Weekly E-book: The Public Domain


It starts with a sandwich.

More specifically, it starts with a patent: US Patent Office No. 6,000,596, the Sealed Crustless Sandwich.

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 therebetween. 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.

It is far from the worst patent ever issued, yet for one of James Boyle’s students, it was over the line. His reasoning? “I just thought that there were limits. Some things should be sacred.”

That nothing is sacred reveals exactly the struggle of contemporary laws dealing with intellectual property. The rhetoric on both sides has been equally ludicrous. “There should be no such thing as property, man, and I have a human right to do with your stuff whatever I want, man” goes up against “Whatever I create down to the single note and the single word is mine, Mine, MINE, in perpetuity and forever too, and anything even daring to stand shadowed by the exquisite originality of my fecund intellect should be banned” in the court of absurdity.

As Professor Boyle points out, the danger of this line of argument is that it is all about property, in that fabulous sense that only lawyers understand or care about. What is missing is a reasonable discussion about what is not property but rather something else entirely: the opposite of property, un-property, the unenclosed, the commons–the public domain.

The most salient problem of the public domain is that we lack a realistic idea of what it is. One of the major goals of the book is to give this nebulous idea a bit more of an operative definition. More importantly perhaps than mere definition, the author seeks to recognize the public domain as an ecosystem not unlike the environment. It took a peculiar confluence of things to create the environmental movement in the United States. In The Public Domain, Professor Boyle argues that a similar confluence has occured with intellectual property, and that what the public truly needs is a sort of “environmentalism of the commons.”

The first half of the book rigorously dissects contemporary ideas about the reach of intellectual property law. You can read all about the shocking attitude of the federal courts to intellectual property in the first four chapters. This is excellent stuff, but the real passion of the book comes in the last three chapters as the author turns his argument away from property to non-property. Moving from music sampling to science, then touching on the Creative Commons and the Free Software movement, he then turns to the most revealing section of the book in the penultimate chapter. Here, he notes how very little of the discussion about intellectual property, from either side of the fence, contains any actual evidence–in fact, both sides actively and passionately ignore it.

Professor Boyle is far from a copyright abolitionist. He reminds the reader over and over again of this. He is simply calling for a measured, reasonable approach to the law, based on actual evidence, rather than the rhetoric of the “evidence-free zone” that is currently the baliwick of intellectual property jaw flappers. In a time of near-total madness on the issue, even a twinge of reason is like manna from heaven.

Jack Valenti of the MPAA used to call his crusade against piracy his own personal “terrorist war.” (This is an example of just how ridiculous the rhetoric is: a world of 10-year-old terrorists.) Professor Boyle chooses another analogy: the range wars of the mid-1800s. At stake in the range wars was, largely, the issue of who should control certain resources necessary to run their vast ranges. But less obviously what was at stake then as now was the idea that there should be a balance of public and private interests.

Right now the public interest is losing, badly. It will continue to lose until the issue becomes clear to the public, as obvious to the 70-year-old as it is to the 12-year-old. This book is a pretty good step toward that clarity. As Professor Boyle eloquently pleads:

We need better evidence. We need property theories that give us as rich a conception of property’s outside—of the public domain and the commons—as we have of property itself. We need to rethink some of our policies of international harmonization and reconsider what types of policy actually benefit the developing world. We should explore ways of compensating artists that are very different from the ones we use now, and study the use of distributed creativity and open source in new areas of science and culture.

Difficulties aside, I have tried here to show that we need a cultural environmental movement, a politics that enables us first to see and then to preserve the public domain, to understand its contributions to our art, our technology, and our culture. Where is that movement now?

We all await that movement as we awaited environmentalism–or, perhaps, are still waiting for it. While The Public Domain likely will not have the effect of Rachel Carson’s Silent Spring, it offers a thoughtful and essential call to action. Only time will tell if anyone bothers to heed.

Download EPUB version here.

Download PDF version from the author’s site here.

Creative Commons License
Except where otherwise noted, the content on this site is licensed under a Creative Commons Attribution 4.0 International License.