Cultural environmentalism

You gotta fight, for your right, to the public domain.

Published February 28, 2006 8:44PM (EST)

The mosaic of interlocking issues covered in this space, including, but not limited to, international labor, energy, intellectual property, global warming, open-source software and China, sometimes threatens to to explode into a million broken shards of unrelated info-nuggets. In the morning I'm thinking about the fourth straight month of decline for existing home sales, in the afternoon I'm wondering about the job market for Silicon Valley programmers, and in the evening I'm trying to figure out which is cheaper, wind energy or nuclear power. Figuring out how everything ties together seems less like an interesting puzzle and more like forcing square pegs into round holes.

But every now and then comes a moment when the planets align and the endless kaleidoscopic flurry crystallizes into clarity. Such an epiphany happened today, courtesy of the pointer by Stanford law professor Larry Lessig to Cultural Environmentalism at 10, a conference at Stanford University in mid-March.

Cultural environmentalism attempts to apply the lessons learned from the history of the environmental movement to the question of how best to conceptualize the "public domain." As an introduction to the topic, the Web page for the conference recommends reading a paper by Duke law professor James Boyle, whose book "Shamans, Software, and Spleens: Law and the Construction of the Information Society," published 10 years ago, kicked the metaphor into public discourse.

I just read that paper, and am currently luxuriating in one of those rare moments when everything seems to fit together and make sense. Not only is Boyle a lucid and entertaining writer, but the topics that he weaves together -- namely, the steady encroachment upon the public domain of ever-more-restrictive intellectual property laws, the open-source software movement, the baleful influence of the deregulated, privatized market-obsessed "Washington Consensus," and the environmental movement -- add up to a compelling tour de force on issues that have been the subject of How the World Works since its inception.

Boyle writes that "the environmental movement also gained much of its persuasive power by pointing out that there were structural reasons for bad environmental decisions -- a legal system based on a particular notion of what 'private property' entailed, and a scientific system that treated the world as a simple, linearly-related set of causes and effects. In both of these conceptual systems, the environment actually disappeared; there was no place for it in the analysis. Small surprise, then, that we did not preserve it very well."

"The same," Boyle argues, "is true about the public domain. The fundamental tensions in the economic analysis of information issues, the source-blindness of an original author-centered model of property rights, and the political blindness to the importance of the public domain as a whole (not 'my lake' but 'The Environment') all come together to make the public domain disappear, first in concept and then, increasingly, as a reality."

I am quoting here from very near the end of a magisterial essay, and thus inescapably giving short shrift to the history, analysis and argument that precede this summing up. As Boyle notes, the "public domain" is a difficult concept to define, and the tension between the demands for greater intellectual property control and a digital, networked environment that makes copyright harder to enforce than ever before is a fantastically complex challenge to resolve. But the larger point, that there is a holistic value to the public domain that needs to be factored into each and every argument over intellectual property -- the ownership of the human genome, the interaction between patent rights and innovation, the periodic extension of copyright -- is eloquent and, to my mind, undeniable.

And it is to be seen everywhere. Look at Chile's proposal last month to the World Intellectual Property Organization, calling for WIPO "to consider the protection of the public domain within WIPO's normative processes." The developing world is becoming ever more vocal in demanding room to operate, and grow, in the face of advanced-nation attempts to lock in their built-in intellectual property advantages. Look at the outcry against the announcement that the director of the U.S. National Institute of Environmental Health Sciences is planning to privatize a publicly accessible environmental science journal, Environmental Health Perspectives, that health researchers all over the world consider a vital source of information. Look at the open-source software movement, a vibrant wellspring of creativity and innovation that has flourished in the era of networks and digital information, even as the traditional entertainment and software industries quail at the threat that those very networks pose to their long-standing business models.

Internationally, locally, in cyberspace and on land and sea, the question of how to calculate the appropriate economic value of preserving such things as the environment and the public domain (not to mention human rights or living standards) is a problem that unregulated markets do not solve very well. Societies need to make those decisions -- but as Boyle notes, with governments increasingly controlled by "stakeholders" with vested interests that do not necessarily coincide with the general public's, society's ability to choose wisely is in great doubt. I have rarely seen the many threads involved in understanding this dilemma braided together as well as Boyle does in his article. You can be sure his book has moved right to the top of my reading list.

By Andrew Leonard

Andrew Leonard is a staff writer at Salon. On Twitter, @koxinga21.

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