Academic journal article
By Boyle, James
Law and Contemporary Problems , Vol. 70, No. 2
It is hard to explain how honored I was when Larry Lessig and his colleagues at Stanford organized this conference around some of my ideas--or more accurately, around a set of ideas for which they gave me greater credit than I deserved. This kind of thing generally happens when one is either dead or retiring (I am hoping that the contributors do not have some knowledge I lack about the imminence of either of those events). The event was doubly humbling. The scholars who agreed to write for this volume are a remarkable group whose work I admire greatly, while Larry's own scholarship and work as a public intellectual are also a great inspiration to me--he is clearly the one whose work deserves a symposium, if anyone's does.
The contributions to the symposium include four main articles that engage in different ways and degrees with my work and with the idea of cultural environmentalism, commentaries on those articles, and, at the end, two papers that evolved from commentaries but that are no longer directed towards the articles on which they originally commented. (1) I could not hope to respond to everything in the volume point by point, and I am not going to try. Instead, I will offer my own thoughts on the failings, limitations, occasional promise, and possible future of the ideas discussed in this symposium--both the work on cultural environmentalism and the surrounding ideas on authorship, the rhetoric of economic analysis, the structure of intellectual property scholarship, and the jurisprudence of the public domain. Where appropriate, I will try to link my comments back to the individual articles and comments in this symposium.
MAKING VISIBLE THE INVISIBLE
You will recall my work here, such as it has been.... None of it does more than mark time. Repetitive and disconnected, it advances nowhere. Since indeed it never ceases to say the same thing, it perhaps says nothing. It is tangled up into an indecipherable, disorganised muddle. In a nutshell, it is inconclusive. Still, I could claim that after all these were only trails to be followed, it mattered little where they led; indeed, it was important that they did not have a predetermined starting point and destination. They were merely lines laid down for you to pursue or to divert elsewhere, or re-design as the case might be. They are, in the final analysis, just fragments, and it is up to you or me to see what we can make of them. For my part, it has struck me that I might have seemed a bit like a whale that leaps to the surface of the water disturbing it momentarily with a tiny jet of spray and lets it be believed, or pretends to believe, or wants to believe, or himself does in fact believe, that down in the depths where no one sees him any more, where he is no longer witnessed nor controlled by anyone, he follows a more profound, coherent and reasoned trajectory. Well, anyway, that was more or less how I at least conceived the situation; it could be that you perceived it differently. (2)
Apart from the sneaking feeling that "indecipherable, disorganized muddle" describes my work better than his, I have little in common with Foucault. Still, a symposium is the perfect place for indulging oneself in the delusion of deeper coherence that he describes. I shall not resist the temptation.
Cultural environmentalism is an idea, an intellectual and practical movement, that is supposed to be a solution to a set of political and theoretical problems--an imbalance in the way we make intellectual property policy, a legal regime that has adapted poorly to the way that technology has broadened its ambit, and perhaps most importantly a set of mental models, economic nostrums, and property theories that each have a public-domain-shaped hole at their center.
The comparison I drew between the history of environmentalism and the state of intellectual property policy had a number of facets. …