"Fencing Off Ideas: Enclosure and the Disappearance of the Public Domain"

James Boyle

The law locks up the man or woman

Who steals the goose from off the common

But leaves the greater villain loose

Who steals the common from off the goose.

The law demands that we atone

When we take things we do not own

But leaves the lords and ladies fine

Who take things that are yours and mine.

The poor and wretched don't escape

If they conspire the law to break;

This must be so but they endure

Those who conspire to make the law.

The law locks up the man or woman

Who steals the goose from off the common

And geese will still a common lack

Till they go and steal it back.

This poem is one of the pithiest condemnations of the English enclosure

movement, the process of fencing off

common land and turning it into private

property. (Although we refer to it as 'the

enclosure movement', it was actually a

series of enclosures that started in the

fifteenth century and went on, with differing means, ends, and varieties of state

involvement, until the nineteenth.) The

poem manages in a few lines to criticize

double standards, expose the artificial

and controversial nature of property

rights, and take a slap at the legitimacy

of state power. And it does it all with

humor, without jargon, and in rhyming


Sir Thomas More went further, though

he used sheep rather than geese to make

his point. He argued that enclosure was

not merely unjust in itself, but harmful

in its consequences. It was a curse of economic inequality, crime, and social dislocation.

Your sheep that were wont to be so meek

and tame, and so small eaters, now, as I

hear say, be become so great devourers

and so wild, that they eat up, and swaIlow

down the very men themselves. They consume, destroy, and devour whole fields,

houses, and cities. For look in what parts

of the realm doth grow the finest and

therefore dearest wool, there noblemen

and gentlemen.. . leave no ground for

tillage, they enclose all into pastures; they

throw down houses ; they pluck down

towns, and leave nothing standing, but

onIy the church to be made a sheep-house.

. . .Therefore that one covetous and insatiable cormorant and very plague of his

native country may compass about and

enclose many thousand acres of ground

together within one pale or hedge, the

husbandmen be thrust out of their own.

The enclosure movement continues to

draw our attention. It offers irresistible

ironies about the two-edged sword of

?respect for property? and lessons about

the role of the state in making controversial, policy-laden decisions to define

property rights in ways that subsequently come to seem both natural and neutral.

Following in the footsteps of Thomas

More, critics have long argued that the

enclosure movement imposed devastating costs on one segment of society.

Some of these costs were brutally and

relentlessly ?material? - for example, the

conversion of crofters and freeholders

into peons, seasonal wage-laborers, or

simply, as More argued in Utopia, beggars and thieves. But other harms were

harder to classify: the loss of a form of

life, and the relentless power of market

logic to migrate to new areas, disrupting

traditional social relationships, views of

the self, and even the relationship of

human beings to the environment.

A great many economic historians

have begged to differ. As they see the

matter, the critics of enclosure have fallen prey to the worst kind of sentimentality, romanticizing a form of life that was

neither comfortable nor noble, and certainly not very egalitarian.

From an economist?s point of view, the

key fact about the enclosure movement

is that it worked: this new property

regime allowed an unparalleled expansion of productive possibilities. By transferring inefficiently managed common

land into the hands of a single owner,

enclosure averted one aptly named

?tragedy? of the commons : overuse. It

also created incentives for large-scale

investment, allowed control over

exploitation, and in general ensured that

the resource would be used efficiently.

Unless the feudal lord knew that the

fruits of his labor would be his alone, he

would not have invested in drainage

schemes, the purchase of sheep, or the

rotation of crops in order to increase the

yield of his acreage.

Strong private-property rights helped

to avoid the tragedies of both overuse

and underinvestment. As a result of the

enclosure movement, fewer Englishmen

starved: more grain was grown, and

more sheep were raised. If the price of

this social gain was a greater concentration of economic power in fewer hands

and despoliation of the environment, so

be it. Those who weep about the terrible

effects of private property should realize

that it literally saved lives. Or so say the

economic historians.

This is a debate of more than antiquarian interest, for we are in the midst of a

new kind of enclosure movement, this

one aimed at exploiting a new and intangible kind of commons - call it a ?com-

mons of the mind.?(1) Once again, things

that were formerly thought to be uncommodifiable, essentially common, or

outside the market altogether are being

turned into private possessions under a

new kind of property regime. But this

time the property in question is intangible, existing in databases, business

methods, and gene sequences.

Take the human genome as an example. The opponents of ?enclosure? have

claimed that the genome ?belongs to

everyone, ? that it is literally ?the common heritage of humankind.? They say

that the code of life ought not and perhaps in some sense cannot be owned by

an individual or a corporation. When

patents have been granted for stem cells

and gene sequences, critics have mused

darkly about the way in which the state

is simply handing over monopoly power

to private parties, potentially thwarting

future research and innovation. The new

monopolists have names like Geron,

Celera, and Human Genome Sciences,

and their holdings are in the form of

patent portfolios rather than oil wells or

steel plants.

Alongside these reports about the

beneficiaries of the new property scheme

run news stories about those who were

not so fortunate, the commoners of the

genetic enclosure. Law students across

America now read Moore v. Regents, a

California Supreme Court case deciding

that poor Mr. Moore had no property

right to a cell line derived from his

spleen. In this case, the court decided

that giving property rights to ?sources?

would make it more difficult for scientists to share cell lines with fellow researchers - reading the decision, one can

almost picture the Styrofoam coolers

criss-crossing the country by Federal

Express in an orgy of altruistic flesh

swapping. Yet this fear of the pernicidus

effects of property rights did not last for

long. In another portion of the opinion

the court speaks approvingly of the

patent granted to the doctors whose

inventive genius created a billion-dollar

cell line from Mr. Moore?s ?naturally

occurring raw material.? Like the commoners, Mr. Moore finds that his naturalistic and traditional property claims

are portrayed as impediments to innovation. Like the beneficiaries of enclosure,

the doctors are granted a property right

to encourage efficient development of a

wasted resource.

Of course, like the fist enclosure

movement, this new one has its defenders. To the question ?should there be

patents over human genes?? the answer

will be ?private property saves lives.?

Only by extending the reach of property

rights can the state guarantee the investment of time, ingenuity, and capital necessary to produce new drugs and gene

therapies. Private-property rights are a

necessary incentive to research; economists need only worry about how to allocate these rights most efficiently. Or so

say the advocates of private-property


The genome is not the only area to

have been partially ?enclosed? in the

past decade. In recent years, intellectual

property rights have been dramatically

expanded in many different fields of

human endeavor - from business-method patents to the Digital Millennium Copyright Act, from trademark

antidilution rulings to the European

Database Protection Directive.

In 1918, the American jurist Louis

Brandeis confidently claimed that ?[ t]he

general rule of law is, that the noblest of

human productions -knowledge, truths

ascertained, conceptions, and ideas -

become, after voluntary communication

to others, free as the air to common

use.? At the time that Brandeis made

that remark, intellectual property rights

were the exception rather than the rule;

it was widely agreed that ideas and facts

must always remain in the public domain. But that old consensus is now

under attack. Long-standing limits on

the reach of intellectual property - the

antierosion walls around the public

domain - are being eaten away each year.

The annual process of updating my

syllabus for a basic intellectual property

course provides a nice snapshot of what

is going on. I can wax nostalgic looking

back to a five-year-old text, with its confident list of the subject matter that

intellectual property rights couldn?t

cover, the privileges that circumscribed

the rights that did exist, the length of

time before a work fell into the public

domain. In each case, the old limits have

recently been changed or challenged.

Patents are increasingly stretched out

to cover ?ideas? that twenty years ago all

scholars would have agreed were unpatentable : the so-called business method patents, which cover such ?inventions? as auctions or accounting methods, are an obvious example. Most troubling of all are the attempts to introduce

intellectual property rights over mere

compilations of facts. If Anglo-American

intellectual property law had an article

of faith, it was that unoriginal compilations of facts would remain in the public

domain. This was ?no mere accident of a

statutory scheme,? as the Supreme

Court once put it: protecting the raw

material of science and speech is as

important to the next generation of

innovation as the intellectual property

rights themselves. The system would

offer a limited monopoly for an invention or an original expression of ideas,

but the monopoly was to be tightly confined to the layer of invention or expression. The facts below, or the ideas above,

would remain free for all to build upon.

Even the stuff that could be protected by

intellectual property - the drug or the

poem, say - was supposed to pass into

the public domain after a certain number of years. As Jefferson and Macaulay

both observed, intellectual property

rights were necessary evils. They should

be strictly limited in both time and


Today, these traditional assumptions

about intellectual property law are under

attack. Some of the challenges are subtle. In patent law, stretched interpretations of novelty and nonobviousness

allow intellectual property rights to

move closer and closer to the underlying

datalayer; gene sequence patents come

very close to being rights over a particular discovered arrangement of data - C?s,

G?s, A?s, and T?s. Other challenges are

overt; the European Database Directive

does (and the various proposed database

bills in the United States would) create

proprietary rights over compilations of

facts, often without even the carefully

framed exceptions of the copyright

scheme, such as the usefully protean category of ?fair use.?

The older strategy of intellectual property law was a ?braided? one : thread a

thin layer of intellectual property rights

around a commons of material from

which future creators would draw. Even

that thin layer of intellectual property

rights was limited so as to allow access

to the material when the private-property owner might charge too much, or just

refuse; fair use allows for parody, commentary, and criticism, and also for

?decompilation? of computer programs

so that Microsoft Word?s competitors

can reverse-engineer its features in order

to make sure that their program can convert Word files. (Those who prefer topographical metaphors might imagine a

quilted pattern of public and private

land, with legal rules specifying that certain areas - beaches,say - can never be

privately owned, and accompanying

rules giving public right of way through

private land if there is a danger that

access to the commons might otherwise

be blocked.)

From the inception of intellectual

property law in the eighteenth century

until quite recently, protection of the

public domain - the intangible com-

mons -was one fundamental goal of the

law in most nations. In the new vision of

intellectual property, however, property

rights should be established everywhere:

more is better. Expanding patentable

and copyrightable subject matter,

lengthening the copyright term, giving

legal protection to ?digital barbed wire,?

even if it is used in part to prevent fair

use : each of these can be understood as a

vote of no confidence in the productive

powers of the commons. We seem to be

shifting from Brandeis?s assumption

that the ?noblest of human productions

are free as the air to common use? to the

assumption that any human production

left open to free use is inefficient, if not


So far I have argued that there are profound similarities between the first

enclosure movement and our contemporary expansion of intellectual property.

Today, as in the fifteenth century, proponents and opponents of enclosure are

locked in battle, hurling at each other

incommensurable claims about innovation, efficiency, traditional values, the

boundaries of the market, the saving of

lives, the loss of familiar liberties. Once

again, opposition to enclosure is portrayed as economically illiterate: the

beneficiaries of enclosure tell us that an

expansion of property rights is needed in

order to fuel progress. Indeed, the

post-Cold War ?Washington Consensus? is invoked to claim that the lesson

of history itself is that the only way one

gets growth and efficiency is through

markets: property rights, surely, are the

sine qua non of markets.

But if there are similarities between

the two enclosure movements, there are

also crucial differences. The digitized

and networked ?commons of the mind,?

circa 2002, differs greatly from the

grassy and isolated common plots of

land that dotted England circa 1400.(2)

Some of the key differences should lead

us to question whether stronger intellectual property rights are really either necessary or desirable.

For example, consider the well-known

fact that a digital text, unlike a plot of

land, can be used by countless people

simultaneously without mutual interference or destruction of the shared

resource. Unlike an earthly commons,

the commons of the mind is generally

what economists call ?nonrival.? Many

uses of land are mutually exclusive. If I

am using the field for grazing, it may

interfere with your plans to use it for

growing crops. By contrast, a gene

sequence, an MP3 file, or an image may

be used by multiple parties: my use does

not interfere with yours. To simplify a

complicated analysis, this means that

the depredations through overuse that

affect fields and fisheries are generally

not a problem with intellectual property.

(The exceptions to this statement turn

out to be fascinating; in the interest of

brevity I will ignore them entirely.)

Thus, one cause of tragedy on the

earthly commons generally does not

arise on the commons of the mind.

Overuse is normally not a problem. But

what about incentives to create the intellectual resources in the first place?

Here intellectual property, especially

in our digitized age, seems at first glance

to pose a unique problem. It has long

been relatively easy for pirates to produce unauthorized copies of poems,

novels, treatises, and musical compositions. In the language of the economists,

it has long been difficult, and in some

cases virtually impossible, to stop one

unit of an intellectual good from satisfying an infinite number of users at zero

marginal cost. A familiar conclusion

seems irresistible: without an ability to

protect their creations against theft, creators will be unable to earn an adequate

living. There wilI be inadequate incentives to create. Thus the law must step in

and create a monopoly called an intellectual property right.

This is the standard argument in favor

of intellectual property rights, but it has

recently acquired a historical dimension,

a teleology of expansion over time. After

all, in our digitized age, it is easier than

ever before for pirates to copy not just a

book, but a film, a photograph, a recorded piece of music, a drug formula, a

computer program - the list goes on.

Surely the historical lowering of copying

and transmission costs implies a corresponding need to increase the strength of

intellectual property rights.

Imagine a line. At one end sits a monk,

painstakingly transcribing Aristotle?s

Poetics. In the middle lies the Gutenberg

printing press. Three-quarters of the

way along the line is a photocopying

machine. At the end lies the Internet. At

each stage, copying costs are lowered:

Aristotle?s text becomes ever more freely

and widely accessible; indeed, the complete text is currently available in both

Greek and English to anyone with access

to the Internet (at ).

Among some analysts, the assumption

seems to be that the strength of intellectual property rights must correspond

inversely to the cost of copying. The

argument goes something like this: To

deal with the monk-copyist, we need no

intellectual property right; physical con-

trol of the manuscript is enough. To deal

with the Gutenberg press, we need the

Statute of Anne. But to deal with the

Internet, we need the Digital Millennium Copyright Act, the No Electronic

Theft Act. the Sonny Bono Copyright

Term Extension Act, perhaps even

the Collections of Information Anti-

Piracy Act. Why? As copying costs

approach zero, inteIlectual property

rights must approach perfect control.

And if a greater proportion of product

value and GNP is now in the form of

information, then obviously we have an

independent reason to need strengthened protection. A five dollar padlock

would do for a garden shed not for a


Like any attractive but misleading

argument, this one has some truth. The

Internet does lower the cost of copying

and facilitates illicit copying. The same

technology also lowers the costs of prodction, distribution. and advertising -

and dramatically increases the size of

the potential market.

Is the ?net? result, then, a loss to

rights-holders such that we need to increase protection in order to maintain a

constant level of incentives? The answer

is not self-evident.

A large, leaky market may actually

produce more revenue than a small,

tightly controlled market. What?s more,

the same technologies that allow for

cheap copying also allow for swift and

encyclopedic search engines - the best

detection device for illicit copying ever

invented. It would be impossible to say,

on the basis of the evidence we have,

that owners of protected content are

better or worse off as a result of the


My intuition - as well as our historical

experience with prior ?dangerous? tech-

nologies such as the VCR - points

strongly to the possibility that copyright

holders are better off. In any case, there

simply isn?t enough evidence, either to

support my intuition or to support the

conclusion that as copy costs decline

intellectual property rights must be

strengthened. Furthermore, given the

known static and dynamic costs of

monopolies, and the constitutional

injunction to encourage the progress of

science and useful arts, the burden

should be on those requesting expanded

intellectual property rights to prove

their value.

Another argument commonly offered

in defense of granting new intellectual

property rights stresses the increasing

importance of products that use,

embody, or process information in

today?s global economy. Perhaps the

commons of the mind requires enclo-

sure because it is now such a vital sector

of economic activity. The importance of

agriculture to the economy was certainly

one of the arguments for the first enclosure movement. (Lovers of Patrick

O?Brian?s novels may remember Maturin?s stolid silence in the face of an

admiral?s increasingly vehement insistence that enclosure was essential to

produce the corn necessary to fight the

Napoleonic war.)

Here we come to another big differ-

ence between the commons of the mind

and the earthly commons. As has frequently been pointed out (by Jessica

Litman, Pamela Samuelson, and Richard

A. Posner, among others), information

products are frequently made out of

fragments of other information products; one person?s information output is

someone else?s information input. These

inputs may be snippets of code, discov-

eries, prior research, images, genres of

work, cultural references, databases of

single nucleotide polymorphisms - all

can function as raw material for future

innovation. And every potential increase

of protection over such products also

raises the costs of, or reduces access to,

the raw material to create new products.

The right balance is difficult to strike.

One Nobel Prize-winning economist has

claimed that it is actually impossible to

produce an ?informationally efficient?

market. (3) Whether or not it is impossible

in theory, it is surely a difficult problem

in practice. In other words, even if enclosure of the arable commons always

produced gains (itself a subject of

debate), enclosure of the information

commons clearly has some potential to

halsn intellectual innovation. More

property rights, even though they supposedly offer greater incentives, do not

necessarily ensure greater intellectual

productivity. Sometimes just the oppo-

site may be true.(4)

My arguments so far have taken as a

given the various problems to which

modern intellectual property laws have

been a response. I have discussed the

extent to which the logic of enclosure

works for the commons of the mind as

well as it did for the arable commons,

taking into account the effects of an information society and a global Internet.

Remember that when I speak of enclo-

sure, I am talking about increases in the

level of rights: protecting new subject

matter for longer periods of time, crimi-

nalizing certain technologies, making it

illegal to cut through digital fences even

if they have the effect of foreclosing previously lawful uses, and so on.

What I have not yet done is ask

whether the brute fact of the Internet

actually unsettles old assumptions and

forces us to reconsider the need for in-

centives - at least in certain areas. But

this is a question that cannot be evaded.

For anyone interested in the way that

computer networks may embody a new

mode of collaborative production, an

exemplary case to study is the open-

source software movement.(5) This software is released under a series of licens-

es, the most important being the Gen-

eral Public License, or GPL. The GPL

specifies that anyone may copy the soft-

ware, provided the license remains

attached and the ?source code? for the

software always remains available.(6)

Users may add to or modify the code,

may build on it and incorporate it into

their own work, but if they do so then

the new program created is also covered

by the GPL. Some people refer to this as

the ?viral? nature of the license; others

find the term offensive. The point, however, is that the open quality of the creative enterprise spreads; it is not simply

a donation of a program or a work to the

public domain, but a continual accretion

in which all gain the benefits of the program on pain of agreeing to give their

own additions and innovations back to

the communal project.

The open-source software movement

has produced software that either rivals

or exceeds the productive capacities of

conventional proprietary software. Its

adoption on the enterprise level is

impressive, as are the various technical

encomia to its strengths.

But the most remarkable acpect of the

open-source software movement is

harder to see. It functions as a new kind

of social system: many of those who

contribute to the movement by writing a

part of the software do so as volunteers,

without direct remuneration. Here, it

seems, we have a classic public good -

code that can be copied freely, and sold

or redistributed without paying the cre-

ator or creators.

Skeptics, of course, wonder if this

mode of production can be sustained.

There seem to be inadequate incentives

to ensure continued productivity and

innovation. Epure si muove, as Galileo is

reputed to have said in the face of Car-

dinal Bellarmine?s certainties - ?And yet

it moves.?

Still, there is no consensus about why

the system works. Perhaps the open-

source software movement is actually a

contemporary form of potlatch, in

which one gains prestige by the extravagance of the resources one ?wastes.?

Perhaps it is simply a smart way for a

young programmer to build a resume

that will eventually pay off in a conventional job. Or perhaps the movement is

driven by what Karl Marx considered an

innate aspect of our ?species-being?:

namely, the urge to create, which drives

human beings to labor out of love rather

than material need.

Like Yochai Benkler and Eben Mog-

len, I believe that such speculation is

interesting but irrelevant.(7) My own

explanation for why the system works is

this :

Assume a random distribution of

incentive structures in different people,

a global network. Assume also that the

costs of transmission, information sharing, and copying approach zero. Assume

finally a modular creation process. With

these assumptions, it just doesn?t matter

why unpaid code writers do what they

do; what matters is that a certain number of people will do what the unpaid

code writers do. One may do it for love

of the species, another in the hope of a

better job, a third for the joy of solving

puzzles, and so on. Each person also has

his or her own ?reserve price,? the point

at which he or she says ?now I will turn

off Survivor and go and create something.? But on a global network, there

are a lot of people, and with numbers

that big, and infomration-overhead that

small, even relatively hard projects will

attract a sufficient number of motivated

and skilled people to sustain the creative

process. For the whole structure to work

without large-scale centralized coordi-

nation, the creation process has to be

modular, with ?units? of different size

and complexity, each requiring slightly

different expertise, all of which can be

added together to make a grand whole. I can work on the sendmail program, you

on the search algorithms. More likely,

property lots of people try to solve the sendmail

and search algorithm problems, and

their products are judged by the commu-

nity and the best ones adopted. Under

these conditions - an ad hoc mode of

production that curiously combines

anarchism and entrepreneurialism,

Kropotkin and Adam Smith-we will get

innovation and productivity, without

having to rely on the proprietary model.

What?s more (and this is a truly fascinating twist), when the production pro-

cess does need more centralized coordination, some governance that guides

how the modular bits are most productively associated, it is at least theoretical-

ly possible that we can come up with the

control system ilt exactly the same way ;

distributed production is potentialIy

recursive. Governance processes, too,

can be assembled through distributed

methods on a global network, by people

with widely varying motivations, skills,

and reserve prices.

Again, skeptics will have their doubts.

One organization theorist I know dismisses the possibility of anarchic coordi-

nation as ?governance by food fight.?

Anyone who has ever been on an organizational listserv, or been part of a global

production process run by people who

are long on brains and short on social

skills, knows how accurate that description is. E pur si muove.

But, in the language of computer programmers, does the open-source software movement ?scale?? Can we generalize anything from this limited exam-

ple? How many types of production,

innovation, and research fit into the

model I have just described? After all,

for lots of types of innovation and invention one needs hardware, capital invest-

ment, large-scale real-world data collection, stuff - in all its facticity and infinite

recalcitrance. Maybe the open-source

model has solved the individual incentives problem, but that?s not the only i

problem. And how many types of innovation or cultural production are as

modular as software?

My own guess is that this method of

production is far more common than we

realize. ?Even before the Internet,? as

some of my students have taken to saying portentously, science, law, education,

and musical genres all developed in ways

that are markedly similar to the model I

have described. ?The marketplace of

ideas,? the continuous roiling development in thought and norm that our

political culture spawns, is itself an idea

that owes much more to the distributed,

nonproprietary model than it does to the

special case of cornmodified innovation

that we regulate through intellectual

property law. It?s not that copyright and

patent haven?t helped polver the rise of

modern civilization ; it?s just that it

would be wrong to see them as the only

engine of innovation. Indeed, the mot-

toes of free software development have

their counterparts in the theory of

democracy and the open society. The

open-source movement describes its

advantage over closed and secretive systems concisely: ?given enough eyeballs,

all bugs are shallow. ? Karl Popper would

have cheered.

Furthermore, I suspect that the in-

creasing migration of the sciences to-

ward data-rich, processing-rich models

will make it likely that a greater amount

of innovation and discovery could follow the distributed. nonproprietary

model of intellectual production. Bio-informatics and computational biology,

the open-source genomic project at

www.ensembl.org. the possibility of distributed data scrutiny by volunteers

that NASA used on the Mars landing

data- all of these offer intriguing

glances of a possible future. And finally,

of course, the Internet is one big experi-

ment in distributed cultural production.

My own utopia would include modes

of nonproprietary intellectual production flourishing alongside a scaled-down

but still powerful intellectual property

regime. Of course, my utopia hinges on

a hunch about the future. Still, there is

some possibility (I might say hope) that

we could have a world in which much

more intellectual production is free -

?free? meaning that it is not subject to

centralized control, and ?free? meaning

that its products are available without

payment. Insofar as this is at least a possi-

ble future, then surely we should think

twice before foreclosing it.

Yet foreclosing this possibility is precisely what lawmakers and government

regulators in America are now doing.

The point about the dramatic recent

expansion of intellectual property

rights -in database protection bills and

directives that extend intellectual property rights to the layer of facts, in the

efflorescence of software patents, in the

validation of shrink-wrap licenses that

bind third parties, in the Digital Millen-

nium Copyright Act?s anticircumvention provisions - is not merely that they

hamper the nonproprietary mode of

intellectual production unfairly and

without justification. The point is rather

that they run the risk of ruling it out


We have come full circle. As I have

shown, we are in many ways in the

midst of a second enclosure movement.

The opponents and proponents of

enclosure are currently locked in battle,

each appealing to conflicting and sometimes incommensurable claims about

efficiency, innovation, justice, and the

limits of the market.

But should there be a second enclosure

movement? Do we know that property

rights in this sphere will yield the same

surge of productive energy that they did

when applied to arable land?

I think the answer is a resounding No.

We are rushing to fence in ever-larger

stretches of the commons of the mind

without convincing economic evidence

that enclosure will help either productivity or innovation - and with very

good reason to believe it may actually

hurt them.(9)

As I have argued elsewhere, this

process should bother people across the

ideological spectrum, from civil libertarians to free marketeers. Researchers and

scientists should be particularly worried

by what is happening. Up to now, the

American system of science, for all its

flaws, has worked astoundingly well:

changing some of its fundamental premises, such as by moving property rights

into the data layer, is not something to

be done lightly.

The dangers are particularly acute at

the moment for three reasons. First,

under the conditions that currently

obtain in our digitized commons of the

mind, the creation of new intellectual

property rights tends, in a vicious circle,

to create still further demands for new?

intellectual property rights. The argument is a little too complicated to lay out here (10).

By James Boyle