Week 3 – About “The Public Domain” by James Boyle.

It is hard for me to draw a perfect line between the thoughts of James Boyle (2008) in The Public Domain after having read Remix by Lawrence Lessig (2008). They both belong to a movement of scholars who is not against the intellectual copyright system itself (on the contrary) but demands a revision of the actual laws regulating them. Nevertheless, I will try to hone in on the three points I believe are differential in Boyle’s approach.

I would start by saying that Boyle makes a strong defense of his arguments based on the nature of copyright laws, their history, the concepts contained on them, and their purpose. He admits from the beginning the complexity of dealing with intellectual property rights (Preface, p.xiv.). As a consequence, many people consider them equivalent to those over physical property but Boyle insists on the opposite throughout his book: intellectual property is not the same as physical property because their nature is different (Chapter 1, p.7; Chapter 2, p.21; Chapter 5, p.85; Chapter 9, p.205; and Chapter 10, p.236.) Once this statement is clarified, he explains how the first time intellectual property rights were discussed in the 19th century; those who granted their existence also convened in the need to weigh their advantages and disadvantages to serve social “will and convenience”, given they are “state-created monopolies” (Chapter 2, p.23). Today, copyright industries and their lobbyists do not leave room for any criticism of the system even when the “founding fathers” did (Chapter 4, p.59). This is the first idea which, in my opinion, constitutes the core of his argument. From an economic point of view, it is clear for me that intellectual property shares the features of non-rival and/or non-excludable goods (Chapter 1, p.3), typical characteristics of public goods. Therefore, every single economist will agree that they cannot “behave” in markets like physical goods. I have not got the opportunity to review The Wealth of the Networks by Yochai Benkler (2006), but I am pretty sure I will have the chance to discuss further this point soon.

The next two ideas I will comment are derived from his core argument. One has to do with the implications for society of establishing control over intellectual property. The author is convinced that such control will bring along “control over the medium of transmission.” (Chapter 9, p.205), which I believe steps dangerously into fundamental liberties. Given the different nature of intellectual property, when the use of copyrighted material is forbidden, it also implies the process itself of creation (from that copyrighted material) is also prohibited. Here is where the copyright law turns its original goal “To promote the Progress of Science and useful Arts […]” (US Const., art. I, sec. 8, clause 8) into the opposite.

At this point, let me share a YouTube video creation by CGPGrey from 2011 which exemplifies this point with the copyrighted material of Walt Disney Co (see min. 03:15+):

And last, I find very inspiring Boyle’s proposal to revert this situation. He suggests creating a cultural environment movement to preserve the public domain (Chapter 10, p.247) based on the same schema of the environmental movement. As I mentioned, companies and lawmakers are very hostile to discuss any revision of the copyright laws, fearing they will lose money. We know the same happened when some people started talking about protecting the environment: the eyes were placed in the short-term, not in the long-term because markets do not internalize the negative effects of production in the environment. It is important to spread the word in a similar way, and explain how the different nature of intellectual property makes the copyright laws impact negatively on the development of the “commons of the mind.”

Each one of us is entitled to their own beliefs and ideas but we need to be aware that sometimes certain laws go further in their regulation of a certain matter: the regulation itself can have decisive consequences in our lives, transcending that mere matter. This week we have witnessed how another controversial law, the Cyber Intelligence Sharing and Protection Act (CISPA) has been passed in the US House of Representatives. And I believe it is controversial because, even when is designed to allow the US government to obtain private data from companies to investigate cyber-threats, I also see how it can make a pool of private data from both hackers and legal users. Some of the cultural environment movement has already protested, like The Electronic Frontier Foundation. And if you see the point Boyle made in his book, you may also find some wisdom in their words:

U.S. House of Representatives Shamefully Passes CISPA; Internet Freedom Advocates Prepare for a Battle in the Senate


Benkler, Y. (2006). The Wealth of Networks: How Social Production Transforms Markets and Freedom. New Haven & London: Yale University Press.

Boyle, J. (2008). The Public Domain. New Haven & London: Yale University Press.

CGPGrey (2011, August 23). Copyright: Forever Less One Day. [Video file]. Retrieved from: http://www.youtube.com/watch?v=tk862BbjWx4

Lessig, L (2008). Remix. New York: The Penguin Press.

Maas, D. & Jaycox, M. M. (2013, April 18). U.S. House of Representatives Shamefully Passes CISPA; Internet Freedom Advocates Prepare for a Battle in the Senate. The Electronic Frontier Foundation. Retrieved from: https://www.eff.org/deeplinks/2013/04/us-house-representatives-shamefully-passes-cispa-internet-freedom-advocates

Samuelson, P. A., & Nordhaus, W. D. (1985). Economics. New York: McGraw-Hill.

U.S. Constitution. Art. I, Sec. 8, Clause 8.



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2 responses to “Week 3 – About “The Public Domain” by James Boyle.

  1. Greetings! Very useful advice within this post!
    It is the little changes that make the most significant changes.
    Thanks a lot for sharing!

  2. Javier,

    You’re definitely right about it being tough to draw a straight line between Boyle and Lessig’s arguments, but I thought Boyle’s approach was a really nice follow up to Lessig’s. I also, like yourself, followed Boyle’s thinking that intellectual property laws just can’t be the same as physical property laws because the content is so different.

    Your comment, “And last, I find very inspiring Boyle’s proposal to revert this situation. He suggests creating a cultural environment movement to preserve the public domain (Chapter 10, p.247) based on the same schema of the environmental movement,” summed up my feelings about his connection to the environmental movement as well. Anyway that power can be shifted to the hands of many rather than the hands of few is a step in the right direction. There are so many situations in which humans think on the short term rather than the long term, and you’re right that this thinking can be dangerous. Getting people to stand up for their rights about copyright law is going to be imperative in developing a future environment that breeds creativity and positive thinking.

    Thanks for sharing the video and for mentioning to zoom to minute 3:15 (holy cow does the narrator of the video talk fast). I’d never heard that about Disney before and never really thought about them taking all of the stories for their classic kids’ movies and then pushing for laws to protect their loot. Makes me scowl to think about Walt Disney pulling a move like that (I guess this means I’ll have to watch The Little Mermaid one less time this year.

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