James Boyle: An Environmentalism for Information
James Boyle of Duke Law School talks about copyright and the public domain on a CBC Spark podcast.
I always like the moment in my intellectual property class where we get to the video tape Supreme Court cases, the Sony Betamax [case]. For many of my students, I have to actually explain to them what a VCR was. It really makes you feel old. …
The movie industry in the U.S. saw this new technology, a technology of reproduction, just like the Internet, and they said: This will destroy our business model. Jack Valenti, the head of the Motion Picture Association of America, said that the VCR, actually the Sony Betamax, is to the movie industry as the Boston Strangler is to a woman alone. They really fought the VCR, and they lost. The Supreme Court said: This is fair use. …
And within five years, more than 50 percent of the movie companies’ revenues are coming from video tape rentals. The technology they tried to suppress or kill or tax out of existence ended up actually saving them. They saw the costs of the new technology; they didn’t see the benefits. And that’s one of the few counter-examples that we have because they usually win. …
Business models can change. … There’s a fine line between protecting your intellectual property rights and arguing that different ways of doing business should be illegal, which is what they often slip into. It’s a bit like the folks who whale oil for lamps control over the emerging electric light industry. They would have said, “Oh, this looks bad to us!” But we don’t let them control the evolution of technology.
Here is an excerpt from James Boyle's recent book, The Public Domain: Enclosing the Commons of the Mind. This comes from the concluding chapter, “An Environmentalism for Information.”
I have argued that in a number of respects, the politics of intellectual property and the public domain is at the stage that the American environmental movement was at in the 1950s. In 1950, there were people who cared strongly about issues we would now identify as “environmental” – supporters of the park system and birdwatchers, but also hunters and those who disdained chemical pesticides in growing their foods. In the world of intellectual property, we have start-up software engineers, libraries, appropriationist artists, parodists, biographers, and biotech researchers.
In the 50s and 60s, we had flurries of outrage over particular crises – burning rivers, oil spills, dreadful smog. In the world of intellectual property, we have the kind of stories I have tried to tell here. Lacking, however, is a general framework, a perception of common interest in apparently disparate situations.Crudely speaking, the environmental movement was deeply influenced by two basic analytical frameworks. The first was the idea of ecology: the fragile, complex, and unpredictable interconnections between living systems. The second was the idea of welfare economics — the ways in which markets can fail to make activities internalize their full costs.
The combination of the two ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make activities internalize their own costs, particularly their own environmental costs. This failure would, routinely, disrupt or destroy fragile ecological systems, with unpredictable, ugly, dangerous, and possibly irreparable consequences. These two types of analysis pointed to a general interest in environmental protection and thus helped to build a large constituency which supported governmental efforts to that end. …
Of course, it would be silly to think that environmental policy was fueled only by ideas rather than more immediate desires. As William Ruckelshaus put it, “With air pollution 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.” …
Despite the importance of these other factors, the ideas I mentioned – ecology and welfare economics – were extremely important for the environmental movement. They helped to provide its agenda, its rhetoric, and the perception of common interest underneath its coalition politics.
Even more interestingly, for my purposes, those ideas – which began as inaccessible scientific or economic concepts, far from popular discourse – were brought into the mainstream of American politics. This did not happen easily or automatically. Popularizing complicated ideas is hard work. There were popular books, television discussions, documentaries on Love Canal or the California kelp beds, op-ed pieces in newspapers, and pontificating experts on TV.
Environmental groups both shocking and staid played their part, through the dramatic theater of a Greenpeace protest or the tweedy respectability of the Audubon Society. Where once the idea of “the Environment” (as opposed to “my lake,” say) was seen as a mere abstraction, something that couldn’t stand against the concrete benefits brought by a particular piece of development, it came to be an abstraction with both the force of law and of popular interest behind it.
The environmental movement gained much of its persuasive power by pointing out that for structural reasons we were likely to make bad environmental decisions: a legal system based on a particular notion of what “private property” 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 actually disappeared; there was no place for it in the analysis. Small surprise, then, that we did not preserve it very well.
I have argued that the same is true about the public domain. The confusions against which the Jefferson Warning cautions, the source-blindness of a model of property rights centered on an “original author,” and the political blindness to the importance of the public domain as a whole (not “my lake,” but “the Environment”), all come together to make the public domain disappear, first in concept and then, increasingly, as a reality. To end this process we need a cultural environmentalism, an environmentalism of the mind, and over the last ten years we have actually begun to build one.
