NOTE-1021: Boyle — The Public Domain

Contribution

It gives the public domain an affirmative account. Earlier critics of intellectual property argued against monopoly. Boyle says they never said what lay outside it: “The opposite of property, or perhaps we should say the opposites of property, are much more obscure to us than property itself.” (p. 38). The book names a pattern across copyright, patent, database and anticircumvention law, the “second enclosure movement” (ch. 3). It gives the pattern’s causes: the confusion of intellectual with physical property, a fear of new copying technology, and a bias against open systems. Its remedy is a movement modelled on environmentalism, which had to “invent” the environment before it could protect it (Preface p. xv; ch. 10). The Preface states three goals: to explain intellectual property, to show that policy “is going the wrong way”, and to explore “property’s outside” (pp. xiv–xv).

Key insight

The limits on a right are part of the right. Boyle’s figure is the public road through a private field: fair use is not trespass excused by need but a road “you never owned in the first place” (p. 66). “The holes matter as much as the cheese.” (p. 69). From this comes the book’s main corollary. Cheaper copying is usually taken to call for stronger rights. The “Sony Axiom” says the reverse: “cheaper copying makes the limitations on copyright more rather than less important” (p. 71), because without them control over copies becomes control “over the very architectures of our communications technology” (p. 71).

Assumptions

• A utilitarian baseline. Rights are justified as incentives to create and distribute nonrival goods (ch. 1). Natural and moral rights are taken seriously (pp. 27–35, 227–229). Boyle’s answer is that every such scheme still limits the right in time, and once it does, “how long” is an empirical question (p. 229).
• The public goods model is qualified, not assumed. Creation has non-market motives. Cheap copying also cheapens distribution. Lead time and tied goods can be enough (pp. 3–4). The Westlaw story shows that a legally unprotected good can be made excludable by passwords, contracts and tied services (pp. 213–216).
• A presumption against monopoly. Without evidence either way, the burden lies on whoever asks the state to stop copying (p. 207).
• Definitions. The public domain is material free of intellectual property rights. It includes, on the “granular” view Boyle adopts, the reserved spaces inside rights, such as fair use (pp. 38–39). A commons is a resource to which a group has access and use rights, perhaps on conditions. Boyle counts it a commons only “if the whole society has access” (p. 39).
• Scope. The law discussed is mostly US law to 2008, with UK and EU material in ch. 9. The book was written before streaming, and its technology chapters stop at the iPod, Grokster and the DMCA cases.

Key results

The results are arguments and case studies. Only ch. 9 is a sustained empirical test.

• Why intellectual property (ch. 1). Copyright, patent and trademark are presented as decentralized cultural, innovation and commercial policy (pp. 4–7). The costs are shown by term. About 85 percent of holders did not renew after 28 years (p. 9). Most twentieth-century culture is “copyrighted but unavailable”, much of it orphan works (pp. 9–12). Boyle’s “very conservative” alternative is a marked copyright of 28 years, renewable once (p. 14).
• The Jefferson Warning (ch. 2). From the 1813 letter to McPherson: intellectual property is not natural right; there is no entitlement to it; it should be short; it is a monopoly; and choosing to have it is only the first choice in a long series (pp. 21–22). Macaulay, Madison, Smith and Condorcet are shown to share it (pp. 22–32). The droits d’auteur tradition still limits the right, because “The moral rights view simply proved too much.” (p. 33). Romantic authorship justifies fencing “the resources of the public domain” by imagining an author “creating something entirely new—not recombining the resources of the commons” (p. 33, quoting Boyle’s 1996 book).
• The second enclosure (ch. 3). The commons of the mind differs from the grassy commons in two ways. It is nonrival, so overuse is not the problem (pp. 47–48). And outputs are inputs, so every extra right raises the cost of the next work (p. 48), up to Heller and Eisenberg’s “tragedy of the anticommons” (p. 49). The older law was “braided”: a thin layer of rights around a commons (p. 50). Its triggers were placed where commercial competitors act. Digital copying lets them be “activated by individual footsteps” (pp. 50–52).
• The Internet Threat (ch. 4). The story is that “The strength of intellectual property rights must vary inversely with the cost of copying” (p. 60), so that as copying costs approach zero rights must “approach perfect control” (p. 61). Boyle answers with “20/20 downside vision”: the threats of new technologies are seen, their gains are not (p. 63). Sony is the counterexample, since video rental came to make up “more than 50 percent” of film revenue (p. 64). On fair use he concludes “The holes matter as much as the cheese.” (p. 69). Then come the Sony Axiom (p. 71) and the Napster and Grokster rulings, which he reads as moving from Sony toward control of technology (pp. 71–82). His test is to ask whether a network like the Internet would be approved today. The answer is no: “The logic of control is not the logic of the Net.” (p. 81).
• The Farmers’ Tale (ch. 5). An allegory of barbed wire across public roads, set against the “Internet Threat” story (pp. 83–87). The DMCA forbids cutting digital fences even for fair use. Boyle argues this is unconstitutional, by a “red dot” thought experiment: a mark that lets owners switch off fair use (pp. 96, 105–109). Reimerdes treated DeCSS as an epidemic (pp. 100–101). Skylink read the act narrowly to protect competition (pp. 116–117). Boyle concedes that most feared harms “remain as just that: prophecies” (p. 119). He would not put the DMCA in the top three bad initiatives (p. 118).
• Music (ch. 6). Patent pictures creativity as converging, copyright as diverging. Music, more “collective and additive”, fits copyright badly (pp. 122–124). The case: the received story derives “I Got a Woman” from a 1904 hymn. Boyle’s research assistant found a 1951 78 rpm record by the Bailey Gospel Singers, “I’ve Got a Savior”, with almost the same melody (pp. 127, 133–134). Charles likewise turned Clara Ward’s “This Little Light of Mine” into “This Little Girl of Mine” (p. 134). The method is “a lot more like welding, or bricolage, than it is like designing out of nothing” (p. 135). “Gold Digger” loops the melody through Jamie Foxx and licensed it (pp. 138–140). The Legendary K.O. sampled that for “George Bush Doesn’t Care About Black People”, with two video versions (pp. 143–145). The law of sampling runs from Grand Upright (“Thou shalt not steal”, pp. 146–148) to Bridgeport’s “Get a license or do not sample” (pp. 149–151). Parody that “takes aim” at the original is favoured over satire that uses it for another target (pp. 151–152). JibJab, having claimed fair use itself, then sent a take-down to The Black Lantern (p. 153). Proposals: a compulsory licence for derivative work in commerce and stronger fair use outside it (p. 158); 28-year renewal, an exemption for samples under five seconds, and fair use extended to satire and collage (pp. 158–159).
• Science and technology (ch. 7). Software ended up under both copyright and patent. Courts kept software copyright narrow and made decompilation fair use, and the GPL then used copyright to build a commons (pp. 164–168). Patent law went the other way: “by means of a computer” turned algorithms, and then business methods, into patentable subject matter (pp. 168–171). Synthetic biology faces patents on Boolean logic in cells, with no mature “prior art” to limit them (pp. 171–176). Boyle advises against using copyright to make a biobricks commons, and for putting the parts in the public domain (pp. 176–177).
• A Creative Commons (ch. 8). Creative Commons is a private “hack” that replaces “all rights reserved” with “some rights reserved” (p. 182). Through it “a commons has been made out of private and exclusive rights” (p. 184). Open source works socially. With Benkler, Boyle argues that the motives do not matter: given varied reserve prices, a global network and modular tasks, “it just does not matter why they do it. In lots of cases, they will do it.” (p. 189). After Carol Rose, this is a “comedy of the commons” (p. 192). The worldview behind current policy he calls “maximalism”, and he denies it is economic determinism or conspiracy (pp. 198–199). Legislative change, he says, has gone “only in one direction—outward” (p. 200). Privately built commons have limits. Orphan works cannot be fixed by contract, and a patent pool is “a privatized public domain, a park that only residents may enter” (p. 203).
• An Evidence-Free Zone (ch. 9). The natural experiment is the EU Database Directive (1996) against Feist (1991). The US industry grew more than twenty-five-fold since 1979 without the right (p. 210). After the directive, Europe had a one-time spike, then entry fell back. The US added about 900 databases while Britain added about 200 and Germany about 300, two thirds of which vanished (p. 211). Most cases concern databases that “would have been created anyway” (p. 211). The Commission’s own review found the impact “unproven” and the EU/US ratio falling from 1:2 to 1:3 (pp. 218–219), and kept the directive. On weather data, Boyle reports Europe returning about sevenfold on its investment and the US thirty-nine-fold (p. 221). On sound recordings, the Cambridge study for the Gowers Review put the cost of extension at £240–480 million (p. 226). Gowers then recommended no retrospective change in the term or scope of rights (p. 227).
• An Environmentalism for Information (ch. 10). The bias he names: “Call it the openness aversion. Cultural agoraphobia.” (p. 231). The test is three thought experiments set in 1991: the open network, free software and the volunteer encyclopedia (pp. 231–232). Environmentalism joined scattered interests through an idea (ecology) and an economics (externalities). A movement for the public domain could do the same, and its institutions are listed: EFF, Public Knowledge, Creative Commons, A2K (pp. 239–245). Eldred ends the book on the second enclosure “well under way” (pp. 247–248).

Claims

id	claim	strength	support
C1	Intellectual property is best understood as a limited state monopoly, and its limits are as important as the rights	moderate	historical argument (Jefferson, Macaulay, Madison, Condorcet); Mossoff’s contrary reading engaged in ch. 2 n. 19
C2	Cheaper copying makes the limitations on copyright more important (the Sony Axiom)	moderate	argument from Sony, decompilation and the DMCA cases; the counterfactual about video rental
C3	The commons of the mind is not threatened by overuse; its risk is under-access to inputs (the anticommons)	moderate	nonrivalry argument; Heller and Eisenberg; the notes concede the anticommons evidence is “equivocal” (p. 284)
C4	Much of the borrowing that founded soul, jazz and the blues would be illegal under today’s law and licensing culture	weak to moderate	one traced case (pp. 127–137), stated as one case: “By itself, it proves nothing.” (p. 138)
C5	Bridgeport’s one-note rule fails because samplers want the original, not a replica	weak	musicians’ accounts and Benjamin (p. 150); no data
C6	The EU database right did not raise database production and the US did better without it	moderate to strong	Maurer, Hugenholtz and Onsrud; the Commission’s own 2005 review (pp. 210–219)
C7	Open public data generates more wealth than cost-recovery pricing	moderate	Weiss and one further study, at second hand (p. 221)
C8	Legislatures have only ever expanded intellectual property	weak	”To the best of my knowledge, there are none” (p. 200); no survey
C9	We are systematically biased against open systems (the openness aversion)	weak	thought experiments and the one-way trend of legislation (pp. 231–236); no behavioural evidence

Concepts

• Public domain. Material free of intellectual property rights, either never ownable or expired. On the granular view, it includes the reserved spaces inside rights, such as fair use (pp. 38–39).
• Commons. A resource over which a group has access and use rights, perhaps on conditions such as share-alike. Boyle requires the whole society to have access (p. 39).
• Jefferson Warning. Five cautions from the 1813 letter (pp. 21–22).
• Second enclosure movement. The extension of property rights over the intangible commons, likened to the English enclosures (ch. 3).
• Internet Threat. The story that rights must rise as copying costs fall (pp. 53, 60–62).
• 20/20 downside vision. Seeing a technology’s threats to rights holders clearly and its opportunities not at all (p. 63).
• Sony Axiom. Cheaper copying makes copyright’s limits more important (p. 71).
• Braided strategy. A thin layer of rights threaded around a commons (p. 50).
• One-way valve. Copyright treats collective traditions as unowned raw material, then locks the individual works drawn from them (p. 129).
• Failed sharing. Losses from sharing that legal barriers prevent, “every bit as real” as losses from copying (pp. 182, 202).
• Maximalism. The worldview that intellectual property is like physical property and that more rights bring more innovation (pp. 198–199).
• Openness aversion. A systematic undervaluing of open systems and nonproprietary production (p. 231).
• Cultural environmentalism. A politics that makes the public domain visible as the environment movement made “the environment” visible (pp. 239–242).

Connections

The intellectual debts are stated. Lessig and Benkler come first (p. viii). Ostrom, Hess and Carol Rose are thanked for the governance of the commons (p. ix). The history draws on Hesse for the droits d’auteur, and on Litman, Patterson, Rose and Woodmansee. The music chapter relies on McLeod and Vaidhyanathan, Burkholder and Carroll (pp. 277–279). Chapter 8 is built on Benkler’s “Coase’s Penguin” and The Wealth of Networks (pp. 286, 289). Ostrom’s Governing the Commons (LIT-737) appears only in the notes, with Carol Rose, as nuance against Hardin’s tragedy (pp. 264, 266). The text never uses Ostrom’s design principles. Of Lessig’s books it cites The Future of Ideas and Free Culture (pp. 278, 293), not Remix (LIT-1298), which appeared the same year. It does not cite Jenkins (LIT-1121).

Bearing on the record

• LIT-1298 and NOTE-1023 (Lessig, Remix). The two books agree on the frame and differ in method. Three points of contact:
  1. The copy trigger. Lessig’s argument that copyright now reaches every ordinary use because digital use always copies (Remix, pp. 98–103) appears in Boyle as triggers that were set for industrial competitors and can now be “activated by individual footsteps” (pp. 50–52). Boyle adds why the triggers sat where they did: the law was “a form of horizontal industry regulation of unfair competition”, drafted by the affected industries (p. 51).
  2. Why remix needs the original. The Lessig NOTE asks whether recognizability of the source artifact could be a preservation target in its own right. Boyle gives a second, independent witness. Samplers do not re-create the riffs Bridgeport says they may re-create, because “The original beats have a totemic significance” (p. 150). Citing Benjamin, he says “cheap copying actually increases the demand for authenticity” (p. 150). Both authors assert this. Neither measures it.
  3. A difference of diagnosis. Lessig ends by blaming campaign money (NOTE-1023, Remix p. 294). Boyle says the cause is a sincerely held worldview, not “economic determinism or industry conspiracy” (p. 199). Boyle’s remedies for remix overlap with Lessig’s (stronger fair use for amateur work, a licence for commerce, renewal after 28 years). Boyle, unlike Lessig, rejects relying on technology to evade the law: “A system that can only function well through repeated lawbreaking is an unstable and dangerous one.” (p. 157).
• CLAIM-002 and QUESTION-002 (what survives a retelling). The music chapter is a worked chain for CLAIM-002. From “I’ve Got a Savior” to “I Got a Woman” to “Gold Digger” to The Legendary K.O., the melody and the phrase pattern carry through (“I’ve got a savior, Oh what a savior” becomes “I got a woman, way over town” becomes “There’s a Gold Digger, way over town”, p. 142). The message inverts at each step: a saviour, a generous woman, a mercenary one, then a president. Each stage is recognizably descended from an original it no longer resembles in function. The last step is identity of the artifact itself, since the K.O. looped the recording (p. 146). The chapter also shows the relations pulling apart. The received transmission story (a 1904 hymn) was wrong. Similarity of melody found the real source (pp. 127, 133). It would be a candidate CASE if the chain turns up again.
• CLAIM-210 (kind versus rendering). Copyright’s line between genre and song maps onto CLAIM-210. Genre-defining sequences such as the twelve-bar blues or the flattened fifth are left free. Charles’s borrowing “is not just copying the genre. It is copying the lines of the song within the genre.” (p. 154). Bridgeport’s advice to re-create a riff instead of sampling it amounts to an independent utterance of the same kind, with no fidelity to the source. Boyle’s report that samplers refuse it fits CLAIM-210’s point that kind-sharing is not transport.
• CLAIM-034 (fidelity among other goals). Acuff-Rose, as Boyle reads it, makes the goal of a rendering decide its legality. Parody that “takes aim” at its original gets favoured treatment as fair use. Satire that uses the original to hit another target does not (pp. 151–152). The K.O. song fails the parody test for that reason. This is a legal system sorting renderings by the goals CLAIM-034 lists.
• CASE-100 and CLAIM-332 (distributed uptake). Boyle’s account of the K.O. song adds a reason the redub in CASE-100 could reach a film only as a line: “Copyright acts as the barbed wire around mass media outlets.” (p. 158). A mashup whose rights cannot be cleared stays online. For CLAIM-332, the reserve-price argument (p. 189) explains production by the organized pattern (numbers, low overhead, modular tasks) and not by any member’s motive. That is the kind of explanation CLAIM-332 needs. But Boyle’s examples are of producing a commons, not of changing an outside institution. His evidence is the famous successes (Linux, IBM, Wikipedia), which is the biased sample QUESTION-119 warns of. So the book illustrates CLAIM-332’s form but does not test it.
• LIT-719 and LIT-737 (Ostrom; THEORY-149). LIT-719, the Nobel lecture, is Active and read. LIT-737, Governing the Commons, is Unavailable. The connection is real but thin, and mostly a contrast. THEORY-149 concerns users governing a subtractable resource they depend on, with clear boundaries and graduated sanctions. Boyle’s commons is nonrival, so the tragedy Ostrom’s institutions prevent does not arise (pp. 47–48). It is open to the whole society (p. 39), which removes the first design principle. Two points of contact are worth noting:
  1. The free-software governance Boyle describes resembles self-organised rule-making: community judgment of contributions, governance assembled by the same distributed method, and forking as exit (pp. 186, 190). Boyle does not compare it to Ostrom. Whether THEORY-149’s principles hold for nonrival commons is open.
  2. The arrangement in the book that most resembles a bounded Ostrom commons is the patent pool, which has members and excludes others. It is the one Boyle criticises, as “a park that only residents may enter” (p. 203). The book neither supports nor contradicts THEORY-149.
• Does not bear on CLAIM-220 or QUESTION-023. It has nothing on measuring what survives a rendering, or on insider vocabulary.
• No instruction for machine-learning practice, and not held by the anthology.

Limitations

• Argument from chosen cases. Except ch. 9, the evidence is cases picked to show the pattern. The music chapter says so: “By itself, it proves nothing.” (p. 138). The open-source chapter rests on its successes.
• Strong negatives without a survey. That legislation has moved “only in one direction—outward” (p. 200) rests on Boyle’s knowledge. The openness aversion is called a cognitive bias, but its evidence is thought experiments and the same one-way trend (pp. 231–236).
• Second-hand numbers. The weather multipliers (p. 221) and the database counts (p. 211) are reported from other studies and not examined.
• The music attribution is hedged. That “Ward” on the 78 label is Clara Ward is a guess (“might be”, p. 134), and the argument says “If I am right” (p. 135). The notes give the record’s title as “I Got a Savior” (p. 280), the text “I’ve Got a Savior”.
• Commons theory is thin. The commons is defined in a paragraph (p. 39). Its governance, monitoring and sanctions are not analysed, and Ostrom appears only in notes. The comparison with environmentalism is a strategic analogy, not a theory of the public domain. Boyle says the field lacks “a robust conception of the public domain” (p. 239).
• Dated. The law and technology stop in 2008. The sound-recording extension he reports as rejected was announced by the European Commission “As this book went to press” (p. 229).

Open questions

• Would sampled music lose its value if the samples were re-created? An answer would test C5, and through it Bridgeport’s premise.
• Do Ostrom’s design principles, built for subtractable resources with bounded users, transfer to nonrival commons such as free software or Creative Commons pools? Which ones fail? The book does not ask.
• Is the openness aversion a measurable bias? What experiment would show that people undervalue open systems relative to their outcomes?
• For the record: Lessig and Boyle now both assert that remix needs the recognized original. Should the question of recognizability as a preservation target be filed under QUESTION-002, with this chain of borrowing as its case?