The “commons of the mind” must be preserved, says James Boyle of Duke Law School, on the 50th anniversary of “The tragedy of the commons”

“THE ONLY way we can preserve and nurture other and more precious freedoms is by relinquishing the freedom to breed.” This ominous sentence comes not from China’s one-child policy but from one of the 20th century’s most influential—and misunderstood—essays in economics. “The tragedy of the commons”, by Garrett Hardin, marks its 50th anniversary on December 13th.

The article, published in the journal Science, was a neo-Malthusian jeremiad about uncontrolled population growth. But it is remembered for the image that the title conjures up and for the anecdotes that Hardin used. The idea behind it is as simple as it is profound: a resource freely available to all will be used inefficiently. An actual common will inevitably be overgrazed. Who would restrict their cattle if other herders may not follow suit?

The influence of “The tragedy of the commons” was immense. For environmentalists, for example, it provided the intellectual backing for green regulations. Selfish economic actors will never protect the vulnerable commons of the atmosphere, or a wetland, or an ocean with dwindling stocks of tuna. The problem is structural: only regulation will work, the argument goes.

One reason for the lasting vitality of the phrase was that all parts of the political spectrum had their own take on the tragedy. It served as a wonderful shorthand for the inefficiency of public resources, for instance. Take the airwaves. If they are held in common, chaos will result. Interference may drown everyone out. The commercial solution? Sell off pieces of the radio spectrum. In this light, the answer to the tragedy of the commons is not regulation but private property. Any influential idea invites pushback. In 2009 Elinor Ostrom won a Nobel prize in economics for pointing out that reality is more complex than a binary, commons/property model would suggest. Many resources are neither pure commons nor pure property. Often, effective resource allocations are made at the local level by informal norms. For instance, if a stranger attempted to fish in a 16th-century English village pond, he might well have found himself in the pond—courtesy of locals who would be angry that a newcomer had the gall to use the resource, commons or no. Ostrom pointed out that the legal status of property is only one strand in webs of formal and informal norms that often mitigate the ills that Hardin feared. Ostrom inspired a generation of researchers who studied actual commons and found a more complex reality than the simple model indicates. Their empirically backed conclusions were summarised pithily in what became known as Ostrom’s Law: “A resource arrangement that works in practice can work in theory.” Still, despite the complexities, the core of Hardin’s argument remained strong, even as it was applied in new ways. In the 21st century, the tragedy of the commons metaphor flourished in a new domain: the intangible world of intellectual property. Take the human genome. A genetic commons would never invite investment, went the argument. A dramatic expansion of intellectual property was necessary, from gene patents to rights over genetic data. However an even bigger fight is taking place today with the commons of digital content.

The internet has dramatically lowered the cost of copying, including illicit copying. When the web was first weaved in the 1990s, intellectual-property owners found their property had, involuntarily, been turned into a common. Strong new copyright rules and draconian enforcement seemed to be necessary to tame the rebellious digital commoners and reclaim the level of control that had existed in an analogue world.

These arguments found a receptive audience among policymakers worldwide, and copyright’s scope, duration and penalties were dramatically expanded. Over the past two decades new legal rights have allowed “digital fences” to be used to surround copyrighted works, even if those fences interfered with people’s rights, such as to freely use snippets of content (the legal doctrine of “fair dealing,” known as “fair use” in America). Copyright’s restrictions were also misused to curtail competition, block research on cryptography and produce new online monopolies. Again, the “solution” to the tragedy of the commons—property rights—came with hefty costs.

You could consider the growing restrictions around intellectual property as “the second enclosure movement”. The first enclosures were the centuries-long waves of expropriation of English and Scottish common lands, turning them over to a handful of landowners. The second enclosures took aim at the commons of the mind. They were justified on similar grounds: common property is inefficient and therefore “tragic”.

The first enclosures were said to have increased agricultural production (though some economic historians disagree). The second enclosure movement, its proponents proclaimed, would be similarly beneficial to the ephemeral world of digital content.

Yet just as Hardin’s argument met with pushback from Ostrom and others in the physical context, there has also been powerful intellectual resistance to the second enclosure movement. Most notably, some of the problems of the terrestrial commons do not apply to the intangible versions: it is hard to overfish an idea. We might get underinvestment in a more open system, but what if we were underestimating the productive power of the commons and openness?

Carol Rose, a law professor at the University of Arizona, calls this “the comedy of the commons”—the opposite of tragedy. Consider open-source software. It is precisely because the licence guarantees that the commons will remain open, and that each new contribution will be shared under the same terms, that people can commit to using it. Imagine trying to get phone manufacturers to use the Android operating system if Google could take it private at any time.

A global network lowers the costs of “commons collaboration” close to zero. Some people will participate to showcase their credentials, or to build a user-base for consulting services, or just because sharing is fun and costs nothing. Examples include Creative Commons (a less restrictive copyright system, which I had a hand in launching); Wikipedia; Linux, an open-source operating system; and the massive amount of useful digital content created by volunteers. These are what Yochai Benkler of Harvard Law School calls “commons-based peer production”. True, there are significant limits to this model. Peer production is not going to take us through a Phase III drug trial. But strikingly, we aren’t exactly sure where those limits are.

Furthermore, the proliferation of property rights has its costs. The American legal scholars Michael Heller and Rebecca Eisenberg call it the “anti-commons”: the idea that innovation withers because of too many property rights, patent thickets, exhaustive and exhausting copyright licensing procedures and the like. To take one example, the smartphone in your pocket is covered by between 5,000 and 15,000 patents, and potentially by as many as 250,000 when all related patents are counted. I am a law professor and even I can’t divine what the correct figure is. Nor can anyone else. Worse, some large proportion of those patents are certainly invalid.

Is innovation easier in such a world? In medicine, rafts of patents obstruct research into treatments such as a malaria vaccine; the costs of just identifying the relevant patents is prohibitive. Such a system is great for patent lawyers, whom I train. It is unlikely to be good for society as a whole.

Where do we go from here? It might be worth remembering an 18th-century anonymous poem protesting the enclosure of the earthy commons.

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.

It concludes:

And geese will still a common lack,

Till they go and steal it back.

In the environmental world, Hardin’s tragedy is, if anything, more urgent after 50 years. But the enclosure of the commons of the mind has showed the limits of the argument. As his article heads into its second half-century, it would be nice to think that we could learn to see the comedies of the intangible commons as clearly as he saw the tragedy of the terrestrial one. If we don’t, we will be very silly geese indeed.

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James Boyle is the William Neal Reynolds Professor of Law at Duke Law School. He is the author of “The Public Domain: Enclosing the Commons of the Mind” and co-author of the comic book “Theft!: A History of Music”. He was a founding board director of Creative Commons, a non-profit organisation that pioneered alternative copyright licences that made content free to reuse. Both his books are freely available under Creative Commons licences.