Book Review – "The Public Domain: Enclosing the Commons of the Mind"

Posted in The Gnovis Blog

If you’re familiar with the work of Lawrence Lessig, you’ll recognize the formula James Boyle follows in his latest book, "The Public Domain: Enclosing the Commons of the Mind". It goes something like this:

First, frame intellectual property law as a balance between rewarding innovators (and innovation) while still allowing society to benefit from public informational goods. Next, observe (correctly) that the IP regime has consistently moved in the direction of enclosure, at the public’s expense, through a combination of legislated extensions of copyright terms and aggressive litigation. Then, in any order, mention Napster, the Tragedy of the Commons, Linux, and Guttenburg’s printing press, and don’t forget to quote Richard Stallman ("’Free’ as in ‘free speech . . not free as in ‘free beer’"). In your vague conclusion, express both fear and optimism and mention the Founding Fathers.

The Public DomainGiven the trajectory of my own research, I should probably be a little less harsh, lest I find myself utilitizing the same formula in my own writing, but I do find this script a bit tiring. "The Public Domain," published in October and available online under a Creative Commons license, brings some interesting new case studies to the table, but does not offer much novelty in its argument, which basically boils down to the same core as Lessig’s work: too much IP enclosure stifles innovation, copyleft strategies are part of a solution, but we need to restore balance at the policy level as well.

Despite these deficiencies, Boyle’s book is light and accessible, and makes for a quick, enjoyable read. The unexpected gem is Chapter 6: I Got a Mashup, in which he explores the roots of the song “George Bush Doesn’t Care About Black People”, in which Legendary K.O. samples Kanye West’s "Golddigger", which famously featured Jamie Foxx impersonating Ray Charles. Foxx-as-Charles sings modified lyrics to Charles’ "I Got a Woman", which was itself a rewording of "I’ve Got a Savior" by the Harold Bailey Gospel Singers and which, like many early hymnals, comes from complex, untraceable roots. Boyle’s traversal of this complex creative remixing highlights not only the absurdity of excessive copyright protections, but also the many challenges of regulating creativity under any copyright structure. "This is the kind of stuff copyright is supposed to regulate even when it is working well. And yet, listening to the sequence, it is hard to deny that at each stage something artistic and innovative, something remarkable, has been created" (p.154).

While I haven’t yet read Lessig’s latest book, Remix, I find it unlikely that he could tell a more compelling remix story than the one this masterful chapter from Boyle.

Boyle stands out from Lessig in two other ways. First, by describing certain uses of copyright as a monopoly, he touches an emotive nerve that makes his argument more popularly compelling:

"One central goal of copyright is to limit the monopoly given to the copyright owner so that he or she cannot force citizens to pay for every single type of use. The design of the law itself is supposed to facilitate that. When ‘getting something for free comes to equal ‘commercial’ in the analysis of fair use, things are dangerously out of balance" (p.76).

Second, in similarly compelling fashion, Boyle does a noteworthy job of moving his argument beyond the sometimes esoteric realm of copyright. "Why on earth should we care?" Boyle asks of the open source movement (p.191), before providing his own answer:

"The importance of open source software is not that it introduces us to a wholly new idea. It is that it makes us see clearly a very old idea . . . other examples of commons-based, nonproprietary production were all around us" (p. 193).

In the end, I think there are two sorts of readers who would benefit from this book: those who are new to the topic and want a good, readable primer, and those, like me, who are obsessed with the topic and insist on reading everything. If you’re somewhere in the middle — you have a passing interest and have read Lessig, but aren’t too obsessed with the nuances — then you might want to pass on this one. Or skip to Chapter 6.