The Public Domain Enclosing the Commons of the Mind by James

The Public Domain: Enclosing the Commons of the Mind Boyle, James Published: 2008 Categorie(s): Non-Fiction Source: http://yupnet.org/boyle/ 1 About Boyle: James Boyle is the William Neal Reynolds Professor of Law and co- founder of the Center for the Study of the Public Domain at Duke University School of Law in Durham, North Carolina. He was one of the founding board members of Creative Commons, and currently chairs the board. Boyle joined Duke University School of Law in July 2000. He has previously taught at the American University, Yale, Harvard, and the University of Pennsylvania Law School. He is the author of Shamans, Software and Spleens: Law and Construction of the Information Society as well as a novel published under a Creative Commons license, The Shakespeare Chronicles. In 2003, he won the World Technology Award for Law for his work on the intellectual ecology of the public domain, and on the "Second Enclosure Movement" that threatens it. Boyle also contributes a column to the Financial Times New Technology Policy For- um. Source: Wikipedia Copyright: Please read the legal notice included in this e-book and/or check the copyright status in your country. Note: This book is brought to you by Feedbooks http://www.feedbooks.com Strictly for personal use, do not use this file for commercial purposes. 2 Creative Commons License This work is licensed under a Creative Commons Attribution- Noncommercial-Share Alike 3.0 Unported License. 3 Preface Each person has a different breaking point. For one of my students it was United States Patent number 6,004,596 for a “Sealed Crustless Sand- wich.” In the curiously mangled form of English that patent law pro- duces, it was described this way: 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 there between. 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.1 “But why does this upset you?” I asked; “you’ve seen much worse than this.” And he had. There are patents on human genes, on auctions, on algorithms.2 The U.S. Olympic Committee has an expansive right akin to a trademark over the word “Olympic” and will not permit gay activ- ists to hold a “Gay Olympic Games.” The Supreme Court sees no First Amendment problem with this.3 Margaret Mitchell’s estate famously tried to use copyright to prevent Gone With the Wind from being told from a slave’s point of view.4 The copyright over the words you are now reading will not expire until seventy years after my death; the men die young in my family, but still you will allow me to hope that this might put it close to the year 2100. Congress periodically considers legislative proposals that would allow the ownership of facts.5 The Digital Millenni- um Copyright Act gives content providers a whole array of legally pro- tected digital fences to enclose their work.6 In some cases it effectively re- moves the privilege of fair use. Each day brings some new Internet hor- ror story about the excesses of intellectual property. Some of them are even true. The list goes on and on. (By the end of this book, I hope to have convinced you that this matters.) With all of this going on, this enclosure movement of the mind, this locking up of symbols and themes and facts and genes and ideas (and eventually people), why get excited 4 about the patenting of a peanut butter and jelly sandwich? “I just thought that there were limits,” he said; “some things should be sacred.” 1.U.S. Patent No. 6,004,596 (filed Dec. 21, 1999), available at http://patft.uspto.gov/ne- tahtml/PTO/srchnum.htm (search “6,004,596”). As is required, the patent refers ex- tensively to the “prior art”—in this case prior art in sealing sandwiches. It also refers to the classic scientific reference work “50 Great Sandwiches by Carole Handslip 81–84, 86, 95, 1994.” Is this patent ridiculous? Yes, clearly so. But not so ridiculous that its eventual owner, Smucker’s, refrained from sending out cease and desist let- ters to competing sandwich manufacturers, and, when one of those competitors suc- cessfully requested the Patent and Trademark Office to reexamine the patent, from appealing the resulting rejection all the way through the Board of Patent Appeals and Interferences to the Court of Appeals for the Federal Circuit. The judges there were less than sympathetic at oral argument. “Judge Arthur Gajarsa noted that his wife often squeezes together the sides of their child’s peanut butter and jelly sandwiches to keep the filling from oozing out. ‘I’m afraid she might be infringing on your patent!’ he said.” The court found that the PTO got it right the second time around and agreed with the Board of Patent Appeals in rejecting the patent. Portfolio Media, “Peanut Butter and Jelly Case Reaches Federal Circuit,” IPLaw360 (April 7, 2005), available at http://www.iplawbulletin.com. For the Board of Patent Appeals’s learned discussion of whether the patent was anticipated by such devices as the “Tartmaster,” complete with disputes over expert testimony on the subjects of cut- ting, crimping, and “leaking outwardly” and painstaking inquiries about what would seem obvious to a “person having ordinary skill in the art of sandwich making,” see http://des.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd031754 and http://des.uspto.gov/Foia/Reterive-Pdf?system=BPAI&flNm=fd031775. One could conclude from this case that the system works (eventually). Or one could ask who cares about silly patents like this—even if they are used in an attempt to under- mine competition? The larger point, however, is that an initial process of examina- tion that finds a crimped peanut butter and jelly sandwich is “novel and nonobvi- ous” is hardly going to do better when more complex technologies are at stake. I take that point up in Chapter 2 with reference to Thomas Jefferson’s discussion of patents and in Chapter 7 on synthetic biology. For a more general discussion of the flaws of the patent system see Adam B. Jaffe and Josh Lerner, Innovation and Its Discon- tents:How Our Broken Patent System Is Endangering Innovation, and Progress and What To Do About It (Princeton, N.J.: Princeton University Press, 2004). 2.These types of patents are discussed in Chapter 7. 3.San Francisco Arts & Athletics, Inc., et al. v. United States Olympic Committee, 483 U.S. 522 (1987). See also James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, Mass.: Harvard University Press, 1996), 145–148. 4.SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001). 5.See Samuel E. Trosow, “Sui Generis Database Legislation: A Critical Analysis,” Yale Journal of Law & Technology 7 (2005): 534–642; Miriam Bitton, “Trends in Pro- tection for Informational Works under Copyright Law during the 19th and 20th Cen- turies,” Michigan Telecommunications & Technology Law Review 13 (2006): 115–176. 5 This book is an attempt to tell the story of the battles over intellectual property, the range wars of the information age. I want to convince you that intellectual property is important, that it is something that any in- formed citizen needs to know a little about, in the same way that any in- formed citizen needs to know at least something about the environment, or civil rights, or the way the economy works. I will try my best to be fair, to explain the issues and give both sides of the argument. Still, you should know that this is more than mere description. In the pages that follow, I try to show that current intellectual property policy is over- whelmingly and tragically bad in ways that everyone, and not just law- yers 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 re- search. 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. Still, the message of this book is neither doom nor gloom. None of these decisions is irrevocable. The worst ones can still be avoided alto- gether, and there are powerful counterweights in both law and culture to the negative trends I describe here. There are lots of reasons for optim- ism. I will get to most of these later, but one bears mentioning now. Con- trary to what everyone has told you, the subject of intellectual property is both accessible and interesting; what people can understand, they can change—or pressure their legislators to change.

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