37278_u00.qxd 8/28/08 11:04 AM Page i


Text Box
The author of this book has made it available under a Creative Commons License. This digital file may be freely copied, shared, printed or otherwise reproduced for non commercial purposes. The book can also be downloaded from http://thepublicdomain.org. To purchase a print copy of the book on Amazon.com, please click inside this box (a browser window will open) or visit the publisher’s website at www.yupress.com


-1 ___

0 ___

1 ___

Thomas Jefferson to Isaac McPherson, August 13, 1813, p. 6.

37278_u00.qxd 8/28/08 11:04 AM Page ii



James Boyle

The Public Domain Enclosing the Commons of the Mind

Yale University Press

New Haven & London



___ 1

37278_u00.qxd 8/28/08 11:04 AM Page iii



A Caravan book. For more information, visit www.caravanbooks.org.

Copyright © 2008 by James Boyle. All rights reserved.

The author has made an online version of this work available under a Creative

Commons Attribution-Noncommercial-Share Alike 3.0 License. It can be accessed

through the author’s website at http://james-boyle.com.

Printed in the United States of America.

ISBN: 978-0-300-13740-8

Library of Congress Control Number: 2008932282

A catalogue record for this book is available from the British Library.

This paper meets the requirements of ANSI/NISO Z39.48–1992 (Permanence of

Paper). It contains 30 percent postconsumer waste (PCW) and is certified by the

Forest Stewardship Council (FSC)

-1 ___

0 ___

1 ___

37278_u00.qxd 8/28/08 11:04 AM Page iv






___ 1

Acknowledgments, vii

Preface: Comprised of at Least Jelly?, xi

1 Why Intellectual Property?, 1

2 Thomas Jefferson Writes a Letter, 17

3 The Second Enclosure Movement, 42

4 The Internet Threat, 54

5 The Farmers’ Tale: An Allegory, 83

6 I Got a Mashup, 122

7 The Enclosure of Science and Technology: Two Case Studies, 160

8 A Creative Commons, 179

9 An Evidence-Free Zone, 205

10 An Environmentalism for Information, 230

Notes and Further Readings, 249

Index, 297 v

37278_u00.qxd 8/28/08 11:04 AM Page v



-1 ___

0 ___

1 ___

37278_u00.qxd 8/28/08 11:04 AM Page vi






___ 1

The ideas for this book come from the theoretical and practical work I

have been doing for the last ten years. None of that work has been done

alone. As a result, the list of people to whom I am indebted makes

Oscar night acknowledgments look haiku-terse by comparison. Here

I can mention only a few. I beg pardon for the inevitable omissions.

First and foremost, my family has tolerated my eccentricities and

fixations and moderated them with gentle and deserved mockery.

“Want that insignia torn off your car, Dad? Then it would be in the

public domain, right?”

My colleagues at Duke are one of the main influences on my work.

I am lucky enough to work in the only “Center for the Study of the

Public Domain” in the academic world. I owe the biggest debt of grat-

itude to my colleague Jennifer Jenkins, who directs the Center and

who has influenced every chapter in this book. David Lange brought

me to Duke. His work on the public domain has always been an inspi-

ration to mine. Arti Rai’s remarkable theoretical and empirical studies

have helped me to understand everything from software patents to

synthetic biology. Jerry Reichman has supplied energy, insight, and a


37278_u00.qxd 8/28/08 11:04 AM Page vii



spirited and cosmopolitan focus on the multiple ways in which property can be

protected. Jed Purdy and Neil Siegel commented on drafts and provided crucial

insights on the construction of my argument. Catherine Fisk, Jim Salzman,

Stuart Benjamin, Jonathan Wiener, Mitu Gulati, Jeff Powell, Chris Schroeder,

and many, many others helped out—sometimes without knowing it, but often

at the cost of the scarcest of all resources: time. Amidst a brilliant group of re-

search assistants, Jordi Weinstock and David Silverstein stood out. Jordi showed

a dogged ability to track down obscure 1950s songs that was almost scary. Addi-

tional thanks go to Jennifer Ma, Tolu Adewale, Paulina Orchard, and Emily

Sauter. Balfour Smith, the coordinator of our Center, shepherded the manu-

script through its many drafts with skill and erudition.

Duke is the most interdisciplinary university I have ever encountered and

so the obligations flow beyond the law school. Professor Anthony Kelley, a

brilliant composer, not only educated me in composition and the history of

musical borrowing but co-taught a class on musical borrowing that dramati-

cally influenced Chapter 6. Colleagues in the business school—particularly

Jim Anton, a great economic modeler and greater volleyball partner, and Wes

Cohen, a leading empiricist—all left their marks. Dr. Robert Cook-Deegan,

leader of Duke’s Center for Public Genomics, and my wife Lauren Dame, as-

sociate director of the Genome Ethics, Law and Policy Center, provided cru-

cial support to my work with the sciences in general and synthetic biology in

particular. I was also inspired and informed by colleagues and students in

computer science, English, history, and political science.

But the work I am describing here is—as the last chapter suggests—

something that goes far beyond the boundaries of one institution. A large

group of intellectual property scholars have influenced my ideas. Most impor-

tantly, Larry Lessig and Yochai Benkler have each given far more than they

received from me in the “sharing economy” of scholarship. If the ideas I de-

scribe here have a future, it is because of the astounding leadership Larry has

provided and the insights into “the wealth of networks” that Yochai brings.

Jessica Litman, Pam Samuelson, Michael Carroll, Julie Cohen, Peggy Radin,

Carol Rose, Rebecca Eisenberg, Mark Lemley, Terry Fisher, Justin Hughes,

Neil Netanel, Wendy Gordon, David Nimmer, Tyler Ochoa, Tim Wu, and

many others have all taught me things I needed to know. Jessica in particular

caught and corrected (some of ) my many errors, while Pam encouraged me to

think about the definition of the public domain in ways that have been vital

to this book. Michael suggested valuable edits—though I did not always lis-

ten. Historical work by Carla Hesse, Martha Woodmansee, and Mark Rose


-1 ___

0 ___

1 ___

37278_u00.qxd 8/28/08 11:04 AM Page viii



has been central to my analysis, which also could not have existed but for

work on the governance of the commons by Elinor Ostrom, Charlotte Hess,

and Carol Rose. Kembrew McLeod and Siva Vaidhyanathan inspired my

work on music and sampling. Peter Jaszi was named in my last book as the

person who most influenced it. That influence remains.

Beyond the academy, my main debt is to the board members and staff of

Creative Commons, Science Commons, and ccLearn. Creative Commons, on

whose board I am proud to have served, is the brainchild of Larry Lessig and

Hal Abelson; Science Commons and ccLearn are divisions of Creative Com-

mons that I helped to set up which concentrate on the sciences and on educa-

tion, respectively. The practical experience of building a “creative commons”

with private tools—of allowing creative collaboration with people you have

never met—has shaped this book far beyond the chapter devoted to it. Hal

Abelson, Michael Carroll, and Eric Saltzman were on the midwife team for

the birth of those organizations and became close friends in the process. Since

the entire Creative Commons staff has made it routine to do seven impossi-

ble things before breakfast, it is hard to single out any one individual—but

without Glenn Brown at Creative Commons and John Wilbanks at Science

Commons, neither organization would exist today. Jimmy Wales, founder of

Wikipedia and another Creative Commons board member, also provided key

insights. Finally, but for the leadership of Laurie Racine neither Creative

Commons nor our Center at Duke would be where they are today, and thus

many of the experiments I describe in this book would not have happened.

The intellectual property bar is a fascinating, brilliant, and engagingly ec-

centric group of lawyers. I owe debts to many of its members. Whitney Brous-

sard told me the dirty secrets of the music industry. Daphne Keller—a former

student and later a colleague—helped in more ways than I can count.

A number of scientists and computer scientists made me see things I other-

wise would not have—Drew Endy and Randy Rettberg in synthetic biol- ogy, Nobel laureates Sir John Sulston and Harold Varmus in genomics and

biology more generally, Paul Ginsparg in astrophysics, and Harlan Onsrud in

geospatial data. Paul Uhlir’s work at the National Academy of Sciences intro-

duced me to many of these issues. The work of Richard Stallman, the creator

of the free software movement, remains an inspiration even though he pro-

foundly disagrees with my nomenclature here—and with much else besides.

Activists, civil rights lawyers, bloggers, and librarians have actually done

much of the hard work of building the movement I describe at the end of this

book. Jamie Love has touched, sparked, or masterminded almost every benign

Acknowledgments ix



___ 1

37278_u00.qxd 8/28/08 11:04 AM Page ix



development I write about here, and novelist Cory Doctorow has either

blogged it or influenced it. I have worked particularly closely with Manon

Ress, Fred von Lohmann, Cindy Cohn, Jason Schultz, and Gigi Sohn. John

Howkins and Gilberto Gil have provided considerable leadership internation-

ally. But there are many, many others. The entire community of librarians de-

serves our thanks for standing up for free public access to knowledge for over

two hundred years. Librarians are my heroes. They should be yours, too.

Some of the work contained here has been published in other forms else-

where. Portions of Chapters 2 and 3 appeared as “The Second Enclosure

Movement and the Construction of the Public Domain”;1 Chapter 7 shares

little textually but much in terms of inspiration with an article I co-wrote for

PLoS Biology with Arti Rai, “Synthetic Biology: Caught between Property Rights, the Public Domain, and the Commons.”2 For several years now I have

been a columnist for the Financial Times’s “New Economy Policy Forum.” Portions of Chapter 5 and Chapter 9 had their origins in columns written for

that forum. Chapter 10 has its roots both in my article “A Politics of Intellec-

tual Property: Environmentalism for the Net?”3 and in the symposium, Cul- tural Environmentalism @ 10,4 that Larry Lessig kindly organized for the tenth anniversary of that article.

Finally, I need to thank the institutions who have supported this study. The

Rockefeller Center in Bellagio provided an inspiring beginning. The Ford,

Rockefeller, MacArthur, and Hewlett Foundations have generously supported

my work, as have Duke Law School’s research grants and Bost Fellowships.

My work on synthetic biology and the human genome was supported in part

by a CEER grant from the National Human Genome Research Institute an

Order your essay today and save 10% with the discount code ESSAYHELP