Books: November-December 2009

November 30, 2009


The Public Domain: Enclosing the Commons of the MindThe Public Domain: Enclosing the Commons of the Mind
By James Boyle.
Yale University Press, 2008.
336 pages. $18.

Copyrights, patents, trademarks, and the other various legal devices we have come to know as intellectual property are the institutional foundations of the networked information economy. They are as critical to economic and social life in the twenty-first century as corporate, antitrust, and labor law were to the twentieth. Unsurprisingly, when a set of laws is both genuinely important and places many billions of dollars at stake, it becomes highly contested. No volume is a better hitchhiker's guide to today's intellectual-property struggles than James Boyle's The Public Domain: Enclosing the Commons of the Mind.

It is harder to grasp what lies outside the domain of property—namely, the commons—than it is to grasp property, the idea that something is mine. Boyle, William Neal Reynolds Professor of law at Duke, tries to render this "outside" comprehensible by taking the reader carefully through a wide range of areas.  He moves from a brilliant musicological exploration of Ray Charles' invention of soul with "I Got a Woman" and its reincarnation in a political rap song about the failed response to Hurricane Katrina, through software development and public policies on weather data, to the very cutting edge of synthetic biology. He methodically builds the case that the public domain—the commons, "the opposite of property"—is as free labor and free trade were to the economy of goods. The commons offers the basic background freedom to operate, without which strong rights are nothing more than licenses to monopolize, control, and exploit.

It is this complexity, the delicate interaction between exclusive rights like copyright and patents, on the one hand, and the freedom to operate within a culture's "state of the art," on the other—rather than the simplistic binary opposition of "property" versus "commons"—that Boyle captures so well in this book.

Evoking Thomas Jefferson's circumspect views on patents, Boyle explains why regulating knowledge production, whose outputs we cover as "goods," is fundamentally different from regulating the use and production of material resources, which we cover under "property." And he shows that the difference is best understood through the metaphor of monopoly. Property, when held by a monopoly, is only ambiguously efficient and productive. That ambiguity pervades intellectual property, because information and creative insights are public goods. In different fields, with different economic and institutional characteristics (pharmaceuticals as compared with software, for example), the benefits of the ability to control access to the fruits of one's creative labor may be larger or smaller. And the costs to other creators of that control may also be higher or lower.

The point of the "Jefferson Warning" is to make us stop and think: What are the actual benefits that a given rule creates or abjures (or, more often, strengthens or weakens) when it introduces or increases intellectual-property protection in a given field? Think of it as an environmental-impact statement for the creative environment in which a new rule is introduced. Do creators in this field have other ways of paying for creation? Weather data are collected by governments for their own purposes, using taxes. Since this is so, weather data should be made free. The U.S. indeed makes weather data freely available. It sees a much higher social return than do European countries. Those governments charge for the weather data they collect because of all the related services that both nonprofit and commercial entities make of the free available data—from simple weather reports to crop-yield predictions. Software is mostly a service business, and companies like IBM have made massive businesses around free or open-source software. Introducing software patents likely does more harm than good by disrupting these service models in support of a no-longer-valid vision of how most software production is, and can be, funded.

The overall point is that when defining exclusive rights in information, innovation, and culture, we need to act more carefully, and develop more fine-grained evidence, than when we create and define exclusive rights in land or hamburger stands. Historically, we have strayed far from that balanced, evidence-based approach. Intellectual property has always been seen as an arcane area of law. It developed through negotiations among industry insiders, blessed by repeated legislative action by Congressmen who could not be bothered with the details. Nowhere was this clearer than in the intellectual-property "land grab" that typified the field in the 1990s, which Boyle explains with great clarity.

Boyle founded Duke's Center for the Public Domain. He was a founding director and later chair of the board of Creative Commons, a nonprofit that has developed standard contracts through which authors share their work, creating a contractually reconstructed commons. He was the animating spirit behind the extension of this approach to scientific work, through the Science Commons component of Creative Commons.

The Public Domain combines these practical experiences in the trenches of policy battles and institutional innovation with historical sensibilities and theoretical erudition. The combination makes this an indispensable guide to a great question of our time: How to construct the networked information economy and its future of innovation and creative expression.


Haunting Bombay: A Novel

By Shilpa Agarwal '93.
Soho Press, 2009. 362 pages. $24 .

Whenever a Bollywood movie of the 1960s had a supernatural element such as a ghost or a haunting, the directors would warn the audience that the story was imaginary; that ghosts did not really exist; that this was only entertainment. These glossy three-hour films, with their songs and dances, may have had little connection with reality, but they were the only pop culture Hindi-speaking India had. They reached places in the Indian subcontinent where no other medium could hope to reach. Their impact was enormous among the illiterate, who were seen as impressionable and who made easy targets for the fake spiritual leaders promising to rid them of their bad luck in return for a suitable fee.

Perhaps that is why one feels some surprise when Shilpa Agarwal's ghost makes its appearance in an old colonial mansion on Malabar Heights, as the book refers to the city's upmarket residential area, Malabar Hill. In Indian fiction, ghosts are talked about. They are neither seen nor heard. Is this a ghost of postcolonial past? Or is she simply a miasmic representation of the skeletons in the closet that every family has, a way of invoking Balzac's dictum "Behind great fortune there is a crime"?

Three generations of Mittals live and work in the Bombay of 1960, a place of turmoil and opportunity. At the top of the pyramid is the matriarch, Maji (a name composed of her sexual identity as mother, "maa"; and from the suffix of respect, "ji," that is attached to any senior person's name), who waddles from room to room, ensuring that her domain is in good shape and its denizens are behaving as good upper-caste Hindus should. Her son, Jaginder, and his wife, Savita, and their three children, Nimish, Dheer, and Tufan, comprise the bulk of the next two levels. But the central protagonist is thirteen-year-old Pinky, whose mother has died in childbirth and whose father has relinquished his right to her in exchange for the money that will set him up in business.

Life trundles along in the ordinary way. Maaji supervises the kitchen and the gods and spends her free time with her neighbor Vimala Lawate. Jaginder conducts business. Savita hates the little outsider, Pinky. Nimish reads British novels that are set in India and moons over the neighbor's daughter, Lovely Lawate. And then Pinky, powered by a mixture of curiosity and compassion, opens a door and summons the ghost. From then on, the novel changes pace and stride. From a comfortable evocation of family life, it turns into an occult thriller, straight from lazy summer afternoon to a winter-chilled midnight.

One of the epigraphs of the book is the question posed by postcolonial feminist author Gayatri Chakravarti Spivak: "Can the subaltern speak?" The answer to that question is complex, but every society has a way of silencing its marginal people. They are defined, all over the world, as those who do not fit into some imaginary definition of normal, or those who do not get heard. The ghosts that haunt Bombay are the ghosts of the dispossessed.

Unfortunately, despite her sympathies, Agarwal's novel works best when it is inside the homes of the rich. There she gets it right. The woman who consoles herself by looking at her jewelry, the man who dismisses his son because he liked reading, the pudgy children of privilege, the conversations between two old ladies are all rendered with care and attention. Once it steps down into the world of drivers and ayahs, eunuchs and tantriks, it becomes exotic. Almost every act of rebellion against the status quo—the silencing of the Other by the patriarchal, the heteronormative, the privileged—fails.

However, this is also a book illuminated by flashes of sly wit. When Nimish stumbles upon Untouchable: A Novel by Mulk Raj Anand, he has his own moment of epiphany, as literature frees his postcolonial soul.

And then gently closing the book and drifting off to sleep, Nimish could no longer deny that a single shelf of a good Indian library was worth more to him than the whole native literature of England.

This is neat reversion of Lord Macaulay's famous statement that a single shelf of a good European library is worth the whole native literature of India and Arabia. Take that, Lord M.

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