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Introduction: Property and Language, or, the Ghost of the Fifth PanelIt is gratifying, hugely flattering, and at the same time somewhat embarrassing to have to open a conference and then a symposium issue on one's own academic work. No doubt understanding this embarrassment, my colleague and good friend Ian Ayres suggested a way out: since the conference was named "The Properties of Carol Rose," I should take the occasion to talk about the various residences I have owned. A great idea, and I did indeed think about it, because as Ian knows, I have had good luck in that dimension, with more than my share of weird and interesting addresses. But as intriguing as Ian's idea would have been, there was really another topic altogether that I thought I should address at the opening of the conference and now this symposium issue. That topic is the Missing Fifth Panel, or as I will sometimes call it in this Introduction, the Ghost Panel.
The Rose Theorem?Law resists theorems. We have hypotheses, typologies, heuristics, and conundrums. But, until now, only one plausible theorem - and that we borrowed from economics. Could there be a second, the Rose Theorem? Any theorem must generalize, be falsifiable, and have predictive power. Law's theorems, however, seem to require three additional qualities: they emerge from tales of ordinary stuff; are named for, not by, their creators; and have no single authoritative form. For example, Ronald Coase wrote of ranchers and farmers. He has always shied away from the Theorem project. When later scholars formalized his parable, they created multiple and inconsistent versions. Likewise, Carol Rose writes rich narratives of maypoles and foxes, rivers and roman roads. She offers a theory of human motivation and predictions about our behavior. And we may ask, though she might not, whether the rich alluvial mud of her scholarship crystallizes into a Rose Theorem.
Oysters, Ecosystems, and PersuasionIn his essay on the commons scholarship of Carol Rose, Michael Heller deploys an epoch-spanning synopsis of Western society's passion for the oyster to make his case for a Rose theorem. Professor Heller posits that the work of Carol Rose sets out a testable theory: law emerges from and is shaped by the interactions of human culture with nature and natural resources. The oyster's survival across the ages, he suggests, is due to this process, a "constantly shifting matrix of strategies, simultaneously public and private, individual and community, and on their constant renegotiation and interpolation." Professor Heller's is indeed an engaging account, and he is certainly correct that the oyster's story challenges the neoclassical economic account of the evolution of property rights. But as an account of what the oyster's story contributes to our ideas about common resources, it is incomplete. And Heller surely has not gone far enough in looking at the scholarship of Carol Rose from the point of view of the oyster. By failing to bring the story into the twenty-first century, Heller misses most of what the oyster's story tells us about human institutions.
Re-crafting a Public DomainThere is a public domain, but it is small, relative to its history, and it is shrinking. Digital technology will only speed its decline. And because most are oblivious to the particular threat that digital technology poses for the public domain, the prospects for reversing this trend are not promising. On the present path, the idea of the public domain will be as familiar to our children as the intergovernmental tax immunity doctrine is to our students. This loss of the public domain, properly understood, will be a profound loss for freedom and culture, or more precisely, free culture. It will also be persistent. For the mechanisms that will effect the elimination of this domain are not merely legal doctrines. The mechanisms are machines protected by the most powerful (if delicate) technologies of control that man has devised. My aim in this essay is to frame a way of talking about this public domain, and to map a strategy for its defense. The defense will come both from rebuilding the public domain, properly understood, and from crafting an "effective" public domain-meaning a free space that functions as a public domain, even though the resources that constitute it are not properly within the public domain.
Property and the Public DomainFriends of the public domain are typically suspicious of property-talk. Property is perceived as the foe, epitomizing the threat of a shrinking public domain. This common view is misguided; it is also unfortunate. It is misguided because the cleavage between property discourse and a thriving public domain is largely illusory. It is unfortunate because the concept of property has enormous rhetorical power in shaping people's expectations and therefore in the construction of what they deem normal, obvious, and thus clearly justified. For both reasons, friends of the public domain should embrace property, rather than fight it. Lawrence Lessig's work epitomizes the suspicion of public domain advocates towards property. In Re-crafting a Public Domain Lessig laments the expanding rights of copyright holders to preclude others from using cultural artifacts and offers strategies for reversing the tide. Lessig claims that once classified as property, copyright is burdened by "the ordinary view about property" which is "binary at its core." He believes that notwithstanding lawyers' understanding of property as a bundle of rights, the propertization of creative activity facilitates a social ecology in which you must secure permission before your use. This ecology (alongside the powerful interest groups supporting it) accounts for Lessig's pessimism about the possibility of a happy legal reform. It also explains his apologetic response to critics of the attempt to encourage authors to opt into a system where only some of the rights copyright secures are typically reserved. Neither the pessimism nor the apologia is warranted. Nothing in the language of property necessarily invites the agenda of the content industry. Quite the contrary: the form, the substance, and the history of property convey lessons that are rather helpful to the goal, which I share, of re-crafting the public domain. By neglecting these lessons, guardians of the public domain allow copyright expansionists to capture the powerful brand-name of property, thus undermining their very own cause.