Staking Claims in Cyberspace

This summer produced a career milestone for James D. Boyle, William Neal Reynolds Professor at Duke Law School. Boyle received the annual World Technology Award in Law for his work on the theory and practice of protecting the "intellectual ecology" of the public domain--the ideas and expressions that are free for all to use or build upon.

Instituted in 2000, the awards are sponsored by a range of organizations, including the American Association for the Advancement of Science; NASDAQ; Microsoft; and Time, Science, and Technology Review magazines. They honor especially innovative individuals and corporations for work of technological significance.

Boyle came to Duke Law in 2000. A leading legal theorist and social critic who has written in a wide range of areas, he produced "some of the most coherent work done in the 1980s on a body of thought called Critical Legal Studies," says Katharine Bartlett, law-school dean. "He is a well-known interdisciplinary scholar whose work draws not only on law and legal theory, but also literature, philosophy, political thought, and even computer science."

In articles and books since his 1992 Theory of Law and Information, Boyle has argued that we have a number of crucial blind spots in the way we understand information and intellectual property. His book Shamans, Software, and Spleens focused on the way that our ideas about original creation neglect the importance of accessing and building upon existing creative works. Foucault in Cyberspace argued that we make too many policy decisions about the Internet by entrusting issues to a combination of technology and private enforcement, both of which are immune from public scrutiny. A Politics of Intellectual Property analogized our current politics of intellectual property to the environmental politics of the 1940s and argued that we need to learn from the theoretical and organizational innovations of the environmental movement.

Beyond his theoretical work, Boyle has helped to found or to advise several organizations dealing with intellectual-property issues, including Creative Commons, Duke's Center for the Study of the Public Domain, and Public Knowledge. Before coming to Duke, Boyle taught at Yale, Harvard, the University of Pennsylvania, and American University, where he received the faculty award for outstanding scholarship and research.

In the second annual Duke Magazine Campus Forum, Boyle had a public conversation with Adrienne Davis, professor of

law at the University of North Carolina at Chapel Hill. Davis is a frequent commentator on controversial issues of private law, property, and social power. The following is adapted from the conversation.

On how he became interested in issues of intellectual property

I've known Professor Boyle for a long time, and he has been a real force in legal theory, interpretation, and the politics of law, including incisive critiques of the lines we try to draw between public and private law. But about ten years ago, he started doing this intellectual tinkering with the Internet and cyberspace. I remember thinking, "What are you doing? Is this a new direction?" Can you tell us something about some of the early cases or conflicts that got you thinking about these issues?

Well, you are right that it was actually a set of conflicts and cases that got me to focus on this area. I was writing an article about law and the information society--the regulation of information transfers in everything from insider trading to blackmail. This led me, inevitably, to the world of intellectual property and the lines between it and the rest of our legal traditions, such as free speech or privacy. Some of the cases drawing those lines were astounding.

If I had to pick one that drew my attention, it would be San Francisco Arts and Athletics Association v. the United States Olympic Committee. Congress, in its wisdom, had decided that the USOC needed to be able to control the use of its symbols. But they decided to give it much more than a trademark over the five rings. They passed a law that effectively said, "You, the USOC, control the word 'Olympic.' And no one can use it in any commercial or even non-commercial fundraising context without your permission."

To me, the non-commercial side of that law seemed like an obvious violation of the First Amendment: "Congress shall make no law abridging the freedom of speech." Yet Congress is saying you can't use the word "Olympic" unless the USOC gives permission? The San Francisco Arts and Athletics Association, which was an association of gay athletes, wanted to hold a Gay Olympic Games--partly in order to make a political point and partly to undermine a series of anti-gay stereotypes. The USOC sent them a cease-and-desist letter. Understandably, the SFAA did not think that the Constitution allowed the Federal government to pass a law controlling the use of a general word like "Olympic." Certainly they could stop people selling T-shirts that purported to be from "the Olympics," or using the interlinked circles that form the logo. But to stop gay athletes calling their games "the Gay Olympics"? Interestingly, the USOC had given other people permission to use it--the Special Olympics, for example. But when it came to the Gay Olympics, obviously believing that nothing was more foreign to the traditions of ancient Greece than homosexuality, they said, "No, this is where the line must be drawn!"

The SFAA went to the Supreme Court and said, "This is a violation of the First Amendment." And the Supreme Court said, effectively, "No, it's not. This is a matter of property. The USOC is not censoring you. It's just not allowing you to use this word that it controls."

The case fascinated me, because it seemed to suggest that, when you got into the domain of property, you were in a place where the normal rules of constitutional law disappeared. You could say to someone, "I own the word Olympic, and you can't use it." Could you own the word "Democrat"? Could Congress say that "The Democratic Party has managed to give the word 'Democrat' very positive connotations; in order to support their work in the future, we hereby decree that no one may use it without their permission"? On the logic of this case, why not? One of the things the case illustrates, something, as you suggested, that has become central to my research, is that free-speech issues have been made invisible, because we've called them property issues.

Conversations: Davis, left, interviews Boyle. Photos: Les Todd

[A member of the audience asks:] I had a question about the tension between free speech and property rights. Suppose I wanted to start a team called the Duke Blue Devils. How would you write laws to disallow that?

Well, what we want to do is make sure that you can't sell tickets to see the "Duke Blue Devils" when those are really just a bunch of your friends and not the people who play in Cameron Indoor Stadium. And we already have laws that do that. But I don't think that means that any fan who wants to call themselves a "Blue Devil" needs to pay a royalty to, or get permission from, the university--still less anyone who uses the word "blue" or "devil" or "duke." In trademark law, for example, a soap company only controls the word "dove" as applied to Dove the soap. That trademark is not infringed by the people who make Dove the ice cream bar, because it's a separate product. You don't own the word "dove," you own Dove as a symbol for soap. In general, you could only control other people's use of a symbol if it was a commercial use, attached to a good that was confusingly similar.

But now the law is losing its intellectual limitations and becoming just another general property right, like ownership of land--as though owning "Olympic" or "Democrat" were the same as owning a farm.

But, really, it is unfair to focus on trademark. What I am interested in is the general blindness to the importance of the limits on intellectual-property rights, blindness to the importance of the realm of material that is not owned or is not controlled.

On the basis for intellectual-property laws

Can you say a little bit more about why we even have intellectual property? About what it's supposed to be--the incentive it's supposed to be giving to people?

The idea behind intellectual property is that we may need to give creators a limited right to exclude others from innovations that are expensive to make but cheap to copy. Because the creator can exclude you, he can make you pay to come in--make you pay to read the book, get the drug. The idea is to give just enough of a legal monopoly to encourage people to produce the next book, the next drug, the next Post-it note. This is a fabulous idea. It allows us to have a decentralized system for the production of culture and innovation. On the other hand, if you make the monopolies too big, too long, too sweeping, you end up discouraging the very innovation you wanted to encourage. The next innovator can't get access to the raw materials she needs. The jazz musician or collage artist or satirist is forbidden to refer to the prior works that form the basis for his new piece. It's the balance between protection and freedom that is vital.

On an unsuccessful challenge to the Copyright Term Extension Act of 1998

If someone were taking notes here, the copyright in those notes would last for seventy years after the death of the author. That's courtesy of Eldred v. Ashcroft, a landmark case decided last January in which the Supreme Court upheld an extension of the term of a copyright from fifty years to seventy years. Some of my Duke colleagues and I worked on an amicus curiae brief arguing against the extension.

When copyright was initiated in the United States, its term was fourteen years. Now, it could be 120 years, 150 years--this is a healthy looking audience--it depends how long you're all going to live. Congress has kept on extending copyrights, even for works that have already been created. They've done this despite the fact that the Constitution says Congress can only secure exclusive rights to authors and inventors for "limited times." And because they are extending existing copyrights, they are frequently extending the term for dead authors, presumably expecting a surge of creativity from Hollywood's graveyards. This is a little strange, because the clause says Congress can only do it in order to encourage the progress of science and the useful arts. It's hard to see how extension is encouraging the creation of a work that already exists and whose author is dead. Copyright has an enormously valuable role to play in encouraging a vibrant cultural marketplace. But when you are extending terms again and again over works that have already been created, it's hard to avoid the conclusion that it's just a form of corporate welfare.

What was interesting about Eldred v. Ashcroft, which challenged copyright term extension, was the way the court dismissed the free-speech issue. In fact they did not seem to see a free-speech issue in the case. But how can that be true? For an extra twenty years, you are forbidden to make a collage out of that picture, to make a new arrangement of that song, to edit a new abridgement of that book. These are all classic First Amendment activities. Our copyright laws have been extended so often that now hardly anything enters the public domain. We have taken almost all of twentieth-century culture--every book or movie or photo or poem--and locked it up for another twenty years, when we know this has nothing to do with incentives. So if locking up most of twentieth-century culture, so that we cannot treat it the way we treat Shakespeare or Mozart, so that we can't add to it, modify it for different audiences, reprint a cheap edition for poor kids--if that is not a law that implicates the freedom of speech, it's hard for me to know what is.

On digital libertarians and the Internet as a mechanism for global surveillance

What is the role of the Internet in all this?

What you're describing is a big cloak of state regulation. But I remember when the "digital libertarians," as you called them, trumpeted the Internet as the end of the state. I want to read a passage from one of your articles describing their views: "The clumsy fingers of the leviathan cannot hold back the liquid flows of information; the sword's swing arrives too late; the parties have already relocated to another jurisdiction, hidden themselves with cryptography or 'anonymous remailers,' or simply vanished into the digital murk." Aren't the digital libertarians right?

The "digital libertarians" really thought that the Internet would mean the withering away of the state. The nature of the technology meant that state power couldn't be exercised. I think that view is wrong. In particular, it underestimates our ability to change both the technology and the way that law affects it. This is a point the eminent legal scholar Larry Lessig has also made. The Internet is not a fixed entity. Right now, we associate it with relative anonymity, with relative lack of control. We think of it as a "technology of freedom"--sometimes good freedom and sometimes bad. But all of that is changing.

In the proposals that are being put forward right now, the Internet is actually seen as a technology of control, rather than as a technology of freedom. Our image of the Internet--anonymous, decentralized--could actually be inverted so that it becomes a global mechanism of surveillance. That possibility seems about as real or unreal as the anarchist one. As for the connection to my work on intellectual property? Well, what is the impetus for these changes, for the idea that each computer should have a unique identifier, that it should be impossible for me to read your e-books on my computer, or for you to play that song without the record company knowing about it? The answer is that these proposals come from the so-called "content companies," the record industry, film industry, and so on, who have always seen the free side of the Internet as a bug rather than a feature.

Now, it's possible that, in the end, as a society, we might want greater controls, greater filtering, less anonymity, that we might want lots of Little Brothers in cyberspace. But if we want that, if we choose to change the characteristics of our communications media--and I think we shouldn't--it should be only after a sustained national conversation about freedom and security and competition and terrorism and civil liberties.

Stepping back for a moment, if you put together all of the things we have talked about today, what's the problem? I think it is in the multiple blindnesses involved. First, you take some of the issues that are actually free-speech issues and re-describe them as property issues; the restraints on speech become invisible, as if the state were not involved in writing those rules in the first place. Then, you make a lot of the regulation dissolve into the technical level, so you don't realize you're being regulated. It just turns out you can't do what you want to do because the DVD won't let you or your computer won't let you and it would be a crime, literally, to try to change its settings. Again, the regulation is invisible.

Then, finally, there is the idea of using private bodies to regulate. The state does not always have to regulate citizens directly. It can make private parties--universities or Internet-service providers, say--liable for policing the individuals who use their services, and then rely on the private parties to regulate behavior. Again the role of the state, and the political choices involved, are much less obvious, harder to criticize. These turn out to be three really effective ways of regulating cyberspace.

Let's be clear. A lot of those forms of regulation might be completely justified. The worrying thing is that, in each of the areas I have described, we are not having an adequate democratic debate about the central and serious issues of free speech, competition, and the future of our communications infrastructure. Invisibility is a handicap if one is trying to have a serious national discussion about principle and policy.

On the "commons of the mind"

A lot of what you've been working on in the last couple of years is this question of public space. You said that part of what we see in the debate is that the public domain, the "commons of the mind," is disappearing both literally and conceptually. What is the "commons of the mind"? Why should we care about it?

The whole point of intellectual property was that it was to be this very thin layer of property wrapped around a very thick layer of public stuff that no one could own, and on which everyone could build.

You can own the particular sequence of words that you write down in a book, but you can't own the facts you're reporting on. "Archduke Ferdinand was assassinated today"--you can't own that. You can't own the value of pi. You can't own the idea that "freedom is good." You can't own facts. You can't own ideas. You can own a thin layer of expression and invention--the realm that lies between facts on the one hand, and ideas on the other. And, even in the realm of invention or expression, after a while the intellectual-property rights would expire, and the books and patents would go back into the public domain. My point has been that we have gradually become fixated on the property side of things, and have forgotten the value of the other realm.

So, why should people care? About four years ago, I was teaching at Yale, and I was doing some research one night on the Internet. And my eight-year-old son came in and said, "What are you doing?" I was on the Library of Congress catalogue. I was looking for this book that was written in the 1930s, of interest only to a few people like me, by an obscure economist from Wisconsin. And I wasn't sure if the one I had found was the right one. So my son said, "Well, why don't you just click on it?" He reached over my shoulder and clicked on the title--more bibliographic information came up. He was puzzled. He said, "Where do you click to get the book?" I said, "Well, you can't click to get the book." "Why not?" he asked, because in his experience on the Internet, when you click on something, you get it. I said, "Because it's copyrighted." He asked whether anyone was publishing it now. I had to tell him that it was out of print. He wanted to know whether the person who wrote it was alive. The answer to that, too, was no. He asked whether anyone was interested in selling this book. Again, no. "So, why can't you click to get the book?" he asked. I said, "It just doesn't work that way." I said, "Go to bed."

But think about his question for a moment. The Library of Congress has all this wonderful material in it. It's a vast, wonderful pudding of books and songs and pictures and old movies. Maybe, about a raisin's worth of that pudding is still being exploited commercially. Ninety-eight or -nine percent of works exhaust all of their commercial value in the first five to six years. But we lock them up for another hundred years.

We're locking up this whole beautiful pudding of books and songs and movies in order to protect a tiny raisin inside it. That is so incredibly inefficient. It's not that I'm against protecting expression with property rights. I think it's a great idea. In fact, I would rather give the people who are still commercially exploiting their books and movies and songs three times as much money as they're currently getting, provided that we get access to all the rest of the stuff free. It seems literally insane to deny access to books no one is publishing and movies no one is showing--they're just sitting rotting in a can or on a shelf somewhere. We should be able to work out a world in which you can click to get the old, out-of-print book, and still protect Harry Potter with intellectual-property rights. But we haven't. It seems to me, there is a loss we should care about here--the loss of the public domain.

On the need to bring back the "opposite of property"

There's a bigger issue here, something we have lost sight of. I can't find any better name for it than the "opposite of property." We understand the importance of property very well. If you own something, you'll take care of it. You'll have incentives to invest in it. This is the argument for property: You'll take care of your field; you'll look after your book. And all of this is true. Yet, there's also a value to the opposite of property--the outside of property, the stuff that anyone can use without permission.

I can talk to you in English, and you can respond without paying a licensing fee to anyone. We don't need to say, "Are you licensed to use English version 4.0?" "I'm sorry, I run English version 5.0." That's a commons. That language is a commons, and it's an extraordinarily valuable commons. It's something we share that allows us to communicate. No one owns it; everyone can use it. So, that's the idea: Resources can be used without permission, without fee--ideas, facts, linguistic forms, genres, the twelve-bar blues, the boy-meets-girl story, E=mc². We have to have a balance between that and the stuff we lock up. But, right now, we seem to have forgotten the balance. We have made invisible the commons, the outside, the public domain--the opposite of property.

On saving intellectual property

Are you a dot communist? In other words, are you inherently skeptical of property rights, and do you see all these cyber issues just as one more point toward why we shouldn't have property at all?

No, I actually think I am one of the last defenders of intellectual property. If you take the very valid function of intellectual property, which is to encourage people to produce new stuff--new books, new songs, new drugs--and you apply these "legal steroids" to it, so that it just bloats and grows and gets bigger and bigger without constraint, two things are going to happen.

One is, people are going to lose all respect for it. The other is that you're actually going to end up impeding the very process of creativity that you were trying to encourage. Here is a silly example. A lot of filmmakers have to be incredibly careful that they never film anything that might have any intellectual-property rights over it. My colleague Neil Netanel told me a story about a great documentary on opera from the stagehands' perspective by John Else. It's called Sing Faster: The Stagehands' Ring Cycle. During one scene, Brunhilde is dying up above, interminably. Down below, the stagehands are engaged in their little game of cards; above their heads, a TV is playing a little snippet from The Simpsons. It's a lovely little pop-culture moment. And it lasts for about four seconds. To make the movie, Else had to "clear the rights" to that sequence. He went to Fox TV. They said, "That's fine. It'll cost you $10,000." He said, "No, no, no. I don't want to put on The Simpsons. I just want to show three, out-of-focus seconds of Homer Simpson in the background." "Yeah, ten thousand dollars."

As it ended up, he actually had to edit it out. It's hard for me to see this as intellectual property fulfilling its role of encouraging people to create new works. It actually sounds more like a set of obstacles. What I want to do is not end intellectual property, but save it. Keep it as something people respect, something that is obviously valuable, not something that people associate only with pointless bureaucracy, snooping, and unnecessary controls.

On the politics of intellectual property

You've said that the process of restating political issues as intellectual-property issues produces "anesthetic effects," legally and politically. In your current work, you're talking about the need for us to develop the "politics of intellectual property." You've analogized it to the politics of environmentalism of the Fifties and the Sixties. What do you mean?

I make the analogy to environmentalism, because, as I started working on this ten or twelve years ago, it seemed like an overwhelming task. Even intellectual-property professors sometimes didn't see that there was an issue. Certainly, when I talked to people around the country in different fields, they had never thought about the public domain, even though it (and its benefits) was all around them. And I thought, Well, who has dealt with something like this successfully? Who has made visible something that was previously concealed? The answer is, the environmentalists.

The environmentalist movement convinced groups that appear totally separate, even opposed--the bird watcher and the duck hunter, say--that they had something in common. Actually, now hunters' groups are among the biggest to support protecting wetlands. That's remarkable. Political scientists talk about "interests" as though these are something issued to you at birth. But interests are something that human beings make up, something we create through social construction in the world.

The environmentalists made people realize that they had a common interest in a thing called "the environment," something that had been invisible before. Similarly, those of us who work in this area are trying to convince programmers, scientists, musicians, artists, authors, researchers, scholars, educators, that they have an interest in the public domain. One of the great things about legal academia is engaging with ideas that actually matter. It's a wonderful combination of intellectual fascination and practical importance. At Duke I am fortunate enough to have colleagues--David Lange and Jerry Reichman in particular--who have literally set the terms for this debate over the last twenty years. And one of the things that we've been trying to do is to reframe the way the world thinks about intellectual property--actually to "create" a notion of a public domain, the same way the environmentalists "created" the environment. To make visible the invisible...