Reading Response #5
“The 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” Justice Brandeis, 1918 (cited in Boyle, 49)
In their respective works, authors Carla Hesse and James Boyle illustrated the social and historical foundation of intellectual property rights and laws, and in doing so, illustrated both their social construction and relative infancy. In the chapter The Second Enclosure Movement, Boyle goes into greater detail on the historical period that birthed property laws, known as the First Enclosure Movement, and translates those conditions to the property rights issues of today, which he calls the Second Enclosure Movement. Boyle touches on the similarities and dissimilarities between the movements, shining a light on some positive elements, while criticizing others. Ultimately, Boyle questions many of the outdated, inefficient intellectual property laws of today, while asserting that simply reverting to a social utilitarian method of operation would have the potential to “eat the heart out of our creative and cultural industries,” and bring on the Internet Threat (Boyle, 53.)
The First Enclosure Movement, beginning in the fifteenth century, marked the beginning of the time when the English “commons” of land was enclosed (Boyle, 43.) Formerly open for public use – or in the minds of enclosure supporters, misuse – the privatization of the commons led to “economic inequality, crime, and social dislocation,” (Boyle, 43) and was commonly considered a “revolution of the rich against the poor” (Boyle, 44.) Many farmers mourned the loss of their way of life, which fell victim to the power of organized production and market logic, and in doing so, failed to realize one major fact: that the enclosure movement worked.
The First Enclosure Movement allowed for the elimination of the “tragedies of overuse and underinvestment” (Boyle, 45,) and allowed for an increase in production capable of saving lives. The Second Enclosure Movement, that of the “enclosure of the intangible commons of the mind”(Boyle, 45,) is also hotly debated in its merits and dangers. Those who agree with the current intellectual property laws would argue that private property rights are a necessary incentive to research (Boyle, 46) and the growth of a market economy (Boyle, 47,) and create limited monopolies on information-intensive products (Boyle, 48.) However, the enclosure of the information commons on the basis of its importance in the economy has major drawbacks. By imposing limitations and restrictions on use of a variety of intellectual creations and discoveries, from drum beats to genomes, modern intellectual property rights have the potential to greatly hinder progress in the name of individual ownership.
One of the major arguments Boyd develops in his chapter on the second enclosure movement is the need for a revision of private property laws, not the dissolution of them altogether. Boyd states that when they were first invented, intellectual property laws were meant to safeguard commercial interests, and protect them from their large-scale competition (Boyd, 50.) In today’s digital society, however, Boyd believes that these same intellectual property rights are far too restricting. In an era founded on copying, remixing, and repurposing, these laws impact the public in ways that were never intended, and bring about great hindrance to intellectual and cultural progress. A great example of these restricting qualities can be seen in the film Copyright Criminals, which demonstrates the variety of ways intellectual property rights negatively impact the creativity of all genres, over many generations.
