Alongside these accounts of the beneficiaries of the new property scheme run news stories about those who were not so fortunate, the commoners of the genetic enclosure. Law students across America read Moore v. Regents of University of California, a California Supreme Court case deciding that Mr. Moore had no property interest in the cells derived from his spleen. 14 The court tells us that giving private property rights to "sources" would slow the freewheeling practice researchers have of sharing their cell lines with all and sundry. 15 The doctors whose inventive genius created a billion- dollar cell line from Mr. Moore's "naturally occurring raw material," by contrast, are granted a patent. Private property rights here, by contrast, are a necessary incentive to research. 16 Economists on both sides of the enclosure debate concentrate on the efficient allocation of rights. Popular discussion, on the other hand, doubtless demonstrating a reprehensible lack of rigor, returns again and again to more naturalistic assumptions such as the essentially "common" quality of the property involved or the idea that one owns one's own body. 17 19

The genome is not the only area to be partially "enclosed" during this second enclosure movement. The expansion of intellectual property rights has been remarkable—from business method patents, to the Digital Millennium Copyright Act, to trademark "anti-dilution" rulings, to the European Database Protection Directive. 18 The old limits to intellectual property rights—the antierosion walls around the public domain—are also under attack. The annual process of updating my syllabus for a basic intellectual property course provides a nice snapshot of what is going on. I can wax nostalgic looking back to a five- year-old text, with its confident list of subject matter that intellectual property rights could not cover, the privileges that circumscribed the rights that did exist, and the length of time before a work falls into the public domain. In each case, the limits have been eaten away. 20

HOW MUCH OF THE INTANGIBLE COMMONS SHOULD WE ENCLOSE? 21

So far I have argued that there are profound similarities between the first enclosure movement and our contemporary expansion of intellectual property, which I call the second enclosure movement. Once again, the critics and proponents of enclosure are locked in battle, hurling at each other incommensurable claims about innovation, efficiency, traditional values, the boundaries of the market, the saving of lives, the loss of familiar liberties. Once again, opposition to enclosure is portrayed as economically illiterate: the beneficiaries of enclosure telling us that an expansion of property rights is needed in order to fuel progress. Indeed, the post-Cold War "Washington consensus" is invoked to claim that the lesson of history itself is that the only way to get growth and efficiency is through markets; property rights, surely, are the sine qua non of markets. 19 22

This faith in enclosure is rooted in a correspondingly deep pessimism about the possibility of managing resources that are either commonly owned or owned by no one. If all have the right to graze their herds on common land, what incentive does anyone have to hold back? My attempt to safeguard the future of the pasture will simply be undercut by others anxious to get theirs while the getting is good. Soon the pasture will be overgrazed and all our flocks will go hungry. In a 1968 article, Garrett Hardin came up with the phrase that would become shorthand for the idea that there were inherent problems with collectively managed resources: "the tragedy of the commons." 20 The phrase, more so than the actual arguments in his article, has come to exercise considerable power over our policies today. Private property—enclosure—is portrayed as the happy ending for the tragedy of the commons: when policy makers see a resource that is unowned, they tend to reach reflexively for "the solving idea of property." According to this view, enclosure is not a "revolution of the rich against the poor," it is a revolution to save the waste of socially vital resources. To say that some social resource is not owned by an individual, that it is free as the air to common use, is automatically to conjure up the idea that it is being wasted. 23

But if there are similarities between our two enclosures, there are also profound dissimilarities; the networked commons of the mind has many different characteristics from the grassy commons of Old England. 21 I want to concentrate here on two key differences between the intellectual commons and the commons of the first enclosure movement, differences that should lead us to question whether this commons is truly tragic and to ask whether stronger intellectual property rights really are the solution to our problems. These differences are well known, indeed they are the starting point for most intellectual property law, a starting point that Jefferson and Macaulay have already laid out for us. Nevertheless, reflection on them might help to explain both the problems and the stakes in the current wave of expansion. 24

Unlike the earthy commons, the commons of the mind is generally "nonrival." Many uses of land are mutually exclusive: if I am using the field for grazing, it may interfere with your plans to use it for growing crops. By contrast, a gene sequence, an MP3 file, or an image may be used by multiple parties; my use does not interfere with yours. To simplify a complicated analysis, this means that the threat of overuse of fields and fisheries is generally not a problem with the informational or innovational commons. 22 Thus, one type of tragedy of the commons is avoided. 25

The concerns in the informational commons have to do with a different kind of collective action problem: the problem of incentives to create the resource in the first place. The difficulty comes from the assumption that information goods are not only nonrival (uses do not interfere with each other), but also nonexcludable (it is impossible, or at least hard, to stop one unit of the good from satisfying an infinite number of users at zero marginal cost). Pirates will copy the song, the mousetrap, the drug formula, the brand. The rest of the argument is well known. Lacking an ability to exclude, creators will be unable to charge for their creations; there will be inadequate incentives to create. Thus, the law must step in and create a limited monopoly called an intellectual property right. 26

How about the argument that the increasing importance of information-intensive products to the world economy means that protection must increase? Must the information commons be enclosed because it is now a more important sector of economic activity? 23 This was certainly one of the arguments for the first enclosure movement. For example, during the Napoleonic Wars enclosure was defended as a necessary method of increasing the efficiency of agricultural production, now a vital sector of a wartime economy. 27

Here we come to another big difference between the commons of the mind and the earthy commons. As has frequently been pointed out, information products are often made up of fragments of other information products; your information output is someone else's information input. 24 These inputs may be snippets of code, discoveries, prior research, images, genres of work, cultural references, or databases of single nucleotide polymorphisms—each is raw material for future innovation. Every increase in protection raises the cost of, or reduces access to, the raw material from which you might have built those future products. The balance is a delicate one; one Nobel Prize-winning economist has claimed that it is actually impossible to strike that balance so as to produce an informationally efficient market. 25 28