Moving to Freedom, .Org

James Boyle: The Public Domain

'The Public Domain', by James Boyle

I was excited yesterday to hear about a new book, The Public Domain: Enclosing the Commons of the Mind. (Also mentioned in a Creative Commons blog post.)

I wasn’t familiar with James Boyle and his work, which is disturbing, because it seems like I should already have been a fan of such a free culture luminary. He has lots of good things to say on the topic. (I’ve since tried to remedy my negligence by adding him to my “Free Links.”)

The book is available for free online under the Creative Commons Attribution Noncommercial ShareAlike License. After downloading it and reading through part of the first chapter, I ordered the paper copy from Amazon.

I fully expect it to reinforce my beliefs and give me some good talking points about the value of free culture and the public domain. I think it will also challenge me to think about the subject in a more rounded and nuanced way. And I hope also that it successfully influences people outside of the choir. You can see for yourself! Check out the book’s website. (Where you will find an interesting article about the book’s cover and the contest that produced it.)

One thing I liked in the first chapter was his discussion of the term “intellectual property.” Whenever I see this, my RMS radar beeps as I think about Richard Stallman’s rejection of the term and his insistence that copyright, patents, and trademarks be considered as separate items. While I admire Richard’s rigor in discussing things clearly, I don’t agree that the label has no value. So I liked this thoughtful passage as a counter:

Some readers will find my use of the term “intellectual property”? mistaken and offensive. They will argue, and I agree, that the use of the term “property”? can cause people mistakenly to conflate these rights with those to physical property. (I outline that process and its negative consequences in the next chapter.) They will argue, and again I agree, that there are big differences between the three fields I have described. Should we not just list the specific rights about which we are speaking—copyright, patent, or trademark? Both of these concerns are real and well-founded, but I respectfully disagree with the conclusion that we should give up the term “intellectual property.”?

First, as I have tried to show above, while there are considerable differences between the three fields I discussed, there is also a core similarity—the attempt to use a legally created privilege to solve a potential “public goods problem.”? That similarity can enlighten as well as confuse. Yes, copyright looks very different from patent, just as a whale looks very different from a mouse. But we do not condemn the scientist who notes that they are both “mammals”?—a socially constructed category—so long as he has a reason for focusing on that commonality. Second, the language of intellectual property exists. It has political reality in the world. Sometimes the language confuses and misleads. There are two possible reactions to such a reality. One can reject it and insist on a different and “purified”? nomenclature, or one can attempt to point out the misperceptions and confusions using the very language in which they are embedded. I do not reject the first tactic. It can be useful. Here, though, I have embraced the second.

—James Boyle, The Public Domain, Chapter 1