Review: James Boyle's 'The Public Domain'

– Posted February 17, 2016 the refsmmat report · a blog at

James Boyle is a law professor specializing in copyright law, and The Public Domain is some of the most readable legal writing I’ve seen in a long time. (He gets bonus points for making the ePub and PDF freely available on his website.) Boyle covers the recent expansion of copyright law to protect more works for longer terms, depriving our culture of the benefit of their free use. He starts by covering the foundational arguments of copyright law: just what is “intellectual property,” and what sorts of rights do authors have in their works?

Boyle is a fan of Thomas Jefferson’s thoughts on the subject. Jefferson argued that there is no inherent property right in intellectual works: once you read my book or hear my speech, you have an irrevocable mental copy, and your possession of the work does not prevent anyone else’s. Unlike physical property, many people can have the work simultaneously. Copyright is instead a limited grant of a monopoly by the government, with the intent of promoting artists and authors; because monopolies were axiomatically considered Bad Things at the time, the monopoly must be as limited as possible to carry out its purpose.

This stands in contrast to the common European (and, most often, French) views of copyright, usually phrased in terms of “author’s rights” instead. In this system, authors have an inherent perpetual right to works they produce—works that are the embodiment of their unique genius, works they poured tremendous creative energy into, works which others could only spoil with their tampering. The distinction is better explored in Peter Baldwin’s Copyright Wars, though just about everything else is done better by Boyle; Baldwin’s work, though exhaustive, was not nearly as fluid and readable, and showed symptoms of Academic Sentence Convolution Syndrome.1

Boyle reframes the argument in favor of limited copyright terms in terms of government subsidies. Using government power to protect the revenues of the tiny fraction of works which still draw revenue several decades after publication has a cost: it renders the vast majority of unprofitable and abandoned works completely unavailable to anyone. We ban ourselves from the majority of culture to subsidize a few percent of published works.2

I find this argument convincing. Project Gutenberg shows that old culture can be digitized and reused for all sorts of interesting purposes, Wikipedia just how valuable free culture can be, the entire Internet what can happen when information can be shared freely and easily. Why not make the war correspondence and novels of the 1940s available to all? Why let the literature of the 1950s slowly rot away in libraries when it can be read and enjoyed again?3

Boyle also discusses the “Internet Threat”: that computers and the Internet will make copying and redistribution so easy that new rights must be granted to copyright holders to prevent serious loss of business. Digital Rights Management falls in this category: companies must be granted a right not only to monopolize distribution of their work but to prevent reuse, under fair use or not, of work already sold to a paying customer. Media companies describe DRM-breaking tools as burglary tools, while advocates point out that they’re breaking into works they already own. Boyle says the DMCA’s prohibitions on DRM-breaking are a new, and constitutionally unfounded, right granted to media companies: there is no similar scheme whereby I can put a mark on a book to say “you may not copy this, even under fair use”, so why should breaking DRM be any different?

(As an aside, Boyle’s comments on DeCSS and movie piracy are amusing. He quotes from the decision in Universal City Studios, Inc. v. Reimerdes, a 2000 court case against DeCSS, a description of the process of movie piracy: half an hour decrypting the DVD, 10 to 20 hours synchronizing the compressed audio and video, and six hours to transfer it to someone else over IRC. Compared to “renting the same movie at Blockbuster for $3”, Boyle thinks, this is no threat. Blockbuster’s shareholders would beg to differ, as would The Pirate Bay.)

Similarly, some companies tried to use copyright law in lieu of patent or trademark law, preventing competitors from making garage door remotes compatible with their openers or music stores compatible with their iPods. The courts looked down on this; while it may count as circumvention, there certainly was no intent to redistribute copyrighted works or otherwise violate the rights of the rightsholders.

Circumvention is followed with a discussion of copyright in music, where nearly every work is a derivative work: borrowing melodies, arrangements, styles, and even portions of recordings is an entirely normal part of the creative process. But I’m not very interested in the music world (to my detriment, perhaps), so I skipped past much of this discussion.

Next, Boyle covers open-source software and the Creative Commons movement, which has somehow produced high-quality works without any profit incentive whatsoever, and uses copyright law to enforce inclusivity (through copyleft), rather than to exclude uses. The existence of open-source software and free culture suggests a flaw in the usual arguments for intellectual property: quite a lot of intellectual property needs no profit motive to be created. People write code because they want to, not because they expect payment. People write entire books because they enjoy the process or because they believe the message is important (as I did). As a result, Boyle argues that proposed intellectual property legislation should consider not just its impact on commercial ventures but on open-source and free-culture works, because they are just as important a source of innovation; advance commercial interests at the cost of open-source software and you will damage a number of businesses unintentionally.4

Patents also apply to software, though the book was written before Alice Corp v. CLS Bank demolished the idea that the phrase “by means of a computer” turns unpatentable abstract ideas into patentable inventions. Some of the discussion is hence out of date. Software patents are still a legal minefield, though, and one (from my admittedly biased perspective) worth exploring in more depth.

The final chapters explore evidence-based intellectual property policy, like evaluations of Europe’s odd database rights scheme, and how policy is often based on the bald assertion that “more rights terms benefit authors” without any analysis of costs, incentives, or economics. (Retroactive term extensions are particularly inexcusable in economic terms, since the authors were clearly willing to produce the works without them.) As a statistician I’m particularly annoyed by database rights; most databases I encounter were created or funded by government agencies and hence by my tax dollars, and my current research project involves combining an assortment of databases to answer questions the original compilers would never have thought of.5 Database rights would make my work much more difficult, blocking important research, and bring very little benefit to the compilers of the databases.

Overall I was happy with The Public Domain, and I wish more people involved in intellectual property policy (politicians, scientists and publishers involved in the big open access debates, authors) would read it. Perhaps it doesn’t go into incredible academic depth on every issue, but it is likely a better book for it. To put it another way: I finished the book wanting to learn more, showing not that it was too short but that it was interesting and engaging enough to leave me wanting more.

  1. Fred Rodell famously complained that lawyers are incapable of saying anything directly or forcefully. Criticizing a judicial decision, a lawyer might write “It would seem that a contrary conclusion might perhaps have been better justified.” Baldwin is guilty of this kind of writing; Boyle simply writes “If this [decision] were a law school exam, it would get a ‘D’. (Maybe a C given grade inflation.)”

  2. Mark Twain argued that this was exactly why copyright terms should be long: you benefit the children of those few authors, and harm nobody else. But making culture unavailable is a harm, and a state subsidy for the children of successful authors should be recognized for what it is: a state subsidy for the children of successful people. Hardly popular in today’s political climate.

  3. I once heard a vaguely plausible counter-argument: free access to 20th-century literature and art would mean new work has to compete with free older work. Publishers currently can put books out of print after a few years, removing them from competition, but if a vast back-catalog of out-of-copyright works suddenly appeared, would people still read new books? Watch new movies? Well, yes, probably; the marketing power of the publishers is considerable. But would you deny us the benefit of learning from our history to subsidize new work?

  4. It’s interesting to see that there’s a modern backlash against copyleft in the open source community: many modern projects choose licenses like the BSD and MIT licenses, which have no copyleft terms and are compatible with reuse in proprietary software. Developers now regard adoption of their code by closed-source for-profit software a good thing rather than a detriment to user freedom. Copyleft licenses like the GPL are seen as only restricting the potential uses of your software. I’m not sure how this shift happened—perhaps the wide success of open source software makes people believe copyleft terms are not necessary to ensure its continued existence?

  5. A lot of statisticians can say this.