Notes: Chapter 10

1. Jonathan Zittrain, The Future of the Internet—And How to Stop It (New Haven, Conn.: Yale University Press, 2008).

2. Of course, these are not the only assumptions, arguments, and metaphors around. Powerful counterweights exist: the ideas of Jefferson and Macaulay, which I described here, but also others, more loosely related—the Scottish Enlightenment’s stress on the political and moral benefits of competition, free commerce, and free labor; deep economic and political skepticism about monopolies; the strong traditions of open science; and even liberalism’s abiding focus on free speech and access to information. If you hear the slogan “information wants to be free,” you may agree or disagree with the personification. You may find the idea simplistic. But you do not find it incomprehensible, as you might if someone said “housing wants to be free” or “food wants to be free.” We view access to information and culture as vital to successful versions of both capitalism and liberal democracy. We apply to blockages in information flow or disparities in access to information a skepticism that does not always apply to other social goods. Our attitudes toward informational resources are simply different from our attitudes toward other forms of power, wealth, or advantage. It is one of the reasons that the Jefferson Warning is so immediately attractive. It is this attitudinal difference that makes the political terrain on these issues so fascinating.

3. Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (Cambridge, Mass.: Harvard University Press, 1965) and Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities (New Haven, Conn.: Yale University Press, 1982).

4. “The source of the general divergences between the values of marginal social and marginal private net product that occur under simple competition is the fact that, in some occupations, a part of the product of a unit of resources consists of something, which, instead of coming in the first instance to the person who invests the unit, comes instead, in the first instance (i.e., prior to sale if sale takes place), as a positive or negative item, to other people.” Arthur C. Pigou, “Divergences between Marginal Social Net Product and Marginal Private Net Product,” in The Economics of Welfare (London: Macmillan, 1932), available at Ironically, so far as I can find, Pigou does not use the word “externality.”

5. William D. Ruckelshaus, “Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad,” Environmental Law 15 (1985): 457.

6. As always, Jessica Litman provides the clearest and most down-to-earth example. Commenting on Rebecca Tushnet’s engrossing paper on fan fiction (Rebecca Tushnet, “Payment in Credit: Copyright Law and Subcultural Creativity,” Law and Contemporary Problems 70 (Spring 2007): 135–174), Litman describes copyright’s “balance between uses copyright owners are entitled to control and other uses that they simply are not entitled to control.” Jessica Litman, “Creative Reading,” Law and Contemporary Problems 70 (Spring 2007), 175. That balance, she suggests, is not bug but feature. The spaces of freedom that exist in the analog world because widespread use is possible without copying are neither oversights, nor temporarily abandoned mines of monopoly rent just waiting for a better technological retrieval method. They are integral parts of the copyright system.

7. James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87–116.

8. Molly Shaffer Van Houweling, “Cultural Environmentalism and the Constructed Commons,” Law and Contemporary Problems 70 (Spring 2007): 23–50.

9. See,,

10. Eldred v. Ashcroft, 537 U.S. 186 (2003). Once again, Professor Lessig had the central role as counsel for petitioners.

11. See

12. See Access to Knowledge, Some of Mr. Love’s initiatives are discussed at

13. Tim Hubbard and James Love, “A New Trade Framework for Global Healthcare R&D,” PLoS Biology 2 (2004): e52.

14. WIPO Development Agenda, available at The Geneva Declaration on the Future of the World Intellectual Property Organization, available at In the interest of full disclosure, I should note that I wrote one of the first manifestos that formed the basis for earlier drafts of the Declaration. James Boyle, “A Manifesto on WIPO and the Future of Intellectual Property,” Duke Law & Technology Review 0009 (2004): 1–12, available at The Adelphi Charter on Creativity, Innovation, and Intellectual Property, available at The Charter was issued by the British Royal Society for the Encouragement of Arts, Manufactures and Commerce (RSA). For discussion of the Charter see James Boyle, “Protecting the Public Domain,” (October 14, 2005), available at higher/comment/story/0,9828,1591467,00.html; “Free Ideas,”The Economist (October 15, 2005), 68. Again, in the interest of full disclosure, I should note that I advised the RSA on these issues and was on the steering committee of the group that produced the Charter.

15. An example is the MacArthur Foundation Program on Intellectual Property and the Public Domain: “The General Program . . . was begun in 2002 as a short-term project to support new models, policy analysis, and public education designed to bring about balance between public and private interests concerning intellectual property rights in a digital era.” See The Ford Foundation has a similar initiative. Frédéric Sultan, “International Intellectual Property Initiative: Ford Foundation I-Jumelage Resources,” available at

16. See and

17. This process runs counter to the assumptions of theorists of collective action problems in a way remarkable enough to have attracted its own chroniclers. See Amy Kapczynski, “The Access to Knowledge Mobilization and the New Politics of Intellectual Property,” Yale Law Journal 117 (2008): 804–885. Economists generally assume preferences are simply given, individuals just have them and they are “exogenous” to the legal system in the sense that they are unaffected by the allocation of legal rights. The emergence of the movements and institutions I am describing here paints a different picture. The “preferences” are socially constructed, created through a collective process of debate and decision which shifts the level of abstraction upwards; and, as Kapczynski perceptively notes, they are highly influenced by the legal categories and rights against which the groups involved initially defined themselves.

18. See “News for Nerds: Stuff That Matters,”, and “A Directory of Wonderful Things,”

19. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified as amended in scattered sections of 5, 17, 28, and 35 U.S.C.).

20. For the former see “Content Protection,”, and “Digital Rights Management,” For the latter, see “Copyright,”

21. R. David Kryder, Stanley P. Kowalski, and Anatole F. Krattiger, “The Intellectual and Technical Property Components of Pro-Vitamin A Rice (GoldenRiceTM): A Preliminary Freedom-to-Operate Review,” ISAAA Briefs No. 20 (2000), available at

22. “The Supreme Court Docket: The Coming of Copyright Perpetuity,” New York Times editorial (January 16, 2003), A28.

23. “Free Mickey Mouse,” Washington Post editorial (January 21, 2003), A16.