The Public Domain: Enclosing the Commons of the Mind Hardcover – Dec 9 2008
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About the Author
James Boyle is William Neal Reynolds Professor of Law, Duke University School of Law. He lives in Chapel Hill, NC.
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The book maps perfectly the history of these debates. But best in my view is the way it capture the current salience as it relates to the current version of digital technologies. His understanding of the "mash-up" problem, and the potential for a new digital literacy is better than anything else out there just now. And as the current Chairman of Creative Commons, his understanding of free, voluntary alternatives to the current mess is better than (just about) anyone.
There are of course a million critical problems that America faces. But the issues that Boyle is writing about are high among the list of those critical problems. Special interests have radically distorted the best in America's tradition. And if you track Boyle's views from the beginning of these battles to today, you will see that he has from the beginning understood what the world now is just beginning to recognize. He is, in my view, America's foremost scholar and teacher in this field. This book is an enormous contribution (but just a small token of what he's done).
Buy it for yourself and 10 of your best friends. Send a couple to the RIAA and MPAA.
I would have bet on the experts. James Boyle, Duke University law professor and author of The Public Domain, would have, too. The last time he consulted a print encyclopedia was 1998. You? The internet, of course, changed everything. But: "In the middle of the most successful and exciting experiment in nonproprietary, distributed creativity in the history of our species, our policy makers can see only the threat from `piracy.'"
Take an MP3. Boyle argues that it is fundamentally different than physical property, like a car. My use of an MP3 does not interfere with yours. We can both listen to it. No property is lost if it is copied or shared. It is not like stealing your car. You have an MP3, and I have an MP3. No one has "lost" anything. Except the content provider's (an insidious term if ever there was one) opportunity for profit. BMG and Sony, naturally, equate file-sharing with theft. They argue that file-sharing means no creators are compensated, meaning there is no incentive to create. No one creates for free, they say. A one-word retort: Wikipedia.
The recording companies use copyright law to protect their ability to profit in a specific, proprietary way. But as Boyle points out, the very purpose of copyright law is not to protect creators, and still less distributors, but to insure that the public receives the benefit of new creativity through the incentives of a free market. Hence, the public domain: work enters the public domain after a reasonable period so anyone can build on it. But not to hear BMG or Hollywood tell it. They're busy putting up digital barbed wire across the free range of the internet to "protect" their content. This despite their own history of flawed predictions. VCRs were once declared the death knell for Hollywood. Attempts were made to smother home video technology in its cradle.
And yet today Hollywood thrives off movie rentals
Boyle argues the same holds true with the internet. Fortunately for us, the technology simply evolved too fast. Had policy makers and content providers been given the opportunity, they would surely have killed the internet as we know it. Remember AOL, circa 1995? That's where the content providers were comfortable. They are doing their best not to drop the ball again. Boyle marshals a series of powerful arguments ranging from Thomas Jefferson to Ray Charles to Google to show why they must be stopped. We began to lock up our culture "at the very moment in history when the Internet made it a particularly stupid idea to do so", and the tide must be reversed.
Boyle ends The Public Domain with a call for "cultural environmentalism" to protect and expand the public domain. I like all that the idea conjures up, but I was left a little unclear as to how it could happen. Boyle treads over highly analytical and technical issues with a light touch, but not light enough. Carefully endnoted evidence abounds, emotive talk is eschewed in favor of provisional conclusions based upon empirical evidence. Fair enough, but that approach isn't likely to start any grassroots fires. The broad-based popular movement Boyle envisions requires a Silent Spring moment. Most readers will find this fine book a touch wonkish to tug their heartstrings.
Appropriately, the "internet range wars" extend to this very book. I downloaded it free <a href="[...]">here</a> as a PDF file. As my Kindle does not support PDF, Amazon will convert it to their proprietary .azw file. (Every Kindle owner has free access to this very useful - if totally unnecessary - service.) The formatting is somewhat ragged although still eminently readable. The Kindle's notetaking and highlighting functions are a touch cumbersome and involve waiting for a lot of screens and windows and some awkward keying on tiny buttons. True enough, your notes, highlights and bookmarks are saved - but only as long as you keep it on the one Kindle. At this point, I'm not sure whether this represents much of an advancement over margin notes, a highlighter, and scribbles in a notebook.
But it could. If there were a standard ebook format, then I could download The Public Domain and read it on my Kindle or any other ebook reader. My notes and highlights and bookmarks would follow, rather than being locked up, and I wouldn't have to worry I'd lose either the book or my notes when I upgraded. I'd possess multiple copies which I could easily forward on to others, asking for their input. In other words, an advancement over a print book.
As it stands I can't share a Kindle book, or a Kindle-ized book like The Public Domain. (Ironic, isn't it, that this free book about free culture is now locked up on a proprietary device?) Turns out I don't actually own my Kindle books. Evidently Amazon does. I just own the ability to view it. Basically I've given Amazon $400 for a book cover with a lock on it.
It doesn't have to be this way, of course. Amazon could make the Kindle DRM-free and take a bold leap into the future, rather than these timid baby steps. The Kindle could be the open future of reading. If not, maybe some other device will. Maybe we'll get lucky and Jeff Bezos will read The Public Domain and see the light.
This book also provides everything you will ever need to know about intellectual property, with out going into unnecessary details. It covers philosophy of IP, the historical development (both in common-law world and in the continent), visions and warnings of Jefferson and Macaulay. It also captures the world before and after Sony-Betamax and encapsulates the mind-set of entertainment industry and their dislike of new business practices. I particularly like Boyle's discussion about why a pro-consumer decision like the Sony case is so important as a rare "counter-example" of technological threat argument and why Grockster and Napster failed to reach the same result: it's all about politics of the cartel dinosaurs; no one is really fighting for the consumer. It's simply logical and thus hard not to believe in what he wants to say.
Information here is just abundant. It will probably not be an easy read for non-copyright lawyers, but it is perfect for everyone who wants to think intelligently about the state of affairs regarding copyrights' implications on todays' culture. Read it as many times as you must!