Jamie Boyle, of the Duke Center for the Public Domain, has a new book out, The Public Domain: Enclosing the Commons of the Mind. Boyle ranks with Lessig, Benkler and Zittrain as one of the most articulate, thoughtful, funny and passionate thinkers in the global fight for free speech, open access, and a humane and sane policy on patents, trademarks and copyrights. A legal scholar who can do schtick like a stand-up comedian, Boyle is entertaining as well as informative.
I've got a copy on its way to me, but while I'm waiting, I'm delighted to discover that Jamie talked his publisher, Yale University Press, into offering the book as a free, CC-licensed download. And right there, in the preface, I'm hooked:
Each person has a different breaking point. For one of my students it
was United States Patent number 6,004,596 for a “Sealed Crustless
Sandwich.” In the curiously mangled form of English that patent law
produces, it was described this way:A sealed crustless sandwich for providing a convenient sandwich without
an outer crust which can be stored for long periods of time without a
central filling from leaking outwardly. The sandwich includes a lower
bread portion, an upper bread portion, an upper filling and a lower filling
between the lower and upper bread portions, a center filling sealed be-
tween the upper and lower fillings, and a crimped edge along an outer
perimeter of the bread portions for sealing the fillings there between. The
upper and lower fillings are preferably comprised of peanut butter and
the center filling is comprised of at least jelly. The center filling is pre-
vented from radiating outwardly into and through the bread portions
from the surrounding peanut butter.“But why does this upset you?” I asked; “you’ve seen much
worse than this.” And he had. There are patents on human genes,
on auctions, on algorithms. The U.S. Olympic Committee has an
expansive right akin to a trademark over the word “Olympic” and will not
permit gay activists to hold a “Gay Olympic Games.” The Supreme Court
sees no First Amendment problem with this. Margaret Mitchell’s estate famously tried to use copyright to prevent Gone With the Wind from being told
from a slave’s point of view. The copyright over the words you are now read-
ing will not expire until seventy years after my death; the men die young in
my family, but still you will allow me to hope that this might put it close to
the year 2100. Congress periodically considers legislative proposals that
would allow the ownership of facts. The Digital Millennium Copyright Act
gives content providers a whole array of legally protected digital fences to en-
close their work. In some cases it effectively removes the privilege of fair use.
Each day brings some new Internet horror story about the excesses of intellectual property. Some of them are even true. The list goes on and on. (By
the end of this book, I hope to have convinced you that this matters.) With
all of this going on, this enclosure movement of the mind, this locking up of
symbols and themes and facts and genes and ideas (and eventually people),
why get excited about the patenting of a peanut butter and jelly sandwich? “I
just thought that there were limits,” he said; “some things should be sacred.”
