Saving the Intellectual Commons with Open Source


Regular readers of this blog will know that I am not a fan of the term “intellectual property”, and that I prefer the more technically correct term “intellectual monopolies”.

Despite that, I strongly recommend a new book from someone who not only approves of the term “intellectual property”, but of its fundamental ideas. I do so, however, because this avowed fan also has serious reservations:

In the pages that follow, I try to show that current intellectual property policy is overwhelmingly and tragically bad in ways that everyone, and not just lawyers or economists, should care about. We are making bad decisions that will have a negative effect on our culture, our kids’ schools, and our communications networks; on free speech, medicine, and scientific research.

We are wasting some of the promise of the Internet, running the risk of ruining an amazing system of scientific innovation, carving out an intellectual property exemption to the First Amendment. I do not write this as an enemy of intellectual property, a dot-communist ready to end all property rights; in fact, I am a fan. It is precisely because I am a fan that I am so alarmed about the direction we are taking.

The book has the deceptively limp title of The Public Domain, and the rather more exciting subtitle Enclosing the Commons of the Mind. The choice of the word “commons” - which also appears quite often in my posts – together with a recognition that “intellectual property” is indeed a time-limited monopoly granted by governments as part of a bargain that is supposed to encourage creativity, is one of the many indications that this is not your father's/mother's “IP” book.

That's not so surprising, since its author is James Boyle, whose 1996 book on the same subject area called Shamans, Software, & Spleens was a very early attempt to explore some of the complex legal issues raised by the emerging “information economy” for intellectual monopolies. But where that book was rather opaque, and clearly aimed at fellow academics,The Public Domain is effortlessly lucid and downright witty in places, making it perfect for those living and working outside the ivory tower.

Similarly, where Shamans, Software, & Spleens was a jumble of fascinating but perplexing tales of law colliding with technology, Boyle's latest book offers a coherent and illuminating history of intellectual monopolies in recent times. In particular, it offers the best explanations I have come across of the Napster and Grokster cases in the US that did so much to define the legal landscape for file sharing, and of the hugely-important Digital Millennium Copyright Act, later exported to Europe.

These early chapters provide the context in which Boyle discusses key developments in the online world, and how the ideas behind old-style “intellectual property” struggle to cope with them. There is a fascinating section on mash-ups, and how this new kind of creativity is threatened by the inappropriate rules that intellectual monopolies attempt to enforce, and another that writes glowingly about free software in terms that will be quite familiar to readers of this blog:

The creators of free and open source software were able to use the fact that software is copyrighted, and that the right attaches automatically upon creation and fixation, to set up new, distributed methods of innovation. For example, free and open source software under the General Public License—such as Linux—is a “commons” to which all are granted access. Anyone may use the software without any restrictions. They are guaranteed access to the human-readable “source code,” rather than just the inscrutable “machine code,” so that they can understand, tinker, and modify. Modifications can be distributed so long as the new creation is licensed under the open terms of the original. This creates a virtuous cycle: each addition builds on the commons and is returned to it.

I especially liked the following twist on the old “tragedy of the commons” idea - the over-use of a resource available to many, and something that digital commons like free software are immune to:

open source teaches us about the comedy of the commons, a way of arranging markets and production that we, with our experience rooted in physical property and its typical characteristics, at first find counterintuitive and bizarre.

Another virtue of the book is that Boyle is well acquainted with the European intellectual monopoly landscape, and writes extensively about it here; this makes his book more than usually germane for UK readers. For example, there is a comparison of the US and European approaches to copyrighting databases of factual information – not possible in the US, but allowed in the EU. This provides a perfect test case for the underlying theory of intellectual monopolies that granting more of them leads to more innovation and more creativity. The results are instructive:

One goal of the database right was to help close the gap between the size of the European and U.S. database markets. Even before the directive, most European countries already gave greater protection than the United States to compilations of fact. The directive raised the level still higher. The theory was that this would help build European market share. Of course, the opposite is also possible. Setting intellectual property rights too high can actually stunt innovation. In practice, as the Commission’s report observes, “the ratio of European / U.S. database production, which was nearly 1:2 in 1996, has become 1:3 in 2004.” Europe had started with higher protection and a smaller market. Then it raised its level of protection and lost even more ground.

Boyle also provides detailed commentary on the current attempts in Europe to extend the copyright term in sound recordings – in the face of overwhelming evidence that doing so makes no sense either logically or economically (as the Gowers Review also made clear), and useful facts on the inefficiency of keeping the Ordnance Survey's geographical data locked up instead of letting others build freely upon it.

One of the most interesting aspects of the book is the way that Boyle uses the metaphor of the commons – specifically, the one that intellectual monopolies are now enclosing – to make a plea for an “environmentalism for information” that will help preserve that commons just as environmentalism in the physical world seeks urgently to preserve the physical commons, the commons of water, the commons of the atmosphere etc. Another way of looking at this is to see the inarguable and growing success of the free software as a model for other intellectual commons – such as the commons of open content created by the Creative Commons licences, which were directly inspired by the GNU GPL.

It is this centrality of free software to Boyle's narrative and ideas that makes his book so relevant for readers of this column. The bad news is that you can't actually buy a copy in the UK yet; the really good news is that, true to his principles of expanding the intellectual commons, Boyle has released the entire book under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 Licence, making it freely available from the associated web site. So, do avail yourself of the author's generosity – and maybe reward him later by buying a few copies to hand around to friends as belated Christmas presents once the book comes out in the UK early next year.

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