Property and the Public Domain

Abstract

Friends 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.