17. I might be suspected of anti-economist irony here. In truth, neither side's arguments are fully satisfying. It is easy to agree with Richard Posner that the language of economics offers a "thin and unsatisfactory epistemology" through which to understand the world. Richard Posner, The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990): xiv (quoting Paul Bator, "The Judicial Universe of Judge Richard Posner," University of Chicago Law Review 52 (1985): 1161). On the other hand, explaining what it means to "own one's own body," or specifying the noncommodifiable limits on the market, turns out to be a remarkably tricky business, as Margaret Jane Radin has shown with great elegance in Contested Commodities (Cambridge, Mass.: Harvard University Press, 1996).
18. Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases, 1996 Official Journal of the European Union (L 77) 20, available at http://europa.eu.int/ISPO/infosoc/legreg/docs/969ec.html.
19. The phrase "Washington consensus" originated in John Williamson, "What Washington Means by Policy Reform," in Latin American Adjustment: How Much Has Happened? ed. John Williamson (Washington, D.C.: Institute for International Economics, 1990). Over time it has come to be used as shorthand for a neoliberal view of economic policy that puts its faith in deregulation, privatization, and the creation and defense of secure property rights as the cure for all ills. (See Joseph Stiglitz, "The World Bank at the Millennium," Economic Journal 109 [1999]: 577-597.) It has thus become linked to the triumphalist neoliberal account of the end of history and the victory of unregulated markets: see Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992). Neither of these two results are, to be fair, what its creator intended. See John Williamson, "What Should the Bank Think about the Washington Consensus?" Institute for International Economics (July 1999), available at http://www.iie.com/publications/papers/paper.cfm?ResearchID=351.
20. Garrett Hardin, "The Tragedy of the Commons," Science 162 (1968): 1243-1248.
21. The differences are particularly strong in the arguments over "desert"—are these property rights deserved or are they simply violations of the public trust, privatizations of the commons? For example, some would say that we never had the same traditional claims over the genetic commons that the victims of the first enclosure movement had over theirs; this is more like newly discovered frontier land, or perhaps even privately drained marshland, than it is like well-known common land that all have traditionally used. In this case, the enclosers can claim (though their claims are disputed) that they discovered or perhaps simply made usable the territory they seek to own. The opponents of gene patenting, on the other hand, turn more frequently than the farmers of the eighteenth century to religious and ethical arguments about the sanctity of life and the incompatibility of property with living systems. These arguments, or the appeals to free speech that dominate debates over digital intellectual property, have no precise analogue in debates over hunting or pasturage, though again there are common themes. For example, we are already seeing nostalgic laments of the loss of the immemorial rights of Internet users. At the same time, the old language of property law is turned to this more evanescent subject matter; a favorite title of mine is I. Trotter Hardy, "The Ancient Doctrine of Trespass to Web Sites," 1996, art. 7, Journal of Online Law art. 7, available at http://www.wm.edu/law/publications/jol/95_96/hardy.html.
22. The exceptions to this statement turn out to be fascinating. In the interest of brevity, however, I will ignore them entirely.
23. Remember, I am talking here about increases in the level of rights: protecting new subject matter for longer periods of time, criminalizing certain technologies, making it illegal to cut through digital fences even if they have the effect of foreclosing previously lawful uses, and so on. Each of these has the effect of diminishing the public domain in the name of national economic policy.
24. James Boyle, Shamans, Software, and Spleens: Law and the
Construction of the Information Societ (Cambridge, Mass.:
Harvard University Press, 1996), 29; William M. Landes and
Richard A. Posner, "Economic Analysis of Copyright Law," Journal
of Legal Studies 18 (1989): 325; Pamela Samuelson and Suzanne
Scotchmer, "The Law & Economics of Reverse Engineering," Yale
Law Journal 111 (2002): 1575-1664; Jessica Litman, "The Public
Domain," Emory Law Journal 39 (1990): 1010-1011.
25. Sanford J. Grossman and Joseph E. Stiglitz, "On the Impossibility of Informationally Efficient Markets," American Economic Review 70 (1980): 404.
26. For a more technical account, see James Boyle, "Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property," Vanderbilt Law Review 53 (2000): 2007-2039.