The Project Gutenberg eBook, The Public Domain, by James Boyle

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Title: The Public Domain Enclosing the Commons of the Mind

Author: James Boyle

Release Date: December 13, 2008 [eBook #27526]

Language: English

***START OF THE PROJECT GUTENBERG EBOOK THE PUBLIC DOMAIN***

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Copyright (C) 2008 by James Boyle.

The Public Domain

Enclosing the Commons of the Mind

by James Boyle

In this enlightening book James Boyle describes what he calls the range wars of the information age—today's heated battles over intellectual property. Boyle argues that just as every informed citizen needs to know at least something about the environment or civil rights, every citizen should also understand intellectual property law. Why? Because intellectual property rights mark out the ground rules of the information society, and today's policies are unbalanced, unsupported by evidence, and often detrimental to cultural access, free speech, digital creativity, and scientific innovation.

Boyle identifies as a major problem the widespread failure to understand the importance of the public domain—the realm of material that everyone is free to use and share without permission or fee. The public domain is as vital to innovation and culture as the realm of material protected by intellectual property rights, he asserts, and he calls for a movement akin to the environmental movement to preserve it. With a clear analysis of issues ranging from Jefferson's philosophy of innovation to musical sampling, synthetic biology and Internet file sharing, this timely book brings a positive new perspective to important cultural and legal debates. If we continue to enclose the "commons of the mind," Boyle argues, we will all be the poorer.

Professor James Boyle's website: www.thepublicdomain.org

James Boyle is William Neal Reynolds Professor of Law and co- founder of the Center for the Study of the Public Domain Duke Law School. He joined the faculty in July 2000. He has also taught at American University, Yale, Harvard, and the University of Pennsylvania Law School. He is the author of Shamans, Software and Spleens: Law and Construction of the Information Society and The Shakespeare Chronicles, a novel about the search for the true author of Shakespeare's works. He co-authored Bound By Law, (CSPD 2006) an educational comic book on fair use in documentary film, and is the editor of Critical Legal Studies (Dartmouth/NYU Press 1994), and Collected Papers on the Public Domain (Duke: L&CP 2003). In 2003 he won the World Technology Award for Law for his work on the "intellectual ecology" of the public domain, and on the new "enclosure movement" that threatens it; (a disappointing amount of which was foretold in his 1996 New York Times article on the subject.) Professor Boyle has written on legal and social theory, on issues ranging from political correctness to constitutional interpretation and from the social contract to the authorship debate in law and literature.

For the last ten years, his work has focused on intellectual property. His essays include The Second Enclosure Movement, a study of the economic rhetoric of price discrimination in digital commerce, and a Manifesto on WIPO. His shorter pieces include Missing the Point on Microsoft, a speech to the Federalist Society called Conservatives and Intellectual Property, and numerous newspaper articles on law, technology and culture. His book reviews on social theory and the environment, the naturalistic fallacy in environmentalism, and on competing approaches to copyright have appeared in the Times Literary Supplement. He currently writes as an online columnist for the Financial Times' New Economy Policy Forum. Professor Boyle teaches Intellectual Property, the Constitution in Cyberspace, Law and Literature, Jurisprudence and Torts. He is a Board Member of Creative Commons which is working to facilitate the free availability of art, scholarship, and cultural materials by developing innovative, machine-readable licenses that individuals and institutions can attach to their work, and of Science Commons, which aims to expand the Creative Commons mission into the realm of scientific and technical data. He also leads the steering committee which is setting up the Learning Commons, a division of Creative Commons aimed at facilitating access to open education resources. He is a member of the academic advisory boards of the Electronic Privacy and Information Center, the Connexions open-source courseware project, and of Public Knowledge. In 2006 he received the Duke Bar Association Distinguished Teaching Award.

Yale University Press

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The Public Domain

Enclosing the Commons of the Mind

by James Boyle

Preface: Comprised of at Least Jelly? 1

Each person has a different breaking point. For one of my students it was United States Patent number 6,004,596 for a "Sealed Crustless Sandwich." In the curiously mangled form of English that patent law produces, it was described this way: 2

A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter.1 3

"But why does this upset you?" I asked; "you've seen much worse than this." And he had. There are patents on human genes, on auctions, on algorithms.2 The U.S. Olympic Committee has an expansive right akin to a trademark over the word "Olympic" and will not permit gay activists to hold a "Gay Olympic Games." The Supreme Court sees no First Amendment problem with this.3 Margaret Mitchell's estate famously tried to use copyright to prevent Gone With the Wind from being told from a slave's point of view.4 The copyright over the words you are now reading will not expire until seventy years after my death; the men die young in my family, but still you will allow me to hope that this might put it close to the year 2100. Congress periodically considers legislative proposals that would allow the ownership of facts.5 The