The Public Domain

Liveblog notes on a book discussion seminar on The Public Domain, by James Boyle, led by Ray Corrigan. It’s another in the series of senior seminars on the implications of technology for the world that I’ve liveblogged before (last was on The Future Of The Internet).

The audience included notable OU blogger and genius John Naughton, Niall Sclater and a host of other clever technology-informed people from round the OU. Ace senior administrator Tony Walton  introduces things by self-deprecatingly observing that he spends half his time reading boring reports, and the other half writing them, so it’s nice to have a discussion like this.

The book covers ‘the second enclosure movement’, enclosing the ‘commons of the mind’. Ray says the book is the Silent Spring for the information society and should be compulsory reading for all OU senior management.

Book itself is available online for free at the website – in another example of the way in which things being given away for free actually increases the sales of a not-free thing.

Ray also highly recommends James Boyle’s first book – Shamans, Software and Spleens – less accessible but very informative.

Current IP policy is overwhelmingly bad, in ways that matter for everyone. Boyle says so as a fan of intellectual property, not an enemy.

Three primary aims of the book: first is to show that intellectual property policy and horrors matter: they become the default rules of the road. Second, that they are evolving badly. Third, to explore the ‘outside’ of property – the public domain, or commons.

Three trends

First is cultural agoraphobia – an aversion to openness. This picks up the thought experiment of how you’d build an excellent online encyclopedia, in 1991. You wouldn’t go for it being open, rather than with a bunch of carefully-shephered experts. Or of how to set up the global information network.

Second is intellectual property strengtht is the reciprocal of the ease of copying: as copying gets easier, so IP law gets tougher. The ultimate end is total control as copying cost drops to zero.

Third is that IP policy is largely ‘faith-based’, and free of consideration of evidence.

Result is huge opportunity costs, costs from lost sharing.

A monk’s manuscript is ‘rivalrous’ – if he has it, you haven’t got it. And it’s ‘excludable’ – he can keep it locked up in his abbey and you can’t see it. Other things – e.g. MP3 files – are non-rivalrous – I can take a copy of yours and you still have yours, and are hard to exclude people from.

Physical property is inherently rivalrous. Most intellectual property is inherently non-rivalrous. They shouldn’t, therefore, be treated the same unthinkingly.

The way IP law is developed – especially in US – is that content providers get together, thrash out a deal, and pass it to legislators to pass in to law. Jessica Litman’s Digital Copyright sets out this process.

Ray Corrigan’s book sets out a case of argument between two monks over a manuscript in the C6th – the closing arguments could’ve come out of the Eldred case in 2003.

Second enclosure movement

IP goods are non-rivalrous, so no over-grazing tragedy. One person’s outputs are another’s inputs. This movement is fencing off outputs, making barriers to future creativity, including things like gene patents and facts – greatly increasing the scope as well as the term of IP law.

85% of the material in the Library of Congress are orphan works – not available commercially, but the owner is not known. So can’t be used for fear of infringement liabilities – which can be and have been huge in real cases, especially in the US – and it’s a strict liability issue.

This results in ‘the C20th black hole’ – because copyright lasts for life of the author plus 50/70/95 years, these cultural resources are locked up and unavailable.

I got a mashup

Story told in the book of how Ray Charles’ I Got a Woman transmuted in to a viral video mashup critique of the response to Hurricane Katrina made by the Legendary K.O., based on Kanye West’s TV observation that ‘George Bush Doesn’t Like Black People’.  Elucidates a trail of works building, stealing and borrowing from each other back to Ray Charles and then back to Soul’s appropriation of Gospel music.

Basically, if current IP law obtained, none of these works would have happened. Possibly stopping Soul music from happening at all.

History of Intellectual Property

Everything you need to know is included in Jefferson’s letter and Macaulay’s speech in House of Commons. Sets out that intellectual property is not the same as physical property, that IP rights are a privilege introduced for the benefit of society not a fundamental right, monopolies are bad, extending rights terms for existing works can’t possibly increase the incentive to produce them, and so on.

History of IP activism is about anti-monopolistic concerns; Boyle argues for a positive compaign that’s pro public domain, or commons.

Jefferson warning, and Sony axiom – limitations are as important as IP rights. (e.g. fair use in US, fair dealing in UK.) Cheaper copying makes limitations more rather than less important. VCRs, Napster, Grokster, iPods, etc.

Now, under DMCA anti-circumvention procedures, breaking a technology designed to stop you copying something is illegal in itself, even if your copying is otherwise entirely legal.

The Farmer’s Tale

Digital fences. Imagine farmers and ranchers – farmers want to fence the land, ranchers want right to roam. Have public roads through the land, free but make the land valuable for everyone. Automobile comes along. Theives steal crops using cars driving away. Deal with it by fencing off the public roads. Ranchers don’t like it, so they cut the fences. Farmers say must protect the fences, and get Congress to pass law making fence-cutters illegal.

Metaphor for DMCA and EU Copyright Directive, and the tale of DeCSS, DVD Jon, and Universal v Corley (2600).

Enclosure of science and biology, and database rights – solid chapters.

Environmentalism for information

The public domain: an articulation of shared values and interests that allow those interests to come into being.  A movement – scholarship and activism – to understand and protect it. People didn’t understand what the environment was, but they do now (to some extent); need to do the same process now.

The movement is underway – e.g. Open Rights Group in UK, Electronic Frontier Foundation in US. Plus also, of course, all the Open Courseware / Open Educational Resources activity too – including the Open University.


Me: there’s a point in the book about framing being crucial to whether you win or lose (Grokster), very well made – it’s true for the whole IP debate. Is it ‘fair use is a bit of an exception to the general rule that rights holders own those rights’ or ‘those restrictions are only acceptable to grant in the first place if we include things like fair use as a balance, so removing fair use actually renders the whole IP system illegitimate’?

More fundamentally, if you frame all property rights – (even real and personal property rights) – as social constructions, then of course they can be tweaked and balanced to ensure the best good for the best number. But if they are ultimate moral truths – Seventh Commandment – then the law must uphold them regardless of the effect.

I reckon that the whole book is actually a strong argument that calling it ‘intellectual property’ is yielding the argument it from the start. Despite Boyle disagreeing.

Ray: Yes, agree, but Boyle argues that IP is the terms that are heavily used and widely (mis?)understood.

Gowers Review – unusual in that it commissioned an economic study for copyright extension. Generally no evidence-base in this field.

David Vincent: Continuities from history. Jefferson and Macaulay as the warnings, paths not followed. The C18th/C19th trades protected their interests as ‘Mysteries’ – competitive survival depends on it. Powerful C19th arugment that patents would promote the spread of knowledge. Lack of protection prevents people sharing their discoveries.  Enacted under a heading of greater openness. Copyright similarly. Lots of piracy of printed word in C19th. Dickens sued like mad and lost everywhere. Balance where you protected the book. Need to strike a similar balance. Contemporary point – those who wish to extend IP have the onus to demonstrate why it is in the public good. A lot of it is sewn-together anecdote about what works – partly because the timeframe is so short. It’s all since 1991. Both sides are short of evidence, and taking hold of extreme examples.

Ray: Yes, Boyle argues this in the context of e.g. database right. The hard thing to do is to strike the balance. Reasonable people can disagree about where to put the balance – by doing research.

Geeks are bad at engaging with this stuff politically – geek response is that ‘it can’t be like that, I deny this reality, not going to accept it’ – hence don’t engage, and it doesn’t get changed.

Niall: This political movement – is it there already, what attributes does it need?

Ray: Not yet, but organisations on it. E.g. Open Rights Group, EFF, Creative Commons. (me: and Open Source and Free Software)  And scholars informing the debate.

John: Framing issue is absolutely critical. Better understood by the established order – e.g. religious right frame discussion about abortion by framing it as murder; makes it hard to argue otherwise. Mass media – not a disinterested party – always frame this the way the rights industry want – that any copying is theft. John used to go on Today programme about this, but eventually refused. Most citizens who need to be engaged find this very abstruse. E.M.Forster reckoning that free speech is a concern only of those with plenty to eat. Chances of an environmental response therefore slim. In the end, the system will choke itself. He proposed an image of Gulliver – our economies – shackled to the ground by millions of silver threads woven by IP lawyers. Didn’t go down well with John Humphrys. The people who understand this best are in the computing industry, who know that it’ll kill the golden goose. He hopes it’ll get so bad that the really powerful industries will think again. Really annoyed that the multimedia industries – the ‘creative industries’ – are tiny by comparison to (say) the technology industry, but have disproportionate political clout and profile. We need more incidents like Amazon deleting bought copies of 1984 from people’s Kindles.

Ray: Google book scanning project key here; settlement with rights holders proposed, with lots of problems – but something like this will force a change. It’s still industry regulation, not public interest.

Josie: Irony of Disney being used. Very complex for ordinary folk to get their heads around. Step to one side and see the Disneyfication of children’s literature – Sleeping Beauty, Winne the Pooh – you’d never know their previous existence. Simplify out to that level needed. It’s hard to track who’s taken what from whom and how.

Niall: Translate this book into stories that people could understand.

Ray: Copyright and silence – John Cage 4’33”. Mike Batt music producer’s classical music CD, included a piece called one minute’s silence, on sleeve labels as composed by Batt/Cage. Cage’s estate contact Batt and ask for royalties – used 1/4 of the song, get 1/4 of the royalties. Five-figure out-of-court settlement. Despite difficulty of identifying which quarter he purloined.

Also Wind Done Gone case – Alice Randall’s book, retelling Gone With The Wind from one of the slave’s perspective. Author’s estate got an injunction against it. Took two years and armies of lawyers to clear up.

John: Nothing will happen until large and powerful industries get choked by it, or until the average citizen gets really irked by it. Filesharing is now so widespread, can’t see even the supine Governments of the West going along with a legal regime that criminalises every child in the country. (Ray: but they already have) It’s like Prohibition. In the end, have to decide whether laws that are likely to be widely flouted are worth it. Not there yet. But will think about it then.

Ray: The Three Strikes law here – ignoring the Gowers Review, the Digital Britain review – real risk now.

Direct relevance to the OU: the Blackboard patent. Blackboard got a patent in 2006 on delivering learning. Sued their main competitor, Canadian Desire2Learn. Heard in Texas. Blackboard won the case, lots of movement since then. Patent Office petitioned to review the patent, now looking at it again. Various things back and forth. Blackboard now have a new patent, issued in July – same as the old one, essentially. Desire2Learn have sued Blackboard to have patent overturned … in Maryland.

Josie: We contributed to the look for prior use that came via ALT. Now a backlash – Blackboard seen as villains, lots of people trying to move away from them.

Ray: Blackboard sued students who did a paper on Blackboard systems. Settlement included them promising never trying to understand Blackboard technology again.

John: Moral indignation, very warranted, but doesn’t work. Need to move beyond that. This is a problem of democratic change. We need to try something else. James Boyle is trying things – like a cartoon book. Satire. Educating legislators.

Ray: How this could change.  Catholic church in Ireland, Eamonn Casey Bishop of Galway. Articulate popular TV show comic, widely admired, discovered to have an illegitimate child. Suddenly all the bad things the Church had done came out, almost overnight the Church lost influence. ‘6m people’ effect – Gower review estimate of illegal filesharers. If enough people get affected, that will get notice. Or, finally, technology companies like Google getting their act together. Might not come out the way we like, though.

Tony: The economic arguments are key here. We need to explore them.

Ray: Yes, like economic arguments about externalities and environmentalism.

David: History of Freedom of Information is instructive. Only the rich middle class worried about this, no votes in this. That held it back for decades, but it did eventually go – by good pressure group activity, and European legislation. Also about application of Human Rights law. An area there we can appeal to. Tradition all the way back to the Enlightenment about openness, sustains the Human Rights approach.

Ray: Finally, don’t be too optimistic about Google’s position here – claiming that John Naughton’s A Brief History of the Future was published in 1905.

John: Similar to argument about relationship of individual and State regarding security.

Me: We’re in a better position here in the UK than the US. In US political debate around absolute rights framed in the Constitution. British political history, culture – and  constitution – much more open to pragmatic arguments.

Another observation by me (not made in the seminar):

There is widespread abuse of the law, largely through general ignorance (sometimes wilful). A few know but are contemptible; a handful are punctilious.  Generally most people just rip it off and don’t care and don’t have to, and merrily swap MP3s and watch and make mashups.

Only when large sums of money are at stake (usually on both sides) does the law get involved. This is good de minimis non curat lex stuff – the law doesn’t concern itself with trifles.  Except, of course, when small sums by vast numbers of people are concerned. Then you’re in trouble – the music industry at present and the film and TV industries presently. On the other hand, you can have vast numberss of small losses, and a small, concentrated number of huge gains – which is what the current situation is yielding.

Author: dougclow

Data scientist, tutxor, project leader, researcher, analyst, teacher, developer, educational technologist, online learning expert, and manager. I particularly enjoy rapidly appraising new-to-me contexts, and mediating between highly technical specialisms and others, from ordinary users to senior management. After 20 years at the OU as an academic, I am now a self-employed consultant, building on my skills and experience in working with people, technology, data science, and artificial intelligence, in a wide range of contexts and industries.

7 thoughts on “The Public Domain”

  1. Doug,
    Many thanks for making some sense out my incoherent ramblings yesterday. I’m afraid I wasn’t nearly as prepared as I should have been and didn’t do the book justice.
    Just one small point of accuracy. You mention that drm technologies are designed to stop copying. Actually they’re designed to control and stop access to digital content, not prevent copying. They don’t stop copying. The CD or DVD can still be copied digital locks and all; and if done carefully and with good enough technology the ‘pirated’ copy with its drm lock will still play on an approved consumer machine which contains the digital key.
    That’s the logical flaw at the heart of the drm approach – the ‘we’re just trying to keep honest people honest’ argument. Attempt to stop people copying and sharing by installing digital fences (which don’t prevent copying) and because these people also need to be able to listen to or view the digital content you have to hand them the keys too (built into their appropriately approved players e.g manufactured by tech. companies licenced by the movie industry’s ‘DVD Content Control Association’).

    1. Good point about restricting/controlling access, rather than copying.

      There are of course instances where DRM purveyors attempt to control copying directly (e.g. Blu-ray disks have a BD-ROM mark that is theoretically not copiable by ordinary players.)

      But yes, in general DRM serves to make life harder for genuinely honest users, and is at best (worst?) a speedbump for determined mass copiers.

  2. The copyright folks generated legislation to the effect that all works are automatically copyrighted. To identify a work as public domain, the Internet allows placement of a Creative Commons license. At some point, the world community will begin to look for that label, and reject those sites that do not have the label displayed. You might want to add such a label to your site. I’ll check back to see if you have it. Otherwise . . .

    1. Several points:

      Firstly, Creative Commons is not the same as public domain! Creative Commons provides a range of licenses that allow the rights owner to make their work available under the terms that suit them – see e.g. Creative Commons do also provide a tool to release works in to the public domain – see e.g. – but the essence of Creative Commons is ‘some rights reserved’. Public domain is pretty much ‘no rights reserved’.

      Secondly, although I’m an enthusiast for Creative Commons licences, I don’t see people rejecting sites without a CC licence any time soon, if the content is the stuff they want.

      Thirdly, this blog is already licensed under a Creative Commons licence – CC-BY, the least restrictive Creative Commons licence. That means anyone can do what they like with my blog content, so long as they attribute me as the author.

      There’s a notice to that effect in the top right-hand corner of the blog’s home page – let me know if you have a better suggestion for how to make this clear to all comers.

      – I already do have a, up in the top right-hand corner of the site.

      1. Thanks for your response. You’re right. If a work is placed in the public domain, it must be done explicitly, unlike our present situation with regard to copyright. The CC license options start with declaring a work in the public domain, and also offer reasonable choices for some form of copyright modifications.

        I subscribe to your rss feed. When I click on the link, I don’t see the home page. Some blog apps allow editing of the footer, which might let the cc license be displayed on each page at the bottom. Just a thought.

      2. Putting the CC notice in the bottom of each post, especially for the RSS feed, is a great idea, thanks!

        Unfortunately, there’s no easy way to add a footer to items in the RSS feed of a hosted blog like mine. (Or at least, if there is, I can’t find it, and neither can lots of people on the forums.) So I’ll have to rely on cut-and-pasting it myself, which is a bit tedious, and I’m bound to forget sometimes. But better than nothing.

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