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Duke University School of Law

A Politics of Intellectual Property: Environmentalism for the Net?

Author(s): James Boyle
Source: Duke Law Journal, Vol. 47, No. 1 (Oct., 1997), pp. 87-116
Published by: Duke University School of Law
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This Essay argues that we need a politics, or perhaps a po-

litical economy, of intellectualproperty. Using the controversy
over copyrighton the Internetas a case study and the history of
the environmentalmovementas a comparison,it offers a couple
of modestproposals about whatsuch a politics mightlook like-
what theoreticalideas it might draw upon, and what constituen-
cies it might unite.

Everyone says that we are moving to an informationage. Eve-
ryone says that the ownership and control of information is one of
the most importantforms of power in contemporarysociety. These
ideas are so well-accepted,such clich6s, that I can get away with say-
ing them in a law review without footnote support. (For those
blessedly unfamiliarwith law reviews,this is a status given to only the
most staggeringlyobvious claims;the theory of evolution1and the or-
bit of the earth aroundthe sun2probablywould not qualify.)

t Copyright ? 1997 by James Boyle. This Essay draws on ideas first developed in my
FORMATION SOCIETY(1996). Those who study intellectual property will realize how extensive
a debt this Essay owes to David Lange's classic piece, Recognizing the Public Domain, LAW &
CONTEMP.PROBS.,Autumn 1981, at 147. Thanks are also due to Keith Aoki, John Perry Bar-
low, Robert Gordon, Peter Jaszi, Jessica Litman, and Bruce Sterling, and to the Yale and Co-
lumbia Legal Theory Workshop Series.
LIFE (The Heritage Press 1963) (1859). But cf. Genesis 1:1-29.
2. See generally NICOLAUSCOPERNICUS, ON THEREVOLUTIONS (Jerzy Dobrzycki ed. &
Edward Rosen trans., The Johns Hopkins Univ. Press 1978) (1543). But cf CLAUDIUS
Hutchins ed. & R. Catesby Taliaferro trans., Encyclopaedia Britannica, Inc. 1952) (c. 170

88 DUKE LAW JOURNA L [Vol. 47:87

Beyond the claim that it exists, however, there is surprisinglylit-

tle theoretical work about the information society. Sadly for aca-
demics, the best social theorists of the information age are still sci-
ence fiction writers,and in particularcyberpunks-the originatorsof
the phrase "cyberspace"and the premierfantasistsof the Net.3 If one
wants to understandthe informationage, this is a good place to start.
Cyberpunkscience fiction succeeded as a genre largely because
it combined a particularplot aesthetic with a particularconceptual
insight. The plot aesthetic was simple:the bad boy/film noir world of
the romanticlowlife. When juxtaposedto the two-dimensionalprig-
gishness of the normal science fiction hero, the cigarette smoking,
drugged-outpetty outlaws and mirror-shadedninja-chicksof cyber-
punk seemed rebellious, cynical and just, well, cool. The character-
type is a familiarone; James Dean could easily have played the hero
of Neuromancer.4The conceptual insight is not so familiar. Cyber-
punk is built on the extrapolation of two principal technologies-
computersand the Web on the one hand, and genetic engineeringon
the other. The theme of cyberpunkis that the informationage means
the homologization of all forms of information-whether genetic,
electronic, or demographic. I grew up believing that genes had to do
with biology, petri dishes and cells, and that computers had to do
with punch cards and magnetic disks. It would have been difficult to
imagine two more disparatefields. In contrast,cyberpunksees only
one issue-code-expressed in binarydigits, or the C's, G's, A's and
T's of a gene map.
The cyberpunkwriters also offer us a legal insight. The more
one moves to a world in which the message, ratherthan the medium,
is the focus of conceptual and economic interest, the more central
intellectual propertybecomes. Intellectualpropertyis the legal form
of the informationage.5Like most propertyregimes, our intellectual
propertyregime will be contentious in distributional,ideological and
efficiency terms. It will have effects on marketpower, economic con-

3. The anthology generally cited, at least in obligatory law review footnotes, is
5. For backgroundon the concept of legal form, see generally PAULHIRST,ON LAW
Rheinstein ed. & EdwardShils & Max Rheinsteintrans.,HarvardUniv. Press 1954) (1925);
Isaac D. Balbus,CommodityFormand Legal Form:An Essay on the "RelativeAutonomy"of
the Law, 11 L. & SOC'YREV.571,575-85 (1977);R. Warrington,Pashukanisand the Commod-
ity Form Theory,9 INT'LJ. SOC.L. 1, 5-9 (1981).

centrationand social structure. Yet, rightnow, we have no politics of

intellectual property in the way that we have a politics of the envi-
ronment, or of tax reform. We lack a conceptual map of issues, a
rough working model of costs and benefits, and a functioning coali-
tion-politics of groups unified by common interest perceived in ap-
parentlydiverse situations.
Why don't we have such a politics? One reason is that with a
few exceptions, the mass media coverage of the information age has
been focused firmly on "cyberporn"and its potential censorship.
This is rather like thinkingthat the most importantfeature of the in-
dustrial revolution was that it allowed for the mass-productionand
then the regulationof pornographicmagazines. Given the magnitude
of the changes occurring,and the relativelysmall differencesbetween
pornographyon-line and pornographyeverywhereelse, a more trivial
emblematicconcernwould be difficultto find.
It is intellectual property,not the regulation of cybersmut,that
provides the key to the distributionof wealth, power, and access in
the informationsociety. The intellectualpropertyregime could make
or break the educational,political, scientific, and culturalpromise of
the Net. Indeed, even if our only concernwas censorship,it would be
perverse to concentrate exclusively on the actions of governments.
The digital world gives new salience to private censorship-the con-
trol by intellectual property holders of distributionof and access to
information.The recent Scientologycases are only one obvious mani-
festation of this tendency.6
The media were not the only ones to miss the boat; lawyers and

6. See, e.g., ReligiousTech. Ctr.v. Netcom On-LineCommunicationsServs.,907 F. Supp.

1361, 1365 (N.D. Cal. 1995);ReligiousTech. Ctr. v. Lerma,908 F. Supp. 1362, 1364-65(E.D.
Va. 1995). The Scientologycases had a number of facts in common. A disgruntledformer
churchmemberor insiderposted large chunksof materialcopied directlyfrom the "Religious
Technology"manualsto the Web or the Usenet. To a skepticalreader,these manualswould
appearto describe a jargon-ladenprocessfor manipulatingpeople into joining the Churchof
Scientology. The believer, on the other hand,would considerthese manualsto be holy docu-
ments that should be availableonly to the faithfulof the Church,and that, in copyrightedlan-
guage, describeproceduresprotectedby tradesecretlaw for carryingon the church'sprofitable
anti-addictiontherapiesand other work. The courts have tended to favor the skeptic'sinter-
pretation. See id. at 1377-78 ("Althoughthe RTC broughtthe complaintunder traditional
secular concepts of copyrightand trade secret law, it has become clear that a much broader
motivationprevailed-the stiflingof criticismand dissentof the religiouspracticesof Scientol-
ogy and the destructionof its opponents."). Nevertheless,courtshave still found the primary
poster or copier of the materialto be liable for copyrightinfringement,while being more sym-
patheticto the unwittingInternetServiceProvideron whose computersthe postingwas made,
or to the newspaperwho quotedfromthe documentsin orderto reporton the case.
90 DUKE LAWJOURNAL [Vol. 47:87

legal academicslargelyfollowed suit. With a few exceptions,lawyers

have assumed that intellectual property is an esoteric and arcane
field, something that is only interesting (and comprehensible) to
practitionersin the field.7 There is some question whether this atti-
tude was ever defensible;it certainlyis not now. In terms of ideology
and rhetoricalstructure,no less than practicaleconomic effect, intel-
lectual propertyis the legal form of the informationage. It is the lo-
cus of the most important decisions in information policy. It pro-
foundly affects the distributionof political and economic power in
the digital environment. It impacts issues rangingfrom education to
free speech. The "value"protected (and in a sense created) by intel-
lectual property in the world economy is in the hundredsof billions
of dollarsand growingall the time.8

7. This attitude is in markedcontrastto lawyers'assumptionsabout, say, the jurispru-

dence of the First Amendment,or the Departmentof Education'srulingson race-conscious
scholarships.Thoughthese are also complicatedareasof law and regulation,manylawyersand
laypeople feel that a basic understandingof them is a sine qua non of politicalconsciousness.
In many cases, in fact, the "rightsdiscourse"of liberal constitutionallaw defines the central
issues of publicdebate, a fact that presentsits own problems. See CRITICALLEGALSTUDIES at
xli-xlvi(JamesBoyle ed., 1994).
SOCIETY2-3, 121 (1996); Michael L. Doane, TRIPS and
InternationalIntellectualPropertyProtectionin an Age of AdvancingTechnology,9 AM.U. J.
INT'LL. & POL'Y465, 465-66 (1994);Lester C. Thurow,Needed:A New Systemof Intellectual
PropertyRights,HARV.BUS.REV.,Sept.-Oct.1997,at 95,96-97. One journalisthas noted:
[M]ostyearsthe proportionof worldtradein physicalgoods shrinks,vis-i-vis the
trade in invisibles. Japanexportsnow not so much by moving the cars aroundthe
world,but by moving the money and ideas with whichthe cars are made:manufac-
ture is increasinglylocal.
Even where goods are shifted, the act of physicaltransfermay just be an elec-
tronicsignal. For the momentitems like pop videos and CDs are moved in physical
form, thoughof coursethe value of the productis 99 per cent the informationon the
disc or cassette, ratherthan the item itself. But soon the sale will involve just the
transferof some digital signalsand will appearas royaltiesor rightsratherthan ex-

... [P]hysicalexports will be less importantin world trade than they are now.
The varioustypes of invisibleexports-income flows frominvestments,paymentsfor
services, paymentsfor intellectualproperty-will soon be larger than the flow of
visible exports.
Hamish McRae, Here Come the FamousFive, INDEPENDENT (London), Sept. 14, 1997, Eco-
nomics, at 5. The actual figures bandied around are notoriouslyslippery, in part because
earningsfrom intellectualpropertymay be "invisible"on conventionaltrade balance sheets.
When figures are cited, it is generallyon a case-by-casebasis-for example, the intellectual
propertyvalue of softwareor of drugsderivedfrom plant forms. See, e.g., Darrell A. Posey,
ProtectingIndigenousPeoples'Rightsto Biodiversity,ENVIRONMENT, Oct. 1996,at 6, 9 (citing
a 1985 estimateof the marketvalue of plant-basedmedicines). Moreover,the economicsof the
estimates themselves are extremelyspeculative. For example, though it is claimed that the


There are two crucialaspectsof the currentinformationecon-

omy. The firstis the increasinghomologization of formsof informa-
tion. Thinkof the manywaysin whichit nowdoes not makesense to
distinguishbetween electronicand genetic information,any more
than it makes sense to distinguishbetween red books and green
books. We usedto thinkof geneticsas involvingthe disciplineof bi-
ology,the technologyof the test tube or the reagent,and the regula-
tory issues of bioethics or possible environmentalcontamination.
Sucha conceptionhardlysuggestsany link to the worldof software,
computerscienceand databases.Yet, preciselybecausewe conceive
of genetic informationand electronicinformationas information
(andhavethe technicalcapabilityto makegood on this conception),
boththe genomeandthe cybersphere havecometo presentthe same
issues of regulation-privacy,access,publicgoods problems,and so
on. Changea few nouns,anda debateoverthe compilationandeco-
nomic exploitationof databasesof private financialinformation
availableon the Internetcan be morphedinto a debate over the
compilation and economic exploitation of genetic information
throughthe HumanGenomeProject.Whoseprivacyis at risk? What
adversedecisionsaboutindividualsmaybe madeon the basisof pat-
ternsrevealedby the data? Who has investedmoney and laborin
compilation?Whatintellectualpropertyrightsarenecessaryin order
to ensurefutureresearchand informationgathering? Who has a
rightof accessto the information,andunderwhatcircumstances?
In some cases,the overlapbetweenformsof informationis a lit-
eralone. Geneticinformationis storedon computerdisksandmod-
eled andprobedthrough"genechips."9But "information-overlap"

United States alone loses $60 billion a year through failure to enforce intellectual property
rights,see Doane, supra,at 466, the assumptionsbehindsuch assessmentsare often debatable.
Losses quoted for "piracy,"for example, often assume that each pirated copy of software
wouldhave otherwisebeen purchasedat full price. Even with all of these limitations,and tak-
ing the lowest possible figuresfor software,pharmaceuticals,data-trading,etc., it is clear that
the "knowledge-value"componentof the worldeconomyis both enormousand expanding. See
generally TAICHISAKAIYA,THE KNOWLEDGE-VALUE 234-37 (George Fields &
WilliamMarshtrans.,KodanshaInt'l 1991)(1985).
In a "cleanroom"similarto manyothersin SiliconValley, a groupof technicians
is assemblingbatches of chips with the usual machinesof a semiconductorfactory.
But these chips are not fabricatedfrom layers of silicon. They are being made from
DNA, the stuff of genes. And they are designednot to do computationsbut to read
out the turbulentstreamsof informationthat evolutionhas packedinto the genomes
of livingorganisms.
92 DUKE LAW JOURNAL [Vol. 47: 87

also reveals itself in the functionalsimilaritiesof the business models

used to exploit informationadvantage. Those who control informa-
tion make money from it using strategiesthat are remarkablysimilar
whether the informationin questionis the record of filings in front of
the SEC or the gene maps revealed by the humangenome project.10
Sometimes the impact of the homology is on the boundariesof our
intellectual frameworksthemselves. An example is the development
of bio-informatics,a discipline that combines mathematics,biology,
and computer science, and that is premised on the belief that infor-
mation is information,whether the medium is a double helix or an
optical disk."
What effect does homology have on our culture and our political
debate? We are now used to the idea that Microsoft retains rights
over the lines of code sitting on computer hard drives around the
world. We can even produce a utilitarianjustificationto explain why
a corporationshould be entitled to such rights. It is a lot strangerto
think that MyriadGenetics has patented a string of genetic material
that women all over the countrymay carryin their bodies-BRCA1,
the so-called breast cancer gene-or that the CommerceDepartment
tried to patent the genes of a Guyami Indian woman who possessed
an abnormalresistanceto leukemia.'2From the point of view of the

The basic idea of the chips is to convertthe chemistryof life into a static form
programmedto monitor particulargenes. The chips are not in any sense living
things,thoughthey are made of DNA and programmedfrom the sequence of what-
ever gene they target. (The need to knowthe code in advanceis in many cases not a
seriouslimitationbecausemanygenes have now been sequenced,whichmeans that
the orderof theirchemicalunitshas been determined.)
NicholasWade, Meetingof Computersand Biology:TheDNA Chip,N.Y. TIMES,Apr. 8, 1997,
at Cl.
10. Biotech firms add value to informationdeveloped throughpubliclyfunded research,
and then demandpatent options as the prerequisitefor access by outsiders. See, e.g., Karen
Riley, RockvilleBiotechFirm TakesNext Stepin GeneticsJourney,WASH.TIMES, June 9, 1995,
at B7 (discussinga firm'splansto patenthumangenes for whichit receivedexclusiveaccess in
returnfor an $85 million grant). More modestly,financialdatabaseprovidersadd value to
public filings, providingreal-timeaccess to SEC filings for a fee, while also supportingthem-
selves with advertisingrevenue. See EDGAR Online TargetsStock Traderswith Low Prices,
INTERACrIVEMARKETING NEWS,Oct. 25, 1996, availablein LEXIS, Nexis Library,Curnws
11. For an introductionto the biologicalapplicationsof informationtheory,see Biological
Info. Theory & ChowderSoc'y, FrequentlyAsked Questions(FAQ) for
modifiedSept. 15,1997) <>.
In the forestsof Panamalives a GuyamiIndianwomanwho is unusuallyresistant
to a virus that causes leukaemia. She was discoveredby scientific"gene hunters,"

informationeconomy, though, the two cases are very similar;in each

case, stringsof code are subjectto intellectualpropertyrights granted
in the belief that they will inspire further innovation and discovery.
The fact that this can be done in the face of the profoundshock most
people feel at the ownership of human genes is a testament to the
universalizinglogic of the informationrelation. (Whether it is a good
idea for us to treat our genetic heritage as just another line of code is
a differentquestion.)
So far as I can tell, the "homologizing"process I have described
here is accelerating;indeed, it seems to be the metaphor guiding
some of the most interestingscientific developments of recent years.
The science pages have speculated about the possibility of using
DNA sequences as incredibly powerful parallel processing "com-
puters."'3 Conversely, software designers have created electronic
ecologies in which strings of computer code compete much the way
genes do in nature. The lines of computer code struggle to succeed,
evolving and changing in the process. The software engineer keeps
only those strings of computercode that survive-harnessing a form
of "natural"selection that Darwin would have recognized but could
never have imagined.l4
Put all of these examples together and then compare the resul-
tant socially and technologicallyconstructed"reality"to the way that
we thought about computers on the one hand, and biology on the
other, just twenty years ago. In the internationalinformation econ-
omy, the medium is not the message. The mediumis irrelevant.
The second crucial aspect of the informationeconomy is a cor-
ollary of the homologizationof forms of information-the decreasing
proportion of product cost and intellectual attention devoted to me-
dium rather than message. A moment's thought will show that both
of these aspects will give increased importance to intellectual prop-

engaged in seeking out native peoples whose lives and culturesare threatenedwith
extinction. Thoughthey providedbasic medicalcare, the huntersdid not set out to
preserve the people, only their genes-which can be kept in cultures of
"immortalised"cells grownin the laboratory. In 1993, the US Departmentof Com-
merce tried to patent the Guyamiwoman'sgenes-and only abandonedthe attempt
in the face of furiousprotestfrom representativesof indigenouspeoples.
Tom Wilkie, WhoseGene Is It Anyway?,INDEPENDENT (London), Nov. 19, 1995, Science, at
13. See, e.g., Frank Guamieri et al., MakingDNA Add, SCIENCE, July 12, 1996, at 220,
220-23(discussingthe "developmentof a DNA-basedalgorithmfor addition").
14. See JulianDibbell, TheRace to Build IntelligentMachines,TIME,Mar.25, 1996, at 56,
94 DUKE LAW JOURNAL [Vol. 47:87

erty. Reconceiving new areas of science, commerce and research as

"informationissues" simply gives us more fields in which we are
likely to spy the public goods problems that intellectual property is
supposed to solve. And the diminishingportion of product cost de-
voted to medium rather than message means that, within any given
area, the public goods problemsgrowmore salient.
It is easy to understandthe decreasingmarginalcost of medium
by consideringthe componentcosts of creatingsoftware. These costs
include both development and physical production costs. As pro-
grams become more complex, the cost of developing them increases
relative to the price of the diskettes onto which they can be copied.
Softwarecorporationsthereforefocus more attention on ways of pro-
tecting content, ratherthan controllingphysicaldistribution. It is this
focus on content that makes intellectualpropertyincreasinglyimpor-
tant in the informationage.


When I say that we lack a politics of intellectualproperty,I don't
mean to imply that this is the only type of "informationpolitics"-
more like the most neglected. Considerrecent events. From the net
roots campaign againstthe CommunicationsDecency Act (CDA)'5
to the titanicindustrylobbyingover the TelecommunicationsAct'6 in
which the CDA was embedded, there have been many moments of
political struggle and agitation over digital commerce and communi-
cations regulation.'7There have been conferences, both Pollyannaish
and despairing, over the use of the Net by non-profit groups, and
thoughtful warningsof the dangers posed by disparate access to in-
These are serious points;the issue of access in particular. But in
most cases, the issues I have just mentioned are isolated applications
to a new technology of a familiarpoliticalworldviewor calculationof
self-interest. Libertariansdon't want newspaperscensored;their atti-
tude to the Net is the same (though the interactive quality of the

15. Pub. L. No. 104-104,110 Stat. 133 (1996) (codifiedin scatteredsections of 18 U.S.C.
and 47 U.S.C.).
16. TelecommunicationsAct of 1996, Pub. L. No. 104-104,110 Stat. 56 (codified in scat-
tered sectionsof 18 U.SC. and47 U.S.C.).
17. See, e.g., ALA-led Coalition ChallengesCommunicationsDecency Act, AM. LIBR.,
Apr. 1996,at 13, 13-14.

technology, and the proprietaryfeeling that novelty gives first adopt-

ers have certainlygiven more people a stake in the protection of the
system.) Non-profit groups have to adjustto changes in communica-
tions technology, just like changes in tax law, or in the regulation of
lobbying. Communicationsconglomerateshave an attitude towards
bandwidth that seems indistinguishablefrom most commercial enti-
ties' attitude towards public land-rationally enough, they want
more, they want it free (ideally, they want it subsidized) and they
want to be able to exploit it without strings. The left sees a resource
with new importance-access to informationtechnology-and makes
about it the points that it makes about access to health care or educa-
tion.18I don't mean to minimize these concerns, and certainly don't
want to make the claim that they are somehow less fundamentalthan
the ones I describe here. But I do think that, precisely because of
their comfortablefamiliarity,they miss some of the differencesin the
politics of the informationage, the ideas we have not thought about
so often or so well.
Elsewhere, I have argued at unseemly length that there are
structuraltendencies in our patterns of thinking and discourse about
intellectual property that lead us generally to "over" rather than
"under"protect,'9and that partly as a result we are currentlyin the
midst of an intellectual land-grab,an unprecedentedprivatizationof
the public domain.2 I will summarize,rather than attempt to justify,
those claims here. (A table that might be helpful is on page 99.)
One of the roots of the problem is a conceptual one. The eco-
nomic analysis of informationis beset by internal contradictionand
uncertainty;informationis both a component of the perfect market
and a good that must be produced within that market. Under the

18. Given the fate of these argumentsin the contemporarypoliticalarena,I should reiter-
ate them. The distributionof a particularresource(be it education,healthcare, or wired-ness)
througha marketsystemis going to have a lot of seriousnegative effects on those who cannot
pay, effects that will trackand actuallyintensifyexistinginequalitiesof class, race and gender.
Given the importanceof the resourcein question,its relevanceto the citizens'status qua citi-
zens, and the corrosiveeffects of such inequalitieson the well-beingof the polity, something
should be done to mitigate or eliminatethe problemof access. All of these argumentsseem
profoundlytrue, but they are hardlynew. In fact, subjectmatter aside, they would have been
completelyfamiliarto the authorsof TheFederalistPapers.
19. For the argumentsbehindthis claim,see BOYLE, supranote 8, at 58 passim.
20. To assess the precise nature of the analogy to "land-grabs"in the American West,
readers might care to look at BernardDeVoto, Sacred Cows and Public Lands, HARPER'S
MAGAZINE, July 1948, at 44, reprintedin BERNARD DEVOTO,THEEASYCHAIR257 (1955)
(discussingthe livestock industry'slong-termaspirationto convert federally-ownedland to
state or privateownership).
96 DUKE LAW JOURNAL [Vol.47:87

former characterization,the market achieves perfection-a state in

which information is costless, instantly available and so on. Under
the latter characterization,informationmust be commodifiedso as to
give its producers an incentive to produce. But each property right
handed out to ensure the productionof informationis a transaction
cost when seen from the perspectiveof marketefficiency.21
The most succinct encapsulationof the problem comes from an
article co-written by Joseph Stiglitz and Sanford Grossman, two of
the most distinguishedscholarsof informationeconomics:"Thereis a
fundamental conflict between the efficiency with which markets
spreadinformationand the incentivesto acquireinformation."22 The-
oreticians often, though not always, "solve"this problem by ignoring

21. In my book, I explore the reasonswhy this problemis not solved when one moves to
the realityof imperfectmarkets. See BOYLE, supranote 8, at 3540. The abstractidea of trade-
offs also proves insufficientto generate the determinacyof resultthat most analystsclaim for
theirwork. See id.
22. SanfordJ. Grossman& JosephE. Stiglitz,On theImpossibilityof InformationallyEffi-
cientMarkets,70 AM.ECON.REV.393, 405 (1980). I cannothere go into a full analysisof this
debate, but those who talk confidentlyabout the economicefficiencyof the fine details of in-
tellectual propertydoctrinewould do well to look at the fundamentaldisputesbetween infor-
mation economists. For example, Kenneth Arrow argues that, without intellectualproperty
rights,too littleinformationwill be producedbecauseproducersof informationwill not be able
to captureits true value. (Even with intellectualpropertyrights,he believes that certainkinds
of informationgenerationmay need directgovernmentsubsidyon a cost-plusbasis.) See Ken-
neth J. Arrow, EconomicWelfareand the Allocationof Resourcesfor Invention,in THERATE
(National Bureau of EconomicResearched., 1962). On the other hand, Fama and Laffer ar-
gue that, withoutpropertyrightsor some other way of protectingagainstpublic goods prob-
lems, too much informationwill be generated because some informationwill be produced
solely to gain a temporaryadvantagein trading,thus redistributingwealth but not achieving
greaterallocativeefficiency. See Eugene F. Fama& ArthurB. Laffer,Informationand Capital
Markets,44 J. Bus. 289, 295-97(1971). In other words,in the absenceof informationproperty
rights, there may be an inefficiently high investment of social resources in information-
gatheringactivities, activities that merely slice up the pie differently,ratherthan making it
bigger. Hirshleifergives a similaranalysisof patent law, concludingthat patent law may be
either a necessaryincentivefor the productionof inventionsor an unnecessarylegal monopoly
in informationthat overcompensatesan inventorwho has alreadyhad the opportunityto trade
on the informationimplied by her discovery. See Jack Hirshleifer,The Privateand Social
Value of Informationand the Rewardto InventiveActivity,61 AM. ECON.REV.561, 570-72
(1971). The difficultyof yieldingdefinite resultsis compoundedby the fact that some profes-
sional economistsseem to have a naive, pre-realistunderstandingof law. They often talk as
though there was a naturalsuite of propertyrightswhich automaticallyaccompanieda free
market. They make strong and unexplainedassumptionsthat certaintypes of activities (for
example, tradingon a superiorinformation-position)would naturallybe allowed and involve
no harm to others but that certain other activities(for example,tradingon coercion through
superiorphysicalstrength)wouldnot be. There is a fascinatingstudyto be done on these rem-
nantsof classicaleconomicsstill presentin supposedlyneo-classicalanalysis. The same kind of
erroralso creepsinto the workof some lawyer-economists.See BOYLE, supranote 8, at 84-88.

it. They make a pre-theoreticalclassification,conventionally ascrib-

ing a certain problem to the realm of "efficiency problems" or
"incentiveproblems,"and then continue the discussionon that basis.
Thus, for example, we tend to look at the field of intellectual prop-
erty with a finely honed sensitivity to "publicgoods" problems that
might lead to underproduction,while underestimatingor failing to
mention the efficiency costs and other losses generated by the very
rightswe are granting.23
An alternative method for smoothing over the tensions in the
policy analysis is to acknowledgethe tension between efficiency and
incentives, point out that there are some limitations imposed on in-
tellectual property rights, to conclude that there are both efficiency-
promoting and incentive-promotingaspects to intellectual property
law, and then to imply that an optimal balance has been struck.24
(This is rather like saying that because fishermen throw some fish
back, we can assume over-fishing does not occur.) In general, I
would claim that there is a tendency to think that intellectual prop-
erty is a place to apply our "public goods/incentives"theory rather
than our "anti-monopoly/free-flowof information"theory.- All by

23. See BOYLE, supranote 8, at 35-36.

24. Some argumentsare more sophisticated. "In principle,there is a level of copyright
protection that balances these two competinginterests optimally.... We shall see... that
variousdoctrinesof copyrightlaw, such as the distinctionbetween idea and expressionand the
fair use doctrine,can be understoodas attemptsto promoteeconomicefficiency...." William
M. Landes& RichardA. Posner,An EconomicAnalysisof CopyrightLaw, 18 J. LEGALSTUD.
325, 333 (1989) (emphasisadded). Despite the qualifyingphrases,one leaves the Landes and
Posner article with the sense that copyrightlaw has hit the appropriatebalance between effi-
ciency and incentives. This level of comfortwiththe currentregimeis to be comparedwith the
open skepticismdisplayedby economistssuch as Hirshleifer. See Hirshleifer,supranote 22, at
572 (notingthat patent protectionmay or may not be necessaryin orderto producean appro-
priate incentive for invention). It will be interestingto watch the Supreme Court's attitude
towardthese issues over the next few years, given the identity of one of the originalskeptics.
See Stephen Breyer, The UneasyCasefor Copyright:A Studyof Copyrightin Books, Photo-
copies,and ComputerPrograms,84 HARV.L. REV.281 (1970).
25. In one sense, the currentconfigurationof federal bureaucraciesmirrorsthe tensions I
have been describingin this Essay. The Federal Trade Commissionand the Justice Depart-
ment tend to view informationissues from an efficiency perspective,acceptingthe need for
economic incentives but remainingmore skeptical about the monopoly effects of extensive
intellectualpropertyrights. See ChristineA. Varney, Antitrustin the InformationAge: Re-
marksBefore the CharlesRiver AssociatesConferenceon Economicsin Legal and Regulatory
Proceedings7-13 (May 4, 1995) (pre-distributiondraft, on file with author) (perspectiveof a
FederalTrade Commissioner).On the other hand,the CommerceDepartment-as well as the
Clintonadministration-takes a strongincentive-focusedapproachto most issues. See Pamela
Samuelson, The CopyrightGrab,WIRED,Jan. 1996, at 134, 135-36. As a result, the battle to
regulatethe informationeconomy is a fascinatingfusion of organizationalpersona, economic
theory and politicalturfwar.
98 DUKE LAW JOURNAL [Vol. 47: 87

itself, this tendency might push rhetoric and analysis towards more
expansive property rights. That push is compounded, however, by
two other factors.
First, courts are traditionally much less sensitive to First
Amendment, free speech and other "free flow of informationargu-
ments" when the context is viewed as private rather than public, or
property rather than censorship. Thus, for example, the Supreme
Courtwill refuse to allow the state to ban flag burning,26
but it is quite
happy to create a propertyright in a generalword such as "Olympic,"
and allow the word to be appropriatedby a private party which then
selectively refuses public use of the word. Backed by this state-
sponsored"homestead law for the English language,"27the United
States Olympic Committee (USOC) has decreed that the handi-
capped may have their "SpecialOlympics,"but that gay activistsmay
not hold a "Gay Olympics.""The Court saw the USOC's decision
not as state censorship,but as a mere exercise of its private property
rights. (Emboldened, Chief Justice Rehnquist applied the same ar-
gument to the Americanflag.)29
Second, intellectualpropertyrights are given only for "original"
creation. But the idea of the original author or inventor implicitly
devalues the importanceof the raw materialswith which any creator
works-the rhetorical focus on originality tends to undervalue the
public domain. After all, the novelist who, as Paul Goldstein puts it,
"craft[s]out of thin air"3 does not need a rich and fertile public do-
main on which to draw. The ironic result is that a regime which lauds
and proposes to encouragethe great creator,may in that process ac-
tually take away the raw materialswhich future creatorsneed to pro-

26. See Texas v. Johnson,491 U.S. 397,414-15,420 (1989).

27. Felix S. Cohen, TranscendentalNonsenseand the FunctionalApproach,35 COLUM.
REV. 809, 817 (1935), reprinted in THE LEGALCONSCIENCE:
COHEN 33, 42 (LucyK. Cohened., 1970).
28. See San FranciscoArts & Athletics, Inc. v. United States OlympicComm.,483 U.S.
522, 525-27(1987).
Only two terms ago, in San FranciscoArts and Athletics,Inc. v. UnitedStatesOlym-
pic Committee,the Courtheld that Congresscould grant exclusive use of the word
"Olympic"to the United StatesOlympicCommittee.... As the Courtstated,"when
a word [or symbol]acquiresvalue 'as the resultof organizationand the expenditure
of labor,skill, and money' by an entity,that entity constitutionallymay obtain a lim-
ited propertyrightin the word [or symbol]." SurelyCongressor the Statesmay rec-
ognize a similarinterestin the flag.
Johnson,491 U.S. at 429-30(Rehnquist,C.J.,dissenting)(citationsomitted).
30. PaulGoldstein,Copyright,38 J. COPYRIGHT SOC'YOFTHEU.S.A. 109, 110 (1991).

ducetheirlittlepiece of innovation.Mybook providesa lengthydis-

cussionof thistendency,31so I willnot dwellon it here.


SubjectMatter Information. Invention.

Perspective Efficiency. Incentives.
TransactionCosts. PublicGoods Problems.
Paradigmatic Barriersto the free flow of Inadequateincentivesfor
p Conception information lead to the futureproductionlead to the
of Problems inhibition of innovation inhibitionof innovationand
and inadequatecirculation inadequatecirculationof
A. ~of information. information.
Reward (if any)
for... Effort/Investment/Risk. Originality/Transformation.
View of the Finite resourcesfor future Infinite resources for future
Public Domain creators. creators.
Development based on Creation ex nihilo. "Copy-
existing material. "Poetry right is about sustaining the
can only be made out of conditions of creativity that
Vision of the other poems;novels out of enable an individualto craft
Productive other novels.... All of this out of thin air an Appala-
q Process was much clearer before chian Spring, a Sun Also
the assimilation of litera- Rises,a CitizenKane."33
ture to private enter-
prise. ..."32
Free speech/Free circula- Propertyrights:the creator's
Normative tion of ideas and informa- "natural"right, the reward
StartingPoint tion. for past creation, the incen-
~I~~~~~~~_ to produceagain.
Thetensionsarearranged in twoverticalsets. Eachset is notintendedto be a listof corollar-
ies;indeedtheyaresometimesinternally contradictory.Anyparticular portionof an informa-
tionregimeis likelyto mixandmatchthe columns,likea restaurant patronpickingfourfrom
columnB andone fromcolumnA. Nevertheless, the membersof eachcolumnaremostlikely
to be foundin popularandscholarlydiscoursewhenlinkedto theirverticalneighbors.The
effectof focusingon inventionis to makethe itemsin the middlecolumneitherdisappearor
recedein importance.

31. See BOYLE,

supranote 8, at 51-60.
33. Goldstein,supranote 30, at 110 (emphasisadded).
100 DUKE LAWJOURNAL [Vol. 47: 87

So much for the background.Now a brief case study.34The diffi-
culty in choosing a case is not in finding an example of intellectual
property expansion, but in knowingwhich one to pick. The last few
years have seen the expansion of first copyrightand then patent to
cover software, the patentingof life-formsand human genes, the ex-
tension of copyrightterm limits, and so on. Speakingnot to the level
of protection, but to the current conception of intellectual property
law, it is interesting to note the recent legislative proposal that the
Patent Office (and perhaps even the CopyrightOffice) should cease
to be part of the governmentand should instead be converted to gov-
ernment corporations or "performancebased organizations"which
would be forced to pay greater attention to their "users"and might
even be funded throughuser fees.35The idea that the rights-holders
are the true "users"or "clients"of the office is a striking one. One
might have thought that the Patent Office was supposed to represent
the public's interest in the developmentof the useful and mechanical
arts and physical sciences. On the internationallevel, we have seen
the General Agreement on Tariffsand Trade (GATT)36used to turn
intellectual propertyviolations into trade violations, thus codifying a
particularvision of intellectual property and sanctifyingit with the
label of "TheMarket."37 The example that I will pick, however, is the

34. This section of the Essay is a revised versionof the analysisprovidedin some of my
earlier work. See James Boyle, Sold Out, N.Y. TIMES,Mar. 31, 1996, at E15 (opining that
"robberbaronsare buyingup the informationage");James Boyle, Is Congressturningthe In-
ternetinto an informationtoll road?,INSIGHT, Jan. 15, 1996,at 24 (criticizinglegislativepropos-
als to expandintellectualpropertyrights);BOYLE, supranote 8, at 135-39(criticizingthe Clin-
ton administration's"White Paper" on its explication of the state of existing intellectual
35. See OmnibusPatent Act of 1996, S. 1961, 104th Cong.;Morehead-SchroederPatent
ReformAct, H.R. 3460,104thCong.(1996).
36. General Agreementon Tariffsand Trade,Oct. 30, 1947, 61 Stat. A-11, T.I.A.S. 1700,
55 U.N.T.S. 194.
37. Employingchild labor or violatingenvironmentalregulationswill give a nation's in-
dustrywhat might seem to be an unfaircompetitiveadvantage,but will apparentlynot trigger
trade sanctionsunder existing treaties. See generallyNorth AmericanAgreement on Labor
Cooperation,Sept. 14, 1993, Can.-Mex.-U.S.,pt. 5, 32 I.L.M.1499, 1509-13(1993) (setting out
provisionsfor the resolutionof internationallabor disputes);Robert Howse & MichaelJ. Tre-
bilcock, TheFair Trade-FreeTradeDebate:Trade,Labor,and the Environment,16 INT'LREV.
L. & ECON.61, 62 (1996) (notingthat the GATT/WorldTrade Organizationframeworkdoes
not allow the impositionof tradesanctionson nationsthat violate environmentalor labor stan-
dards). However, refusingto accept and enforce a nation'svision of intellectualpropertylaw
can be cause for internationalaction. See J.H. Reichman,Compliancewiththe TRIPSAgree-
ment:Introductionto a ScholarlyDebate,29 VAND. J. TRANSNAT'L L. 363, 367 (1996).

Clinton administration'sproposal for copyright on the Net, a docu-

ment that provided the blueprint for the last two years of domestic
and international regulatory efforts to expand intellectual property
If the informationsociety has an iconic form (one could hardly
say an embodiment) it is the Internet. The Net is the anarchic,de-
centralized network of computers that provides the main locus of
digital interchange. While Vice President Gore, the Commerce De-
partment and the National Telecommunications and Information
Administration were planning the "informationsuperhighway"the
Net was becoming it. Accordingly, if the government produced a
proposal that laid down the ground rules for the information econ-
omy, that profoundlyaltered the distributionof propertyrights over
this extremely important resource and that threatened to "lock in"
the power of current market leaders, one would expect lawyers,
scholarsand the media to pay a great deal of attention.
Nothing could be furtherfrom the truth. The appearanceof the
Clinton administration's"WhitePaper"38on intellectual property on
the National Information Infrastructureproduced almost no press
reaction. The same was true of the introductionand eventual stalling
of the White Paper's legislative proposalsin both the House and the
Senate.39Slightly more attention was paid when the administration
transferredits efforts to the international arena, reintroducingkey
elements of the failed legislation as treaty proposals at the World In-
tellectual PropertyOrganization(WIPO) conference in Geneva. The
administration even added a new "database"proposal40that would
have created an entirely novel (and probablyunconstitutional)right
to own facts. That right would have been effectively permanent and
would not have been restrainedby the traditionallimitationsof copy-
right law, such as fair use. This proposal, with its potentially devas-
tating effects on research and free speech, and its offer of a potent
new tool of private censorship, drew fire from the research estab-


39. H.R. 2441, 104th Cong. (1995), and S. 1284, 104th Cong. (1995), eventually stalled
because of intense resistancefrom a variety of groups, includinginternet service providers,
computercompanieswhichembrace"opensystems,"teachers,scientists,and civil libertarians.
40. See World Intell. Prop. Org., Basic Proposal for the SubstantiveProvisions of the
Treaty on IntellectualPropertyin Respect of Databasesto Be Consideredby the Diplomatic
Conference(visitedNov. 20,1997) <>.
102 DUKE LAWJOURNAL [Vol. 47:87

lishment, civil liberties groups and even--embarrassinglyfor its pro-

ponents-from the databaseindustryit was designedto protect.41For
a moment, public attention was focused on the extraordinaryprivati-
zation of the public domain being carried out in the name of incen-
tives. (Notably, the database proposal'spotential restrictionson ac-
cess to sports statisticsgenerated the most heated opposition against
Eventually,the United States abandonedthe proposed database
treaty and, baseball scores being safe, public attention subsided once
more. The legislative debate has now shifted to the legislation im-
plementing the WIPO Copyrighttreaty, which reiterates all the key
elements of the expansiveintellectualpropertyagenda that were first
laid out in the White Paper.43If one wishes to understandthe lacunae
and blind-spotsin our currentdiscourseof intellectualproperty,it is
to this documentthat one shouldturn.
Elsewhere, I and many others have written about the problems
with the White Paper's account of current law, its distressing ten-
dency to misstate, minimize or simply ignore contrarycases, policy
and legislative history, and its habit of presenting as settled that
which is in fact a matterof profounddispute.44There have also been

41. See Letter from Jean Cantrell,Director, Governmentand IndustryAffairs, Dun &
Bradstreet,to CarmenGuzmanLowry,Associate Commissionerfor Governmentaland Inter-
nationalAffairs,United States Patentand TrademarkOffice (Nov. 22, 1996) (on file with the
Duke LawJournal),availableat <>.
James Love of the ConsumerProjecton Technology,a Ralph Nader organization
that has been trackingthe proposedtreaty,said publicopinion againstthe plan was
galvanizedwhen it becameapparentthat the treatywouldaffectthe disseminationof
sportsstatistics. If the treatybecame law, Love said, newspaperscould be required
to obtaina license fromthe professionalsportsorganizationsto printbox scores, and
baseballcardcompanieswouldhave to obtainpermissionfrom MajorLeague Base-
ball to list batting averages, earned run averages and other statistics on players'
cards. The PTO received700-800commentson the sportsstatisticsissue alone, Love
DatabaseProtectionPlan Defeatedin Geneva,But it May Returnin 1997, SOFTWARE L. BULL.,
Jan. 1997, at 8; see also JonathanGaw, Lockedup? DatabasesAre Focus in Debateover Intel-
lectualProperty,STARTRIB.(Minneapolis),Dec. 1, 1996, at 1D (noting that the treaty would
allow MajorLeague Baseball to collect fees from personswho post box scores on the Web);
David Post, Tryingto Stake a Claimon Information,RECORDER, Feb. 27, 1997, at 4 (noting
that restrictedaccessto professionalsportsstatisticsis but "thetip of a very largeiceberg").
43. Unlike the administration'sproposed implementinglegislation for the 1996 WIPO
Copyrightand Performancesand PhonogramsTreaties,the implementingscheme proposedby
SenatorJohn Ashcroftdoes not attemptto read the White Paper'sversionof the law into the
language of the treaty. CompareH.R. 2281, 105th Cong. (1997), and S. 1121, 105th Cong.
(1997), withS. 1146,105thCong. (1997) (Ashcroftbill).
44. See generally James Boyle, IntellectualPropertyPolicy Online:A Young Person's

thoughtful analyses of some of the potential negative effects of the

White Paper and its implementing legislation, focusing particularly
on the consequences for libraries, for software innovation, and for
privacy.45Defenders of the White Paper have argued that its propos-
als are necessary to protect content on, and encourage fuller use and
faster growth of, the Net."
From my point of view, however, the really depressing thing

Guide,10 HARV.J.L. & TECH.47,58-111 (1996) and sourcescited therein. This tendencycon-
trastsunfavorablywith the most thoughtfuldefense of the White Paper,which argued that its
protectionswouldbe necessaryto put "Carson the 'InformationSuperhighway"' but whichwas
carefulto acknowledgethat some of the White Paper'slegal theories were controversial,and
then defended them on their own terms ratherthan offeringthem as propositionsso obvious
they needed no defense. See Jane C. Ginsburg,PuttingCars on the "InformationSuperhigh-
way:"Authors,Exploiters,and Copyrightin Cyberspace,95 COLUM. L. REV.1466, 1476 nn.39
& 41 (1995) (defendingthe White Paper'sembraceof the RAM copy theory but pointingout
that this approachhas been "questionedor even stronglycriticized");see also Jessica Litman,
The ExclusiveRightto Read, 13 CARDOZO ARTS& ENT.L.J. 29, 30, 41-49 (1994) (noting that
an early draftcharacterizedits recommendationsas "minorclarificationsof well-settledprinci-
ples," but arguingthat these recommendationswould, in fact, "amountto a radicalrecalibra-
tion of the intellectualpropertybalance").
45. See, e.g., Niva Elkin-Koren,CopyrightLaw and Social Dialogue on the Information
Superhighway:TheCaseAgainstCopyrightLiabilityof BulletinBoard Operators,13 CARDOZO
ARTS& ENT.L.J.345, 349 (1995) (analyzingthe problemscreatedby applyingcopyrightlaw in
a digitized environment);Andrea Lunsford& SusanWest Schantz,CopyrightBill Pending in
CongressThreatensFree Exchangeon Internet,COLUMBUS DISPATCH, Mar. 26, 1996, at 7A
(discussingpotentialwinnersand losers of proposedCopyrightAct of 1995);David Post, New
Wine,Old Bottles:The EvanescentCopy, AM. LAW.,May 1995, at 103, 103 (discussingthe ef-
fects of technologyon copyrightlaws); Pamela Samuelson, The NII IntellectualPropertyRe-
port, COMM.ACM, Dec. 1994, at 21, 21 (exploringhow the White Paper misrepresentsthe
currentstate of copyrightlaw and upsetsthe longstandingbalancebetween public interest and
publisherinterests);Evan St. Lifer & Michael Rogers, NII WhitePaper Has LibrariesCon-
cernedAbout Copyright,LIBR.J. NEWS,Oct. 1, 1995, at 12, 12, 13 (noting the concerns of li-
brariesin regardto copyrightregulationsproposedin NII White Paper);Vic Sussman,Copy-
right Wrong?A Fight Brews over Who Gets to Own the Future,U.S. NEWS& WORLDREP.,
Sept. 18,1995, at 99 (summarizingconcernscreatedby NII WhitePaper). Manyof these points
were also made in testimony. See IntellectualPropertyand the National InformationInfra-
structure:PublicHearingBeforethe WhiteHouse InformationInfrastructure TaskForce (visited
Nov. 20,1997) <gopher://
%20Prof.%20Jessica%20Litman> (testimony of Jessica Litman, Professor of Law, Wayne
State Univ.); Commentsof ProfessorMaryBrandtJensen,Universityof SouthDakota School of
Law (visitedNov. 20, 1997)<gopher://
mments%20of%20%20Professor%20Mary%20Brandt%20Jensen>; Comments of Professor
Neil Netaneland ProfessorMarkLemley, Universityof TexasSchool of Law (visited Nov. 20,
1997) <gopher://
46. See Ginsburg,supranote 44, at 1482-83,1492-99.
104 D UKE LAW JOURNAL [Vol. 47: 87

about the report is that it fails to accomplishits stated goal: it never

examines what level of intellectual property rights would be neces-
sary in cyberspace. It fails in a way that is both revealing and dis-
turbing. The problem isn't simply its tendency to give a pro-author
account of the existing law. Even if the White Paper's summaryof
intellectual propertylaw were accurate,there might well be reasons
why a differentlevel of protectionmight be appropriatein the digital
environment. The real problemis that the White Paper does not try
to weigh both the benefits and the costs of the Net to content provid-
ers, or the changes that network economics brings to the analysis of
public goods. For example, the global reach and ease of access that
the Net offers clearlyfacilitateillegitimatecopying. But these factors
also cut down enormouslyon advertisingand on the costs of distribu-
tion, potentially yielding a higher percentagereturnfor a lower level
of investment. Thus,while some producersmight requirea high level
of intellectual propertyrights, others could produce an adequate re-
turn with a lower level of protection and thus have incentive to con-
tinue productionin the future.
Some "digital products"require enormous investments of time
and energy, are of lasting value, requireno "tied"subsidiaryservices
to make them work, and can be copied for pennies. Others require
little investment precisely because of their digital nature. These
products do not require extensive research and development or can
be protectedby a variety of means. For example,producerscan deny
access to certain users (databasesand search engines); they can pre-
emptively release "demo" or partially disabled shareware versions
(DOOM); they can reap the benefits of being first to market; they
can rely on "tying arrangements"such as help lines, technical assis-
tance or paid advertising(Netscape) and so on. The point is that the
digital environment is complicated;the same technical factors that
make copying easier also yield other ways for producersto recover
their investments, or to encourage further innovation. Rather than
take these complexities seriously, the White Paper simply assumes
that on the Net, a right-holderneeds all the rights available outside
the Net, plus some new ones as well. To the point that there are mul-
tiple ways for producers to secure an adequate return on their in-
vestment of time and ingenuity,the White Paper opines weakly that
not everyone will choose to exercise the rightsthe report proposes to
give them.47This is rather like responding to the argument that a

47. See WHITE supranote 38, at 15-17.


capital gains tax cut is not necessaryto stimulate investment with the
rejoinder that some investors may decide to give the extra money to
charity. Yes, it may happen, but that doesn't go to the question of
whether the change was necessaryin the first place.
More important than the individual positions taken, however,
are the logical fallacies and baseline errorswith which the White Pa-
per is riddled. Intellectual property rights are limited monopolies
conferred in order to produce present and future public benefit. For
the purposes of achieving those goals, the "limitations"on the right
are just as importantas the grant of the right itself. To put it more
accurately,since there is no "natural"absolute intellectual property
right, the doctrines which favor consumers and other users, such as
fair use, are just as much a part of the basic right as the entitlement of
the author to prevent certain kinds of copying. Even the source of
the Congress's authority in intellectual property matters-Article 1,
Section 8, clause 8 of the Constitution-mentions two limitations on
intellectual propertyrights. The first is functional:"To promote the
Progress of Science and useful Arts...." The other is temporal:
"[B]y securingfor limited Times to Authors and Inventors the exclu-
sive Right to their respectiveWritingsand Discoveries[.]"48Thus, in-
tellectual property is a particularlyinappropriatearea to talk about
propertyrightsas if they were both naturaland absolute.
Yet this the White Paper does with a dogged consistency and an
unlikely passion. Observe in the following quotation how the White
Paper first sets up its own inflated idea of intellectual propertyas the
baseline, then implies that right-holders actually have an absolute
property right in the continuationof that level of protection. Amaz-
ingly, the "limitations"that define intellectualpropertyrights instead
become a "tax"on right-holders.
Someparticipants havesuggestedthatthe UnitedStatesis beingdi-
videdintoa nationof information "haves"and"havenots"andthat
this couldbe amelioratedby ensuringthat the fair use defenseis
broadlygenerousin the NII context. The WorkingGrouprejects
the notionthat copyrightownersshouldbe taxed-apart from all
others-to facilitatethe legitimategoalof "universal access."49
Of course, given the goals of copyrightlaw, it would have made
just much sense if the argumenthad been reversed, taking the fair

48. U.S. CONST.

art I, ? 8, cl. 8.
49. WHITE PAPER,supranote 38, at 84.
106 DUKE LAW JOURNAL [Vol. 47:87

use rights of users and consumersas the baseline. The White Paper
wants to give expansive intellectual property rights because it be-
lieves, wronglyin my view, that this is the best way to encouragepri-
vate companies to fund the constructionof the information super-
highway. In response, a more skeptical Working Group might have
Some reportshave suggestedthat the difficultiesof encouraging
companiesto developthe NationalInformation Infrastructure
be amelioratedby ensuringthat intellectualpropertyrights are
broadlygenerousandfairuserightsarecurtailedin the NII context.
The WorkingGrouprejectsthe notionthatconsumers,futurecrea-
torsandotherholdersof fairuserightsshouldbe taxed-apartfrom
all others-to facilitatethe legitimategoal of encouraginginvest-
mentin the information superhighway.
The White Paper not only illustrates the pervasive power of
baseline fallacies in information economics, it also shows how the
"original author" vision downplays the importance of fair use and
thus encouragesan absolutistratherthan a functionalidea of intellec-
tual property. In a footnote to the passage quoted above, the Work-
ing Group explainsfurther:
The lawsof economicsandphysicsprotectproducersof equipment
andtangiblesuppliesto a greaterextentthancopyrightowners. A
forexample,haslittlechoicebutto payto acquirephoto-
copyequipment,computers, paperanddiskettes.It may,however,
seeksubsidization fromcopyrightownersby arguingthatits copying
anddistribution of theirworksshould,as a fairuse, not be compen-
This explanationcompletes the picturepresentedabove. Fair use
rights are a subsidysought by universities. But wait a minute. Even
if the only goal of intellectual propertylaw was to encourage future
innovation and informationproduction,this argumentwould be fal-
lacious. Future creatorsneed some raw material to work with, after
all. Fair use is one importantmethod of providingthat raw material.
It can also be seen as part of the implicit quid pro quo of intellectual
property:We will give you this extremely valuable legal monopoly,
backed with state power and enforced throughthe courts (and by the
FBI); in return,we will design the contoursof your right so as to en-
courage a variety of sociallyvaluableuses. The White Paper wants to

50. Id. at 84 n.266.


give copyrightholders the quid while claimingthat the quo is a tax, or

a forced subsidy. Only the unfamiliarityof intellectual property con-
ceals the ludicrousnessof the argument. It's as if a developer had ne-
gotiated a fat package of cash grants and tax breaks as the price of
building a new stadium in Washington, D.C. and then wanted to
claim the benefits of the deal while insisting that to make him fulfill
his side of the bargainwould be to confer a "subsidy"on the city.51
The press reaction to the White Paper was respectful, but not
terriblyinsightful.Obviously at a loss as to whom to contact, the re-
porters got reactions from the Business Software Alliance, the re-
cording industry and the publishers'lobbyists. Surprisinglyenough,
all these groups felt that this was a fine document, the result of me-
ticulous analysis, and a good basis for the future. Only later did the
press begin to contact those who would be negatively affected by the
proposed changes:libraries,on-line service providers,teachers and so
The coverage in the media demonstratedtwo vital things about
the future of intellectual property. First, in the field of intellectual
property,it is still possible to get away with argumentswhich, if made
about any other area of regulation,would arouse howls of derision-
or at least well-informedskepticism;compare press reactions to pro-
posals for a flat-tax or arguments that property owners should be
compensated for the costs of complying with environmentalregula-
tions. Second, the press and the public simply have no idea of the
likely "sides"or "interests"involved in such a decision. If a labor law
is passed, the WashingtonPost doesn't only call the Chamber of
Commerce; on environmentalissues they don't only call the Sierra
Club. Yet on intellectual property issues, they only call the largest
property holders. The idea that startup software developers, aca-
demics, librarians,civil libertariansand so on might have a distinct
perspective on these issues simply hasn't emerged into popular con-

51. Generallysuch argumentsturn on disagreementsover the currentlaw baseline from

which"subsidies"or "taxes"are calculated. The remarkablethingabout passagesin the White
Papersuch as the one quotedabove is that they suggestthat any fair use rightswouldconstitute
a subsidyto users. Not all of the White Paper'sdiscussionis this extreme, however. Some of
the debate still turnson differencesof opinionabout the meaning of fair use jurisprudence. I
have discussedthe deficiencies in the White Paper's account of currentlaw elsewhere. See
James Boyle, The Debate on the WhitePaper (visited Aug. 19, 1997) <http://www.harvnet.har->.
108 DUKE LAW JOURNAL [Vol. 47: 87


Assume for a moment that we need a politics of intellectual

property. Go further for a moment, and accept the idea that there
might be a special need for a politics to protect the public domain.
What might such a politics look like?
Right now, it seems to me that, in a number of respects, we are
at the stage that the American environmentalmovement was at in
the 1950s or 1960s. At that time, there were people-supporters of
the park system, hunters, birdwatchersand so on-who cared about
what we would now identify as "environmental"issues. In the world
of intellectual propertywe now have start-upsoftware engineers, li-
braries, appropriationistartists, parodists, biographers, biotech re-
searchers, and others. In the 1950s, there were flurries of outrage
over particularenvironmentalcrises, such as proposalsto build dams
in national parks. In later years, the public was shocked by burning
rivers and oil spills. In the world of intellectual property, we cur-
rently worry about Microsoft's allegedly anti-competitivepractices,
the uncertainethics of patenting human genes, and the propriety of
using copyright to silence critics of the Churchof Scientology. We
are notably lacking two things, however. The first is a theoretical
framework,a set of analyticaltools with which issues should be ana-
lyzed. The second is a perception of common interest among appar-
ently disparate groups, a common interest which cuts across tradi-
tional oppositions.(Huntervs. Birdwatcher,for example.)
What kinds of tools am I talking about? Crudelyspeaking, the
environmental movement was deeply influenced by two basic ana-
lytical frameworks.52 The first was ecology, the study of the fragile,

52. Although this may be an oversimplification,it does not seem to be a controversial

First, the basic analyticalapproachand policy values underlyingenvironmental
law came froma fundamentalparadigmshiftbornof Rachel Carsonin 1961,perhaps
assistedunwittinglyby Ronald Coase, redefiningthe scope of how societal govern-
ance decisionsshouldbe made. Whatwe mightcall the Rachel CarsonParadigmde-
clared that, althoughhumansnaturallytry to maximizetheir own accumulationof
benefits and ignore negative effects of their actions,a society that wishes to survive
and prospermust identify and take comprehensiveaccount of the real interacting
consequencesof individualdecisions,negative as well as positive, whetherthe mar-
ketplace accountsfor them or not. Attemptsto achieve such expandedaccountings,
as much as anything,have been the commonthreadlinkingthe remarkablerangeof
issues that we call environmentallaw.
ZygmuntJ.B. Plater, From the Beginning,a FundamentalShift of Paradigms:A Theoryand
ShortHistoryOf EnvironmentalLaw, 27 LoY. L.A. L. REV.981, 981-82 (1994). I would re-
place Coase with A.C. Pigou, and mention Aldo Leopold as well as Carson,but otherwise
agree with the above account. Focusingon Leopold emphasizesthe extent to which environ-

complex and unpredictableinterconnectionsbetween living systems.

The second was welfare economics,which revealed the ways in which
markets can fail to make economic actors internalizethe full costs of
their actions. The combination of the two ideas yielded a powerful
and disturbingconclusion. Marketswould routinelyfail to make eco-
nomic actors internalize their own costs, particularlytheir own envi-
ronmentalcosts. This failure would routinelydisruptor destroy frag-
ile ecological systems, with unpredictable, ugly, dangerous, and
possibly irreparable consequences. These two types of analysis
pointed to a general interest in environmentalprotection, and thus
helped to build a large constituencythat supportedgovernmentalef-
forts to that end. The duck hunter'sefforts to preserve wetlands as a
species habitat turn out to have wider functions in the prevention of
erosion and the maintenance of water quality. The decision to burn
coal rather than gas for power generation may impact everything
from forests to fisheries.
Of course, it would be silly to think that environmental policy
was fueled only by ideas rather than by more immediate desires. As
former EPA director William Ruckelshaus put it, "[w]ith air pollu-
tion there was, for example, a desire of the people living in Denver to
see the mountains again. Similarly,the people living in Los Angeles
had a desire to see one another."53Funnily enough, as with intellec-
tual property, changes in communicationstechnology also played a
In ourlivingroomsin the middlesixties,blackandwhitetelevision
wentout andcolortelevisioncamein. We have onlybegunto un-
derstandsomeof the impactsof televisionon ourlives,but certainly
for the environmentalmovementit was a bonanza. A yellow outfall
flowing into a blue riverdoes not have anywherenear the impacton
black and white television that it has on color television; neither
does brownsmog againsta blue sky.54

Nevertheless, the disciplines of ecology and welfare economics

were extremely important for the environmentalmovement. They
helped to provide substanceto its agenda, to reconstructits rhetoric.

mentalismwas drivenby a belief that the economicvaluationand "commodification"of envi-

ronmentalresourceswas not only incompletebut actuallyunethical. See ALDOLEOPOLD, A
53. William D. Ruckelshaus,EnvironmentalProtection:A Brief History of the Environ-
mentalMovementin Americaand theImplicationsAbroad,15 ENVTL. L. 455, 457 (1985).
54. Id. at 456.
110 DUKE LAW JOURNAL [Vol. 47: 87

They also helped environmentaladvocates to perceive a common in-

terest and build effective political coalitions. Ideas which began as
inaccessible, scientific or economic concepts, far from popular dis-
course, were broughtinto the mainstreamof Americanpolitics. This
process was not easy or automatic. Popularizingcomplicatedideas is
hardwork. There were brilliantbooks like SilentSpring5and A Sand
CountyAlmanac, television discussions,documentarieson Love Ca-
nal or the Californiakelp beds, op-ed pieces in newspapersand pon-
tificating experts on TV. Environmentalgroups both shocking and
staid played their respective parts, throughthe dramatictheater of a
Greenpeace protest, or the staid respectabilityof the Audubon soci-
ety. Where once the idea of "TheEnvironment"(as opposed to, say,
"my lake") was a mere abstraction,something that couldn't stand
against the concrete benefits of a particularpiece of development, it
came to be an abstractionwith both the force of law and of popular
interest behind it.
To me, this brief history suggests a strategyfor the future of the
politics of intellectual property. In both environmentalprotection
and intellectual property, the very structure of the decisionmaking
process tends to produce a socially undesirableoutcome. Decisions
in a democracyare made badly when they are primarilymade by and
for the benefit of a few stakeholders,be they landownersor content
providers. It is a matter of rudimentarypolitical science analysis or
public choice theory to say that democracyfails when the gains of a
particular action can be captured by a relatively small and well-
identified group while the losses-even if larger in the aggregate-
are low-level effects spread over a larger,more inchoate group. This
effect is only intensifiedwhen the transactioncosts of identifyingand
resistingthe change are high.
An example may be helpful. Think of the costs and benefits of
power generation that produces acid rain as a by-productor, less se-
rious, but surely similarin form, the costs and benefits of retrospec-
tively increasingcopyrightterm limits on works for which the copy-
right had already expired, pulling them back out of the public
domain. In both cases, a narrow"privatepropertyanalysis"fails to
show the true costs involved. In both cases, the costs of the action
are spread out over many people, while the benefits redound mainly
to a few easily identified and well-organizedgroups. The heirs and
assigns of authors whose copyright has expired would obviously


benefit if Congresswere to put the fence back up aroundthis portion

of the intellectualcommons.56There are obviously some costs-for
example, to education and public debate-in not having multiple,
competing low-cost editions of these works. But these costs are indi-
vidually small and are not imposed on a well-defined group of stake-
There are other, more context-specificproblems. Both environ-
mental disputes and intellectual property issues are seen as
"technical;"this tends to inhibit popularparticipation. In both areas,
opposition to expansionistversions of stakeholders'rights can be off-
puttinglyportrayedas a stand againstprivate property. This is a fre-
quent claim in intellectual propertydisputes, where defenders of the
public domain are portrayed as "info-commies"or enemies of "the
free market." (The latter is a nicely ironic argumentto make in favor
of a state-licensed monopoly). Indeed, the resurgence of a non-
positivist, property-owners takings jurisprudence in the Supreme
Court seems to indicate that this idea still has great force, even in the
Beyond the failures in the decisionmakingprocess lie failures in
the way that we think about the issues. The environmental move-
ment gained much of its persuasivepower by pointing out that there
were structuralreasons that we were likely to make bad environ-
mental decisions-a legal system based on a particularnotion of what
"privateproperty"entailed, and an engineering or scientific system
that treated the world as a simple, linearly related set of causes and
effects. In both of these conceptual systems, the environment actu-
ally disappeared;there was no place for it in the analysis. Small sur-
prise, then, that we did not preserveit very well.
I have argued here that exactly the same thing is true about the
current intellectual property system and its lack of concern for the
public domain. The structureof our property rights discourse tends
to undervaluethe public domain, by failing to make actors and soci-
ety as a whole internalize the losses caused by the extension and ex-
ercise of intellectual propertyrights. The fundamentalaporia in eco-
nomic analysis of information issues, the source-blindness of an
"originalauthor"centered model of propertyrights, and the political

56. Although it is beyond me how retrospective,and even post-mortem,copyrightterm

extension is to be squaredwith the idea that intellectualpropertyrightsshould be given only
when they will stimulatethe productionof new work. Barringthe idea of soothsayingor other-
worldlycommunication,the incentiveeffects wouldseem to be small.
112 DUKE LAW JOURNAL [Vol. 47: 87

blindnessto the importanceof the public domainas a whole (not "my

lake," but "The Environment")all come together to make the public
domain disappear,first in concept and then, increasingly,in reality.
I have said all of this in an attempt to show that there is some-
thing larger going on under the realpolitikof land-grabsby Disney
and campaign contributionsby the Recording Industryof America.
But it would be an equal and opposite mistake to think that the
problems I describe here could be correctedmerely by fine-tuning a
dysfunctionaldiscourse of intellectual property. Ideas alone cannot
do the job. In this part of the analysis, too, the environmental
movement offers some useful practicalreminders. The ideas of ecol-
ogy and environmentalwelfare economics were important, but one
cannot merely write a Silent Spring or a Sand CountyAlmanac and
hope that the world will change. Environmentalistspiggybackedon
existing sources of conservationistsentiment, includingthe aesthetic
and recreational values held by hikers, campers, and birdwatchers.
They built coalitions between those who might be affected by envi-
ronmental changes. They even discovered, though very slowly, the
reality of environmentalracism.
Some of these aspects, at least, could be replicatedin the politics
of intellectual property. The coalitions developed to combat the
White Paper and its implementinglegislation offer some nice exam-
ples of the possibilitiesand pitfalls.57Other strategies also come to
mind. For environmentalproblems,some of the transactioncosts of
investigation and political action are overcome through expert
agents, both public and private. I pay my taxes to support the EPA
or my charitydollars to Greenpeace,and hope they do a good job of
trackingenvironmentalproblems. Until very recently, there was not
a single public or private organizationwith the main task of protect-
ing and preservingthe public domain.58If the environmentalanalogy
suggests anything,it is the need for a reciprocalconnection between
analysisand activism.

57. These coalitionsconsistedof a wide rangeof groupsincludinglibraries,teachers,writ-

ers, civil liberties groups,and online service providers. See Boyle, supra note 42, at 51 n.11;
TheDigitalFutureCoalitionHome Page (visitedNov. 20,1997) <>.
58. While I was writingthis Essay, the first public interest organizationdevoted to the
preservationof the publicdomainwas foundedand beganlobbyingon some of the issues men-
tioned here. See Unionfor the PublicDomainHome Page (visitedNov. 20, 1997)<http://www.>.


The idea of an information age is a useful and productive con-

cept. I have argued that there is a homologizing tendency for all
"informationissues" to collapse into each other as informationtech-
nology and the very idea of "information"move forwardin a recipro-
cal relationship. As the value of the "content" or "message" in-
creases, in comparison to the diminishing marginal cost of the
medium, intellectual property becomes increasinglyimportant. Yet
despite its astoundingeconomic importanceand its impact on every-
thing from public education to the ownership of one's own genetic
information, intellectual property has no corresponding place in
popular debate or political understanding. The belief seems to be
that information age politics means fighting censorship on the Web
To prevent the formation and rigidification of a set of rules
crafted by and for the largest intellectualpropertyholders, we need a
politics of intellectual property. Using the environmentalmovement
as an analogy, I have argued that a successful political movement
needs a set of (popularizable)analyticaltools which reveal common
interests around which political coalitions can be built. Just as "the
environment" literally disappeared as a concept in the analytical
structureof private propertyclaims, simplistic"cause and effect" sci-
ence, and markets characterizedby negative externalities,so too the
"public domain" is disappearing,both conceptually and literally, in
an intellectual property system built around the interests of the cur-
rent stakeholders and the notion of the original author. In one very
real sense, the environmentalmovement inventedthe environmentso
that farmers,consumers,hunters and birdwatcherscould all discover
themselves as environmentalists. Perhapswe need to invent the pub-
lic domain in order to call into being the coalition that might protect

59. For a path-breakingformulation,see David Lange, Recognizingthe Public Domain,

LAW& CONTEMP. PROBS.,Autumn 1981, at 147, 171-78 (illustratinghow expandingintellec-
tual propertyclaimsdisplaceindividualand collective rightsin the publicdomain). I have also
been influencedby JessicaLitman'sworkon the subject. See generallyLitman,supranote 44;
Jessica Litman,Mickey Mouse Emeritus:CharacterProtectionand the Public Domain, 11 U.
MIAMIENT. & SPORTS L. REV.429 (1994) (arguingthat the protectionsaffordedby copyright
law should not allow copyrightholders to lock up the raw materialsneeded to develop new
works);Jessica Litman,Copyrightas Myth,53 U. Prrr. L. REV.235 (1991) (discussingthe dis-
crepanciesbetween the popularperceptionand the reality of copyrightlaw); Jessica Litman,
ThePublic Domain, 39 EMORY L.J. 965 (1990) (suggestingthat the copyrightsystem would be
unworkableif it did not allow accessto the rawmaterialof authorship).
114 DUKE LAW JOURNAL [Vol. 47:87

Is the analogy between negative externalities in the environ-

mental and intellectual propertyfields of only rhetoricalor strategic
value, then? As with the environment,an economic approachis both
powerful and partial. Powerful, because economic arguments will
sometimes convince when more franklymoral appeals do not. Even
under a purely instrumentaleconomic analysis, maximalist intellec-
tual property protection has profound negative effects. Just as the
idea of market externalitiesgalvanizedand then began to dominate
environmentaldiscourse,scholarshave emphasizedthe economic in-
adequacyof currentintellectualpropertylaw.60But the attraction of
the economic analysisconceals a danger. The problemsof efficiency,
of market oligopoly and of future innovation are certainlyimportant
ones, but they are not the only problemswe face. Aldo Leopold ex-
pressed the point powerfullyand prescientlynearly fifty years ago in
a passage entitled "Substitutesfor a Land Ethic."
One basicweaknessin a conservationsystembasedwhollyon
economicmotivesis thatmostmembersof the landcommunity have
no economicvalue....
Whenone of thesenon-economic categoriesis threatened,andif
we happento love it, we inventsubterfugesto give it economicim-
portance ....
It is painfulto readthesecircumlocutions
Leopold's point is blunted,but not lost, in the context of intellec-
tual property. The very real negative economic effects of over-
protection are hardly "circumlocutions."Locking up facts under a
sui generis database right would introduce colossal economic ineffi-
ciencies into the flow of informationto markets,and inhibit research
and innovation. There are obvious economic problemswith our cur-
rent treatmentof "sources"of genetic information. Many of the pro-
posals for "reforming"copyright on the Net amount to little more
than short-sightedstate protectionismof old methods of delivering
content. Not mere circumlocutionthen. But under Leopold's gentle
chiding,I am remindedof the dangersof embracingtoo closely a lan-
guage that can express only some of the things that you care about.

60. This economic skepticismlinks works that are otherwise radicallydifferent in tone.
CompareBreyer,supranote 24, at 291-313(an early, and elegant, expressionof doubt about
the economic rationalefor copyright),with Samuelson,supra note 25, at 191 (criticizingthe
proposalsmade in the WhitePaper),and BOYLE, supranote 8, at 35-46 (discussinginformation
economicsand its role in the publicpolicyof an informationsociety).
61. LEOPOLD, supranote 52, at 210.

True, our intellectual property system would be better if we paid

more attention to the negative externalities produced by the grant
and exercise of each new property right, instead of focusing mono-
maniacallyon the problemsposed by public goods. But our concerns
with education and the distributionof wealth, with free speech and
universal access to information,can never be fully expressed in the
language of neo-classicalprice theory.
Let me conclude by dealing with two particularobjections to my
thesis. First, that my whole premise is simply wrong-that intellec-
tual property is not out of balance, the public domain is not system-
atically threatened, economic analysis is both determinate and clear
in supportingthe currentregime, the general tendency both interna-
tionally and domestically has not been towards the kind of intellec-
tual land-grab I describe, or if it has, the tendency exists for some
very good reasons. Elsewhere I have tried to refute those claims, but
to some extent the point is moot. Even if I am wrong, the basic idea
of democratic accountabilityover public disposal of extremelyvalu-
able rights would seem to demand a vastly more informed politics of
intellectual propertyin the informationage. If such accountabilityis
to exist, the public domain should be more systematicallydiscussed
and defended than has heretofore been the case.
The second objection is more fundamental. How can I compare
the politics of intellectual property to the politics of the environ-
ment? For some, the difference in seriousness of the two problems
robs the analogy of its force. After all, environmental problems
threaten the biosphere and this is just, well, intellectualproperty. My
response is partlythat this is an analogy. I am comparingthe form of
the problems rather than their seriousness. Still, I have to say I be-
lieve that part of this reaction has to do with a failure to adjust to the
importance that intellectual property has and is going to have in an
informationsociety. Again and again, one meets a belief that this is a
technical issue with no serious human,political or distributionalcon-
sequences. This belief is just silly. As I have tried to show here, our
intellectual property regime has enormous importance in terms of
distributionaljustice, free speech and public debate, market concen-
tration, scientific research, education, bio-ethics... the list goes on
and on. Intellectual property is important.Yet our decisionmaking
processes do not reflect that fact. Quite the contrary. Right now,
there is an easily described tendency in the world of intellectual
property;rights are expandingby the moment, unchecked by public
scrutinyor sophisticatedanalysis.
116 DUKE LAWJOURNAL [Vol. 47:87

The pictureis not entirelybleak. There are court and regulatory

decisions that cut againstthe protectionisttendency I have described.
Recent organizingefforts around the Net, and around issues of cul-
tural property,access to drugs,and copyrightfair use have improved
the discourse markedly. The sheer stupidity of the database treaty
had a powerfully bracing effect, baseball or no baseball. Neverthe-
less, I think that the currentsituationwarrantsa precautionaryalarm.
It would be a shame for the fundamentalproperty regime of the in-
formation economy to be constructedbehind our backs. We need a
politics-an analyticallyand rhetoricallysophisticatedpolitical econ-
omy-of intellectualproperty,and we need it now.