Who Stole the Goose?

• 10/31/03

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 alone
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.
—Anonymous

In his keynote at Syllabus2003, Duke law professor James Boyle described two radically different perspectives on copyright: the "closed" view, in which extensive legal protections purport to offer economic incentives to authorship; and the "open" view, which fosters creativity through less restrictions and greater flexibility in the laws that control access to intellectual property. Boyle points to the need for faculty, students, researchers, and others to be able to access and build on the ideas of others—especially when the original authors would wish it so.

Let me give you a little primer on copyright law. Every time you fix some piece of expression, in tangible form, you get a copyright on it. The notes you’re taking are copyrighted, the doodle on the cocktail napkin is copyrighted, the snapshot of your dog just moving out of the frame is copyrighted. All of those things are copyrighted whether you want them to be or not, regardless of whether you make the little "C" with the circle around it, or write "all rights reserved," or anything else. It’s all copyrighted the moment it’s fixed.

This is a change to the law; the law was changed in the late 1970s and fully came effective in the late 1980s. It used to be that you only got a copyright if you asked for one by saying, "copyright." You actually had to say, "I assert a copyright over it." You actually had to write the little "C." That seems to me like not such an incredible imposition—to actually say that if were going to give you a legal monopoly backed by the force of the state and the FBI and maybe 120-150 years of protection, you at least have to ask for it or at least have to say that you want it. That d'esn’t seem to me like such an incredible burden on you. You didn’t have to file anything. To be sure to enforce it you would later have to file, but just to get the right, all you’d have to do is put the little "C." Nope, we said, that’s just too much. People out there, that’s just too much to ask them to do because someone might write something and not realize they had to do that, and the poor folk would then lose their copyright; the work would pass into the public domain.

In 1976 this would all be fine because, to be sure, there were huge numbers of people producing things—notes that they had on class; their presentations that they would actually show in class; their account of what they remembered of a history course they’d taken; working notes for a manuscript; some tips on how to teach calculus to 10th graders or what have you-but none of them really existed in any way where anyone else could get access to them. They were sitting in your filing cabinets. Maybe you photocopied them and sent them to a friend, but they weren’t sitting there in any place where anyone might actually get access to them. So there was, you might imagine, a tiny island of works which copyright actually was concerned with, which were the ones being commercially published and thus being made available to others, and then a huge remainder of works which were copyrighted but they just sat in your file cabinet, so who cares? Yes, all your cocktail napkin doodles are copyrighted, but who cares.

But the world has changed since then, and it has changed because of the introduction of the Internet. The Internet is seen here not as something which produces this terrible threat of costless copying leading to piracy, but as that which makes available to me your thoughts on how to teach calculus to 10th graders; that nifty little graph that you have for showing fractionation in a distillation process; that beautiful animated GIF illustration of a molecule which is sitting on your course Web page; the nice song that you made; the photograph you took of the Civil War Memorial or the battlefield. You know the Internet; you know what’s out there and you know how much of it is potentially of use to you.

Now can you use that stuff? You might think nervously, "Wait, I’m using it all the time; I hope I can use it. I mean, it’s on the Internet, isn’t it?" To be sure, the fact that people have put material on the Internet means that it is unlikely, although not impossible, that other people will then be sued for actually looking at it. This seems kind of obvious, but sadly the legal system is not always obvious.

But what about reproducing it or changing it? What if you wanted to take that module on calculus that someone had developed in Hawaii and adapt it for your students who have a slightly different curricular background? Or what about that molecule? Maybe you like the GIF animation but you think you can tweak it to make it even better, or maybe you just want to reproduce it and put it in some materials... Can you do it? You say, "Well, I need to find the author and get permission in a legally binding document, so who’s the author? I don’t know; it’s up on this Web page of 27 different people and all their e-mail addresses are broken. How do I actually get access to this stuff?"

The tragic thing about the Internet is that our new system of copyrighting everything the moment it’s fixed, not requiring anyone to say anything, means there are vast numbers of people—and educators are the best example—producing things that they affirmatively want to share, putting them out there, and having other people say, "I just don’t know if I’m allowed to photocopy this to my class. Every time I think twice about that. Every time, I try to contact you, send you an e-mail, get your permission when you in fact never wanted to copyright the thing in the first place or at least are perfectly happy for me to reproduce it.' That is a loss, a social loss, every bit as real as the loss suffered when someone pirates a song. It’s a loss from failed sharing, a loss from failed collaboration. It d'esn’t mean we should give up on fighting the losses from piracy, but it means we should counterbalance that by [considering] other kinds of losses that are produced when we have a system so ill-tuned.

I’m involved with an organization called Creative Commons which, if you look on the Internet under Creative Commons [www.creativecommons.org], or just Google that, you’ll see what we do. We try to provide a second-best solution—and by the way this is just an example of how private individuals can try to ameliorate the situation, particularly for educators, so that those of you who are actually producing stuff that you do want other people to use can offer it to the world under the conditions that you want. Maybe you want to forbid commercial use but allow any non-commercial use. Maybe you want to say that anyone can use it in any way but your name has to be attached, or maybe you want to say that anyone can use it but only in its entirety. Or maybe you want to say you can even make derivative works; you can change it but if you do change it I want you to change it under a license at least as generous as the one as I gave you so that other people can build on it in the future. All of those possibilities exist, and you pretty much go through and pick your license. We then produce a license which is not only lawyer readable... [It] actually is explained in terms that human beings understand as well and, more interesting perhaps, machine readable so that in the future you’ll be able to go into Google or all the Web and [find] all illustrations on the history of the Eiffel Tower that are available for non-commercial use with attribution. The point is that there was a problem here and we attempted to deal with it.

Where d'es all of this leave us? I think we are really actually trembling on a cusp here... we have, academia in particular, long dominated by the values of Mertonian open science, free exchange, free speech, access, and so forth. We have on the other hand increasing pressures to close things up, to wrap things in tight technological boundaries, and we have vast numbers of new legal initiatives. What’s more, the largest defense against these new intellectual property rights up until now was popular ignorance, incomprehension, and ridicule. It used to be if someone said, "you can’t quote some fragment of what I’m saying because I copyrighted it and you can’t quote it," then people would say, "don’t be ridiculous." I’m actually worried that that tendency is being weakened as people become more and more familiar with end user licensing agreements, point-and-click restrictions, and limited institutional understandings of fair use.

Recently I was writing an article in which I quoted a 300-year-old p'em about the enclosure of the English commons, the area of arable common land which was enclosed into private plots by the state, handed over to a single landowner who it was assumed would then use it more efficiently. The p'em said, "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." Meaning that this was a little unfair that this legal intervention changed into a crime [accessing] that which had been the common property of all of us. I thought, this sounds like we’re in the middle of a second enclosure movement-and I wrote an article with that title.

In the process, as a good academic I was trying to track down the p'em, which was written by that annoying p'et Anon. and which had of course 15 or 16 spurious and impossible-to-verify provenances given on the Internet in addition to about 5 or 6 different ones in the scholarly literature. I sent an assiduous research assistant to track it down, and he found a whole lot of people who quoted the p'em. He sent e-mails to about 15 or 20 people saying, "I notice you quote this p'em and you say it dates from [and then different stories]. I just wonder, where did you find that information?" Of the 20 people he wrote to, 12 wrote back immediately saying, "I’m very sorry and I’ll take it down immediately." One institution, a newspaper, wrote back and said, "We are horrified at this and the reporter responsible has been disciplined." He wrote back to them [all] saying no, your source—meaning why did you think that it came from there. "I’m just interested, I’m not asserting any rights over it; I just want to know why you said this." Five of them wrote back saying "Look, we’ve taken it down, please don’t sue us." The assumption about inquiries in the world of scholarship is now one in which you are as likely to be asserting actual ownership as you are to be inquiring about intellectual provenance. That I actually think is a tragedy; it really is a tragedy. It is a tragedy of a lost commons—not the tragedy of the commons but the tragedy of a lost commons.

James Boyle © 2003
This article is made available by the author under a Creative Commons License.
See http://www.creativecommons.org/licenses/by-sa/1.0

Click here to listen to James Boyle's keynote given at the Syllabus2003 conference.