James Boyle's "The Public Domain" -- a brilliant copyfighter's latest book, from a law prof who writes like a comedian

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.”

The Public Domain: Enclosing the Commons of the Mind, Download The Public Domain, The Public Domain on Amazon


  1. The extension of copyright/patent beyond reasonable limits is a tyranny of the Legislature over the human mind itself, by seeking to control the products thereof. (More banally: let’s “ring-fence” anything, which in any way, may make money, if we can describe it in the twisted language of Patent or otherwise claim “originality”…)
    Big business and the US Congress are attempting to make thoughtcrime a reality.
    I guess voluntary censorship ain’t enough.

  2. hey this is far ot but still…I see just now via BBC that there has been another mass whale beaching, last week NZ this weel Oz.
    The US Supreme Court gave the US Navy a narrow decision allowing it to test sonar over environmental objections about two weeks ago IIRC.
    Sorry I had to post about these beachings, coming so close after the USSC’s thumbs up to the Navy tests. I am suspicious…

  3. I hate PDFs. They take too bloody long to load, and every time I scroll down it had to reload and it takes like a whole minute for it to finish – so if I’m scrolling down looking for something I always end up scrolling way past the page, because the reaction time is just that bad. And I hate how you can’t easily copy stuff from PDFs, and how copying inveitably means killing all the formatting so that it turns into a great big lump of undifferentiated text.

    I mean, who needs pretty graphic thingies? Srsly.

  4. Cory, u haz abandoned us!

    Can’t you come home and fight for Canada? (and by extension, the U.S.A.)

    Is the UK really any better about these things?

    Your Canadian heritage has arguably made you the copyfighter you are, and you are in a unique position to challenge authority, as a minor celebrity — I bet the only person taking you on would be Ted Rogers himself!

    You quote Geist, etc. but would you be willing to tell the CRTC how you feel? Maybe for a giller prize?

  5. Sojourner Strange, you can also read it online in HTML – there’s a link on the page.

    I’m on Chapter 7. It’s engrossing, and very well written. Thanks for posting this, Cory. Oh, and I second #5’s motion. ;)

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