hydrarchist writes:

"Fencing Off Ideas: Enclosure and the
Disappearance of the Public Domain"

James Boyle

The law locks up the man or woman

Who steals the goose from off the common

But leaves the greater villain loose

Who steals the common from off the goose.

The law demands that we atone

When we take things we do not own

But leaves the lords and ladies fine

Who take things that are yours and mine.

The poor and wretched don't escape

If they conspire the law to break;

This must be so but they endure

Those who conspire to make the law.

The law locks up the man or woman

Who steals the goose from off the common

And geese will still a common lack

Till they go and steal it back.

This poem is one of the pithiest condemnations of the English enclosure
movement, the process of fencing off
common land and turning it into private
property. (Although we refer to it as 'the
enclosure movement', it was actually a
series of enclosures that started in the
fifteenth century and went on, with differing means, ends, and varieties of state
involvement, until the nineteenth.) The
poem manages in a few lines to criticize
double standards, expose the artificial
and controversial nature of property
rights, and take a slap at the legitimacy
of state power. And it does it all with
humor, without jargon, and in rhyming
couplets.

Sir Thomas More went further, though
he used sheep rather than geese to make
his point. He argued that enclosure was
not merely unjust in itself, but harmful
in its consequences. It was a curse of economic inequality, crime, and social dislocation.

Your sheep that were wont to be so meek
and tame, and so small eaters, now, as I
hear say, be become so great devourers
and so wild, that they eat up, and swaIlow
down the very men themselves. They consume, destroy, and devour whole fields,
houses, and cities. For look in what parts
of the realm doth grow the finest and
therefore dearest wool, there noblemen
and gentlemen.. . leave no ground for
tillage, they enclose all into pastures; they
throw down houses ; they pluck down
towns, and leave nothing standing, but
onIy the church to be made a sheep-house.
. . .Therefore that one covetous and insatiable cormorant and very plague of his
native country may compass about and
enclose many thousand acres of ground
together within one pale or hedge, the
husbandmen be thrust out of their own.

The enclosure movement continues to
draw our attention. It offers irresistible
ironies about the two-edged sword of
?respect for property? and lessons about
the role of the state in making controversial, policy-laden decisions to define
property rights in ways that subsequently come to seem both natural and neutral.

Following in the footsteps of Thomas
More, critics have long argued that the
enclosure movement imposed devastating costs on one segment of society.
Some of these costs were brutally and
relentlessly ?material? - for example, the
conversion of crofters and freeholders
into peons, seasonal wage-laborers, or
simply, as More argued in Utopia, beggars and thieves. But other harms were
harder to classify: the loss of a form of
life, and the relentless power of market
logic to migrate to new areas, disrupting
traditional social relationships, views of
the self, and even the relationship of
human beings to the environment.

A great many economic historians
have begged to differ. As they see the
matter, the critics of enclosure have fallen prey to the worst kind of sentimentality, romanticizing a form of life that was
neither comfortable nor noble, and certainly not very egalitarian.

From an economist?s point of view, the
key fact about the enclosure movement
is that it worked: this new property
regime allowed an unparalleled expansion of productive possibilities. By transferring inefficiently managed common
land into the hands of a single owner,
enclosure averted one aptly named
?tragedy? of the commons : overuse. It
also created incentives for large-scale
investment, allowed control over
exploitation, and in general ensured that
the resource would be used efficiently.
Unless the feudal lord knew that the
fruits of his labor would be his alone, he
would not have invested in drainage
schemes, the purchase of sheep, or the
rotation of crops in order to increase the
yield of his acreage.

Strong private-property rights helped
to avoid the tragedies of both overuse
and underinvestment. As a result of the
enclosure movement, fewer Englishmen
starved: more grain was grown, and
more sheep were raised. If the price of
this social gain was a greater concentration of economic power in fewer hands
and despoliation of the environment, so
be it. Those who weep about the terrible
effects of private property should realize
that it literally saved lives. Or so say the
economic historians.

This is a debate of more than antiquarian interest, for we are in the midst of a
new kind of enclosure movement, this
one aimed at exploiting a new and intangible kind of commons - call it a ?com-
mons of the mind.?(1) Once again, things
that were formerly thought to be uncommodifiable, essentially common, or
outside the market altogether are being
turned into private possessions under a
new kind of property regime. But this
time the property in question is intangible, existing in databases, business
methods, and gene sequences.

Take the human genome as an example. The opponents of ?enclosure? have
claimed that the genome ?belongs to
everyone, ? that it is literally ?the common heritage of humankind.? They say
that the code of life ought not and perhaps in some sense cannot be owned by
an individual or a corporation. When
patents have been granted for stem cells
and gene sequences, critics have mused
darkly about the way in which the state
is simply handing over monopoly power
to private parties, potentially thwarting
future research and innovation. The new
monopolists have names like Geron,
Celera, and Human Genome Sciences,
and their holdings are in the form of
patent portfolios rather than oil wells or
steel plants.

Alongside these reports about the
beneficiaries of the new property scheme
run news stories about those who were
not so fortunate, the commoners of the
genetic enclosure. Law students across
America now read Moore v. Regents, a
California Supreme Court case deciding
that poor Mr. Moore had no property
right to a cell line derived from his
spleen. In this case, the court decided
that giving property rights to ?sources?
would make it more difficult for scientists to share cell lines with fellow researchers - reading the decision, one can
almost picture the Styrofoam coolers
criss-crossing the country by Federal
Express in an orgy of altruistic flesh
swapping. Yet this fear of the pernicidus
effects of property rights did not last for
long. In another portion of the opinion
the court speaks approvingly of the
patent granted to the doctors whose
inventive genius created a billion-dollar
cell line from Mr. Moore?s ?naturally
occurring raw material.? Like the commoners, Mr. Moore finds that his naturalistic and traditional property claims
are portrayed as impediments to innovation. Like the beneficiaries of enclosure,
the doctors are granted a property right
to encourage efficient development of a
wasted resource.

Of course, like the fist enclosure
movement, this new one has its defenders. To the question ?should there be
patents over human genes?? the answer
will be ?private property saves lives.?
Only by extending the reach of property
rights can the state guarantee the investment of time, ingenuity, and capital necessary to produce new drugs and gene
therapies. Private-property rights are a
necessary incentive to research; economists need only worry about how to allocate these rights most efficiently. Or so
say the advocates of private-property
rights.

The genome is not the only area to
have been partially ?enclosed? in the
past decade. In recent years, intellectual
property rights have been dramatically
expanded in many different fields of
human endeavor - from business-method patents to the Digital Millennium Copyright Act, from trademark
antidilution rulings to the European
Database Protection Directive.

In 1918, the American jurist Louis
Brandeis confidently claimed that ?[ t]he
general rule of law is, that the noblest of
human productions -knowledge, truths
ascertained, conceptions, and ideas -
become, after voluntary communication
to others, free as the air to common
use.? At the time that Brandeis made
that remark, intellectual property rights
were the exception rather than the rule;
it was widely agreed that ideas and facts
must always remain in the public domain. But that old consensus is now
under attack. Long-standing limits on
the reach of intellectual property - the
antierosion walls around the public
domain - are being eaten away each year.

The annual process of updating my
syllabus for a basic intellectual property
course provides a nice snapshot of what
is going on. I can wax nostalgic looking
back to a five-year-old text, with its confident list of the subject matter that
intellectual property rights couldn?t
cover, the privileges that circumscribed
the rights that did exist, the length of
time before a work fell into the public
domain. In each case, the old limits have
recently been changed or challenged.

Patents are increasingly stretched out
to cover ?ideas? that twenty years ago all
scholars would have agreed were unpatentable : the so-called business method patents, which cover such ?inventions? as auctions or accounting methods, are an obvious example. Most troubling of all are the attempts to introduce
intellectual property rights over mere
compilations of facts. If Anglo-American
intellectual property law had an article
of faith, it was that unoriginal compilations of facts would remain in the public
domain. This was ?no mere accident of a
statutory scheme,? as the Supreme
Court once put it: protecting the raw
material of science and speech is as
important to the next generation of
innovation as the intellectual property
rights themselves. The system would
offer a limited monopoly for an invention or an original expression of ideas,
but the monopoly was to be tightly confined to the layer of invention or expression. The facts below, or the ideas above,
would remain free for all to build upon.
Even the stuff that could be protected by
intellectual property - the drug or the
poem, say - was supposed to pass into
the public domain after a certain number of years. As Jefferson and Macaulay
both observed, intellectual property
rights were necessary evils. They should
be strictly limited in both time and
extent.

Today, these traditional assumptions
about intellectual property law are under
attack. Some of the challenges are subtle. In patent law, stretched interpretations of novelty and nonobviousness
allow intellectual property rights to
move closer and closer to the underlying
datalayer; gene sequence patents come
very close to being rights over a particular discovered arrangement of data - C?s,
G?s, A?s, and T?s. Other challenges are
overt; the European Database Directive
does (and the various proposed database
bills in the United States would) create
proprietary rights over compilations of
facts, often without even the carefully
framed exceptions of the copyright
scheme, such as the usefully protean category of ?fair use.?

The older strategy of intellectual property law was a ?braided? one : thread a
thin layer of intellectual property rights
around a commons of material from
which future creators would draw. Even
that thin layer of intellectual property
rights was limited so as to allow access
to the material when the private-property owner might charge too much, or just
refuse; fair use allows for parody, commentary, and criticism, and also for
?decompilation? of computer programs
so that Microsoft Word?s competitors
can reverse-engineer its features in order
to make sure that their program can convert Word files. (Those who prefer topographical metaphors might imagine a
quilted pattern of public and private
land, with legal rules specifying that certain areas - beaches,say - can never be
privately owned, and accompanying
rules giving public right of way through
private land if there is a danger that
access to the commons might otherwise
be blocked.)

From the inception of intellectual
property law in the eighteenth century
until quite recently, protection of the
public domain - the intangible com-
mons -was one fundamental goal of the
law in most nations. In the new vision of
intellectual property, however, property
rights should be established everywhere:
more is better. Expanding patentable
and copyrightable subject matter,
lengthening the copyright term, giving
legal protection to ?digital barbed wire,?
even if it is used in part to prevent fair
use : each of these can be understood as a
vote of no confidence in the productive
powers of the commons. We seem to be
shifting from Brandeis?s assumption
that the ?noblest of human productions
are free as the air to common use? to the
assumption that any human production
left open to free use is inefficient, if not
tragic.

So far I have argued that there are profound similarities between the first
enclosure movement and our contemporary expansion of intellectual property.
Today, as in the fifteenth century, proponents and opponents of enclosure are
locked in battle, hurling at each other
incommensurable claims about innovation, efficiency, traditional values, the
boundaries of the market, the saving of
lives, the loss of familiar liberties. Once
again, opposition to enclosure is portrayed as economically illiterate: the
beneficiaries of enclosure tell us that an
expansion of property rights is needed in
order to fuel progress. Indeed, the
post-Cold War ?Washington Consensus? is invoked to claim that the lesson
of history itself is that the only way one
gets growth and efficiency is through
markets: property rights, surely, are the
sine qua non of markets.

But if there are similarities between
the two enclosure movements, there are
also crucial differences. The digitized
and networked ?commons of the mind,?
circa 2002, differs greatly from the
grassy and isolated common plots of
land that dotted England circa 1400.(2)
Some of the key differences should lead
us to question whether stronger intellectual property rights are really either necessary or desirable.

For example, consider the well-known
fact that a digital text, unlike a plot of
land, can be used by countless people
simultaneously without mutual interference or destruction of the shared
resource. Unlike an earthly commons,
the commons of the mind is generally
what economists call ?nonrival.? Many
uses of land are mutually exclusive. If I
am using the field for grazing, it may
interfere with your plans to use it for
growing crops. By contrast, a gene
sequence, an MP3 file, or an image may
be used by multiple parties: my use does
not interfere with yours. To simplify a
complicated analysis, this means that
the depredations through overuse that
affect fields and fisheries are generally
not a problem with intellectual property.
(The exceptions to this statement turn
out to be fascinating; in the interest of
brevity I will ignore them entirely.)

Thus, one cause of tragedy on the
earthly commons generally does not
arise on the commons of the mind.
Overuse is normally not a problem. But
what about incentives to create the intellectual resources in the first place?

Here intellectual property, especially
in our digitized age, seems at first glance
to pose a unique problem. It has long
been relatively easy for pirates to produce unauthorized copies of poems,
novels, treatises, and musical compositions. In the language of the economists,
it has long been difficult, and in some
cases virtually impossible, to stop one
unit of an intellectual good from satisfying an infinite number of users at zero
marginal cost. A familiar conclusion
seems irresistible: without an ability to
protect their creations against theft, creators will be unable to earn an adequate
living. There wilI be inadequate incentives to create. Thus the law must step in
and create a monopoly called an intellectual property right.

This is the standard argument in favor
of intellectual property rights, but it has
recently acquired a historical dimension,
a teleology of expansion over time. After
all, in our digitized age, it is easier than
ever before for pirates to copy not just a
book, but a film, a photograph, a recorded piece of music, a drug formula, a
computer program - the list goes on.
Surely the historical lowering of copying
and transmission costs implies a corresponding need to increase the strength of
intellectual property rights.

Imagine a line. At one end sits a monk,
painstakingly transcribing Aristotle?s
Poetics. In the middle lies the Gutenberg
printing press. Three-quarters of the
way along the line is a photocopying
machine. At the end lies the Internet. At
each stage, copying costs are lowered:
Aristotle?s text becomes ever more freely
and widely accessible; indeed, the complete text is currently available in both
Greek and English to anyone with access
to the Internet (at ).

Among some analysts, the assumption
seems to be that the strength of intellectual property rights must correspond
inversely to the cost of copying. The
argument goes something like this: To
deal with the monk-copyist, we need no
intellectual property right; physical con-
trol of the manuscript is enough. To deal
with the Gutenberg press, we need the
Statute of Anne. But to deal with the
Internet, we need the Digital Millennium Copyright Act, the No Electronic
Theft Act. the Sonny Bono Copyright
Term Extension Act, perhaps even
the Collections of Information Anti-
Piracy Act. Why? As copying costs
approach zero, inteIlectual property
rights must approach perfect control.
And if a greater proportion of product
value and GNP is now in the form of
information, then obviously we have an
independent reason to need strengthened protection. A five dollar padlock
would do for a garden shed not for a
vault.

Like any attractive but misleading
argument, this one has some truth. The
Internet does lower the cost of copying
and facilitates illicit copying. The same
technology also lowers the costs of prodction, distribution. and advertising -
and dramatically increases the size of
the potential market.

Is the ?net? result, then, a loss to
rights-holders such that we need to increase protection in order to maintain a
constant level of incentives? The answer
is not self-evident.

A large, leaky market may actually
produce more revenue than a small,
tightly controlled market. What?s more,
the same technologies that allow for
cheap copying also allow for swift and
encyclopedic search engines - the best
detection device for illicit copying ever
invented. It would be impossible to say,
on the basis of the evidence we have,
that owners of protected content are
better or worse off as a result of the
Internet.

My intuition - as well as our historical
experience with prior ?dangerous? tech-
nologies such as the VCR - points
strongly to the possibility that copyright
holders are better off. In any case, there
simply isn?t enough evidence, either to
support my intuition or to support the
conclusion that as copy costs decline
intellectual property rights must be
strengthened. Furthermore, given the
known static and dynamic costs of
monopolies, and the constitutional
injunction to encourage the progress of
science and useful arts, the burden
should be on those requesting expanded
intellectual property rights to prove
their value.

Another argument commonly offered
in defense of granting new intellectual
property rights stresses the increasing
importance of products that use,
embody, or process information in
today?s global economy. Perhaps the
commons of the mind requires enclo-
sure because it is now such a vital sector
of economic activity. The importance of
agriculture to the economy was certainly
one of the arguments for the first enclosure movement. (Lovers of Patrick
O?Brian?s novels may remember Maturin?s stolid silence in the face of an
admiral?s increasingly vehement insistence that enclosure was essential to
produce the corn necessary to fight the
Napoleonic war.)

Here we come to another big differ-
ence between the commons of the mind
and the earthly commons. As has frequently been pointed out (by Jessica
Litman, Pamela Samuelson, and Richard
A. Posner, among others), information
products are frequently made out of
fragments of other information products; one person?s information output is
someone else?s information input. These
inputs may be snippets of code, discov-
eries, prior research, images, genres of
work, cultural references, databases of
single nucleotide polymorphisms - all
can function as raw material for future
innovation. And every potential increase
of protection over such products also
raises the costs of, or reduces access to,
the raw material to create new products.

The right balance is difficult to strike.
One Nobel Prize-winning economist has
claimed that it is actually impossible to
produce an ?informationally efficient?
market. (3) Whether or not it is impossible
in theory, it is surely a difficult problem
in practice. In other words, even if enclosure of the arable commons always
produced gains (itself a subject of
debate), enclosure of the information
commons clearly has some potential to
halsn intellectual innovation. More
property rights, even though they supposedly offer greater incentives, do not
necessarily ensure greater intellectual
productivity. Sometimes just the oppo-
site may be true.(4)

My arguments so far have taken as a
given the various problems to which
modern intellectual property laws have
been a response. I have discussed the
extent to which the logic of enclosure
works for the commons of the mind as
well as it did for the arable commons,
taking into account the effects of an information society and a global Internet.
Remember that when I speak of enclo-
sure, I am talking about increases in the
level of rights: protecting new subject
matter for longer periods of time, crimi-
nalizing certain technologies, making it
illegal to cut through digital fences even
if they have the effect of foreclosing previously lawful uses, and so on.

What I have not yet done is ask
whether the brute fact of the Internet
actually unsettles old assumptions and
forces us to reconsider the need for in-
centives - at least in certain areas. But
this is a question that cannot be evaded.

For anyone interested in the way that
computer networks may embody a new
mode of collaborative production, an
exemplary case to study is the open-
source software movement.(5) This software is released under a series of licens-
es, the most important being the Gen-
eral Public License, or GPL. The GPL
specifies that anyone may copy the soft-
ware, provided the license remains
attached and the ?source code? for the
software always remains available.(6)
Users may add to or modify the code,
may build on it and incorporate it into
their own work, but if they do so then
the new program created is also covered
by the GPL. Some people refer to this as
the ?viral? nature of the license; others
find the term offensive. The point, however, is that the open quality of the creative enterprise spreads; it is not simply
a donation of a program or a work to the
public domain, but a continual accretion
in which all gain the benefits of the program on pain of agreeing to give their
own additions and innovations back to
the communal project.

The open-source software movement
has produced software that either rivals
or exceeds the productive capacities of
conventional proprietary software. Its
adoption on the enterprise level is
impressive, as are the various technical
encomia to its strengths.

But the most remarkable acpect of the
open-source software movement is
harder to see. It functions as a new kind
of social system: many of those who
contribute to the movement by writing a
part of the software do so as volunteers,
without direct remuneration. Here, it
seems, we have a classic public good -
code that can be copied freely, and sold
or redistributed without paying the cre-
ator or creators.

Skeptics, of course, wonder if this
mode of production can be sustained.
There seem to be inadequate incentives
to ensure continued productivity and
innovation. Epure si muove, as Galileo is
reputed to have said in the face of Car-
dinal Bellarmine?s certainties - ?And yet
it moves.?

Still, there is no consensus about why
the system works. Perhaps the open-
source software movement is actually a
contemporary form of potlatch, in
which one gains prestige by the extravagance of the resources one ?wastes.?
Perhaps it is simply a smart way for a
young programmer to build a resume
that will eventually pay off in a conventional job. Or perhaps the movement is
driven by what Karl Marx considered an
innate aspect of our ?species-being?:
namely, the urge to create, which drives
human beings to labor out of love rather
than material need.

Like Yochai Benkler and Eben Mog-
len, I believe that such speculation is
interesting but irrelevant.(7) My own
explanation for why the system works is
this :

Assume a random distribution of
incentive structures in different people,
a global network. Assume also that the
costs of transmission, information sharing, and copying approach zero. Assume
finally a modular creation process. With
these assumptions, it just doesn?t matter
why unpaid code writers do what they
do; what matters is that a certain number of people will do what the unpaid
code writers do. One may do it for love
of the species, another in the hope of a
better job, a third for the joy of solving
puzzles, and so on. Each person also has
his or her own ?reserve price,? the point
at which he or she says ?now I will turn
off Survivor and go and create something.? But on a global network, there
are a lot of people, and with numbers
that big, and infomration-overhead that
small, even relatively hard projects will
attract a sufficient number of motivated
and skilled people to sustain the creative
process. For the whole structure to work
without large-scale centralized coordi-
nation, the creation process has to be
modular, with ?units? of different size
and complexity, each requiring slightly
different expertise, all of which can be
added together to make a grand whole. I can work on the sendmail program, you
on the search algorithms. More likely,
property lots of people try to solve the sendmail
and search algorithm problems, and
their products are judged by the commu-
nity and the best ones adopted. Under
these conditions - an ad hoc mode of
production that curiously combines
anarchism and entrepreneurialism,
Kropotkin and Adam Smith-we will get
innovation and productivity, without
having to rely on the proprietary model.

What?s more (and this is a truly fascinating twist), when the production pro-
cess does need more centralized coordination, some governance that guides
how the modular bits are most productively associated, it is at least theoretical-
ly possible that we can come up with the
control system ilt exactly the same way ;
distributed production is potentialIy
recursive. Governance processes, too,
can be assembled through distributed
methods on a global network, by people
with widely varying motivations, skills,
and reserve prices.

Again, skeptics will have their doubts.
One organization theorist I know dismisses the possibility of anarchic coordi-
nation as ?governance by food fight.?
Anyone who has ever been on an organizational listserv, or been part of a global
production process run by people who
are long on brains and short on social
skills, knows how accurate that description is. E pur si muove.

But, in the language of computer programmers, does the open-source software movement ?scale?? Can we generalize anything from this limited exam-
ple? How many types of production,
innovation, and research fit into the
model I have just described? After all,
for lots of types of innovation and invention one needs hardware, capital invest-
ment, large-scale real-world data collection, stuff - in all its facticity and infinite
recalcitrance. Maybe the open-source
model has solved the individual incentives problem, but that?s not the only i
problem. And how many types of innovation or cultural production are as
modular as software?

My own guess is that this method of
production is far more common than we
realize. ?Even before the Internet,? as
some of my students have taken to saying portentously, science, law, education,
and musical genres all developed in ways
that are markedly similar to the model I
have described. ?The marketplace of
ideas,? the continuous roiling development in thought and norm that our
political culture spawns, is itself an idea
that owes much more to the distributed,
nonproprietary model than it does to the
special case of cornmodified innovation
that we regulate through intellectual
property law. It?s not that copyright and
patent haven?t helped polver the rise of
modern civilization ; it?s just that it
would be wrong to see them as the only
engine of innovation. Indeed, the mot-
toes of free software development have
their counterparts in the theory of
democracy and the open society. The
open-source movement describes its
advantage over closed and secretive systems concisely: ?given enough eyeballs,
all bugs are shallow. ? Karl Popper would
have cheered.

Furthermore, I suspect that the in-
creasing migration of the sciences to-
ward data-rich, processing-rich models
will make it likely that a greater amount
of innovation and discovery could follow the distributed. nonproprietary
model of intellectual production. Bio-informatics and computational biology,
the open-source genomic project at
www.ensembl.org. the possibility of distributed data scrutiny by volunteers
that NASA used on the Mars landing
data- all of these offer intriguing
glances of a possible future. And finally,
of course, the Internet is one big experi-
ment in distributed cultural production.

My own utopia would include modes
of nonproprietary intellectual production flourishing alongside a scaled-down
but still powerful intellectual property
regime. Of course, my utopia hinges on
a hunch about the future. Still, there is
some possibility (I might say hope) that
we could have a world in which much
more intellectual production is free -
?free? meaning that it is not subject to
centralized control, and ?free? meaning
that its products are available without
payment. Insofar as this is at least a possi-
ble future, then surely we should think
twice before foreclosing it.

Yet foreclosing this possibility is precisely what lawmakers and government
regulators in America are now doing.
The point about the dramatic recent
expansion of intellectual property
rights -in database protection bills and
directives that extend intellectual property rights to the layer of facts, in the
efflorescence of software patents, in the
validation of shrink-wrap licenses that
bind third parties, in the Digital Millen-
nium Copyright Act?s anticircumvention provisions - is not merely that they
hamper the nonproprietary mode of
intellectual production unfairly and
without justification. The point is rather
that they run the risk of ruling it out
altogether.(8)

We have come full circle. As I have
shown, we are in many ways in the
midst of a second enclosure movement.
The opponents and proponents of
enclosure are currently locked in battle,
each appealing to conflicting and sometimes incommensurable claims about
efficiency, innovation, justice, and the
limits of the market.

But should there be a second enclosure
movement? Do we know that property
rights in this sphere will yield the same
surge of productive energy that they did
when applied to arable land?

I think the answer is a resounding No.
We are rushing to fence in ever-larger
stretches of the commons of the mind
without convincing economic evidence
that enclosure will help either productivity or innovation - and with very
good reason to believe it may actually
hurt them.(9)

As I have argued elsewhere, this
process should bother people across the
ideological spectrum, from civil libertarians to free marketeers. Researchers and
scientists should be particularly worried
by what is happening. Up to now, the
American system of science, for all its
flaws, has worked astoundingly well:
changing some of its fundamental premises, such as by moving property rights
into the data layer, is not something to
be done lightly.

The dangers are particularly acute at
the moment for three reasons. First,
under the conditions that currently
obtain in our digitized commons of the
mind, the creation of new intellectual
property rights tends, in a vicious circle,
to create still further demands for new?
intellectual property rights. The argument is a little too complicated to lay out here (10).