Boyle 2003

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in the midst of a "second enclosure movement"

  • human genome: commons or not?; has been partially enclosed through patents
  • intellectual property
"The older strategy of intellectual property law was a "braided" one: Thread a thin layer of intellectual property rights around a commons of material from which future creators would draw. ... It may sound paradoxical, but in a very real sense protection of the commons was one of the fundamental goals of intellectual property law. In the new vision of intellectual property, however, property should be extended everywhere -- more is better." (39-40)

differences between land commons and intellectual commons:

  • commons of the mind are "non-rival" (41); over-use not a problem as it is, with, say, fisheries/land/etc.
    • "assumption that the strength of intellectual property rights must vary inversely with the cost of copying" (42)
"Whether or not it is impossible in theory, it is surely a difficult problem in practice. In other words, even if enclosure of the arable commons always produced gains (itself a subject of debate), enclosure of the information commons clearly has the potential to harm innovation as well as to support it. More property rights, even though they supposedly offer greater incentives, do not necessarily make for more and better production and innovation -- sometimes just the opposite is true. It may be that intellectual property rights slow down innovation, by putting multiple roadblocks, multiple necessary licenses, in the way of subsequent innovation." (43-4)
"The importance of open-source software is not that it introduces us to a wholly new idea; it is that it makes us see clearly a very old idea." (47)
"The public domain is the figure and copyright the ground. The various privileges and defenses are not exceptions, they are at the heart of copyright, correctly understood. Copyright is, in fact, a system designed to feed the public domain providing temporary and narrowly limited rights, themselves subject to considerable restrictions even during their existence -- all with the ultimate goal of promoting free access." (60)

in legal terms, open source software stands squarely on intellectual property; GPL License is a license outlining the conditions for use; is not in the public domain

  • " the free software movement

attempted to build a living ecology of open code, where the price for admission was your commitment to make your own incremental innovation part of the ecology" (65)

" The old dividing line in the literature on the public domain had been between the realm of property and the realm of the free. The new dividing line, drawn on the palimpsest of the old, is between the realm of individual control and the realm of distributed creation, management, and enterprise." (66)
"CFCs on the ozone layer. The idea that there is “an environment” allows a coalition to be built around a reframed conception of common interest. In the narrowest sense, that common interest might be the realization, spurred by greater attention to environmental interrelationships, that wetlands are important to both the duck hunter and the bird-watcher, and that they provide all kinds of ecosystem services. Naming encourages study." (72) -- do the same thing for public domain