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Tuesday, February 10, 2009

Review: The Public Domain

Just finished on a long flight: James Boyle's: The Public Domain, Enclosing the Commons of the Mind. Available for buying, reading or downloading online free. This was also an interesting test for me. I downloaded the free version, read a dozen pages, then became weary of that and bought the book. At least for me, if the book is interesting, they can make a sale.

Welcome to the intellectual property wars. The book is mostly about copyright and patent law and the recent changes to these laws, and how they change innovation. It is written in a popular mode and includes many examples and models to consider. Still you have to have some interest in the topic. He starts with some quotes from Jefferson and Macaulay to set the stage for a definition of property rights. The obvious distinction is property that is exclusively own-able by someone, or property that can be readily copyable by many people. Note especially his 'Farmers Tale' chapter, an allegory that helps you understand his points.

The Web has created the formerly unimaginable ability to instantly copy text, songs, videos and then re-purpose and share the results at no cost. Yet it clearly reduces some of the for-pay market. People are willing to do this for no direct payment. He makes the case that if we had known where the Web was going, starting less than twenty years ago, it would never have been legally allowed. Is the Internet one complex network that evolved to commit copyright crimes on a massive scale? It could be defined as such under current laws and shut down.

I admit I have always been of the opinion that copyright should be a 'natural right'. My invention is mine because I created it, not because the Patent office is allowing it. Yet the US constitution takes a more utilitarian approach. The laws are designed to give exclusive use for a time, then promote further innovation by making them public. Yet copyright law now gives exclusivity for the author's life plus seventy years. For their heirs? Does that make sense? Does that promote innovation?

The case is often made that copyright/patent laws exist so that an inventor will get enough reward to want to innovate at all. Yet today there are many cases where writers write for their own pleasure, or for secondary effects. Like this blog. Like the Wikipedia. Like social networks that trade links and expertise. This would also been hard to predict a dozen years ago. Massive numbers of people will create for little more than a bit of notoriety, and often not even that.

Also covered are the much misunderstood area of 'fair use', apparently now redefined so that it is little understood by anyone. I often copy quotes from books and other posts in this blog, is that covered under fair use? According to Boyle there is no clear answer except that which might be determined in court.

He also covers mash-ups and re-purposing, where he believes that these efforts are prime examples of integrating pieces of knowledge to create value for society. Here he gave a number of recording industry examples I was less familiar with.

He also gave an example that was irksome to me ... I won't repeat the details, but a mash-up was created to make a political point by taking a number of copyrighted sources and combining them. In some cases promoting a direct lie. He tried to soften it by saying 'whether you agree with the resulting statement or not' ... yet he repeated the title of the pastiche many times. Was this an argument for strengthening the libel laws? It weakens his argument: truth or lie, right or wrong, it is all OK. I, and I think many others were irritated by the casualness of the example.

Beyond that, this book was well done. The philosophical start of the book may scare some, but it leads you to a better understanding of all the issues involved. I came to agree with his overall more utilitarian, invention-friendly approach, and that the laws have swung too far and have started to encroach on the ability to create. I was involved in recent intellectual property work, and the misuse of the laws today are obvious. In an Internet world, are there enough lawyers to control innovation? What is the cost of squelching creativity?

The book's site and author details.

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