Re: copyright under stress

On Wed, May 31, 2000, Kevin Grierson <kgrierson[_at_]wilsav.com> wrote:
>
> I also find your argument that copyright amounts to "appropriation from
> the commons" unconvincing (and ironic, given that the "tragedy of the
> commons" led to property rights in the first place). The works that
> are being copied were not in the commons to start with -- they were
> placed there by their creators, who had the option of not making them
> public, but chose to do so because of the protections afforded by
> copyright.

The rights of landowners to share in the commons were property rights. The enclosure movement involved the large landowners destroying those property rights.

The property rights in the common were only to graze as many cattle there as went to sleep at night and woke up in the morning on the separate land of their owner. So the ``tragedy of the commons'' never threatened the land held in common that was later seized by the fat cats in the enclosure movement. (I say ``seized'', rather than ``stolen'', because you can't steal land anymore than you can steal the expression of an idea.)

When I pointed this out to Garett Hardin -- the author of the ``Tragedy of the Commons'' whose name I may be misspelling -- he said that he wished he had known that when he wrote the article, because it strengthened his point that commons that were not subject to property rights are likely to be destroyed by the tragedy that, absent some sort of right to keep others from eating one's cake, one doesn't have a choice between eating now or saving it for later, since if one tries to save it, someone else will eat it.

The tragedy of the commons does not, of course, apply to the subject matter of intellectual property. You still have your idea, even if someone else should think it too.

--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu/
        NOTE: junger[_at_]pdj2-ra.f-remote.cwru.edu no longer exists