not like this. A manuscript with my ideas in it can be locked in my living room, but the ideas inside cannot. Ideas tend to circulate. Of course, if I am careful to record my ideas only in a single manuscript and keep it secure and never discuss my ideas, then it is unlikely my ideas will circulate. But that has more to do with the costs of reproducing that manuscript than with the nature of my ideas and, as I already mentioned, the internet tends to reduce copying costs until the approach zero. So that if I record those ideas online instead of in a manuscript it is ever more likely that they will circulate.

Even more important than the free-wheeling nature of idea is that it is a good thing that ideas circulate. Society and culture cannot thrive without a constant intercourse of ideas. Thus, from a collective standpoint, we want ideas to circulate; we need them to do so.

However, there must be a balance. If authors or creators have no incentive to create because they cannot appropriate any of the value of their ideas, then culture and society will stagnate just as surely as they would if all ideas could be locked up perpetually. The framers of the Constitution realized this. As a result, they made a compromise. Article I Section 8 Clause 8 of the Constitution, the Copyright Clause, empowers Congress to "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This clause limits Congress's power to grant exclusive rights over ideas to their authors in a two important ways. First, the introductory clause states the purpose for granting such a power at all and so the extent of the power should be limited in light of that purpose. That is, Congress is empowered to grant exclusive rights only for the purpose of promoting intellectual development. So, if the intellectual property laws Congress passes are so muscular that they stifle intellectual progress rather than promote it, or if Congress passes those laws for some other purpose, say out of a political desire to create parity between the ownership of ordinary property and the "ownership" of ideas, then the constitutional validity of those laws is suspect.

The thrust of Boyle's book, however, is not that modern intellectual property laws are unconstitutional, rather, Boyle thinks that the idea of granting limited exclusivity over ideas in the hopes of promoting intellectual development is a good one independently of its status as a constitutional mandate. So throughout the book, he endeavors to detail the ways in which the modern IP regime undermines intellectual development and why most people do not seem to notice.

The entire book is available for free here. It is also available for good old fashion purchase in bookstores. And, if you are so inclined, you can also read the book's blog here or follow it on twitter here.