Public domain in peril? Not again!

Net-heads and civil libertarians are worried that the public domain is being eroded and enclosed. Media owners fear a ravenous, technology-enhanced public domain will eat their businesses. Who’s right? Neither.

The public domain is a tricky concept to define. As a starting point, we can be sure that every community in history has had a public domain of some kind something defined as a shared resource: grazing land, communal housing, ideas. We also know that it’s not a stable concept, that it shrinks and expands, century by century, place by place. In some periods the public realm is rich and productive (Florence in the Renaissance), in others thin and troubled (Soviet Russia). A good public domain has a signature that we recognise. It is open, forgiving of experiment, balanced as to ownership and exploitation of ideas, innovative. We’re going through a change right now, thanks to a wave of technical and social change and to the arrival of cheap, networked computers. Some think that we’re at an ‘inflection point’, that things could go either way and we could wind up with an immeasurably richer public sphere or that it could wither and collapse. The fact that everyone is thinking about the public domain now is instructive. We only notice it when it’s changing.

The war of the file sharers and the media owners is a great drama, a conflict on an epic scale (books will be written, movies will be made) – but it’s not the first time public and private have clashed. Attacks on the public domain usually come from ruling classes and economic elites: enclosers, industrialists, colonists. Defence is organised from below: Diggers and Levellers, squatters and trespassers. For such a contested concept it’s remarkably robust, though. Centuries after capital was first employed to organise and exploit natural resources our world has demonstrably not been reduced to a homogenous field of ownership and exploitation. It remains an uneven mixture of public and private – and there’s a great deal of traffic between the two. Even that haven of the private, America, sustains a healthy public domain and a real debate about its value and its preservation. In the US alone, four campaigning groups have been set up in response to recent encroachments on the public domain by big business: Creative Commons, Public Knowledge, Digital Consumer and Chilling Effects. Lawrence Lessig’s magisterial The Future of Ideas: The Fate of the Commons in a Connected World is a New York Times bestseller and Esther Dyson devoted the whole of June’s Release 1.0 to the issue. The public domain has knocked privacy off the anxiety top spot and has the wired classes chattering.

In the world of ideas, new technology persistently upsets our understanding of what’s public and what’s private. Printing with movable type, photography, audio and video cassettes, genomics, open source software, CCTV and now file sharing – all alter the context because they permit us to move value – social, cultural, economic – from one realm to the other. Sometimes a technology can work to enclose or shrink the public domain. The patenting of organisms and genes, for instance, redefines a historically public category of knowledge as property, exploitable and tradable like other assets. To the Greens and the developing world, terminator genes and patented seed stock promise to remove vital tools and know-how from the public domain all together – condemning farmers and communities to indefinite servitude to Western Agri-Business.

But it’s not a one-way street. To the media firms, Napster and its surviving clones promise the final dissolution of their ownership rights in digital media. They see the file sharers (the industry’s own ?axis of evil’) moving their entire asset base into a hugely expanded public domain. Consider this dizzying fact: it’s certain that every track from every major label’s current catalogue is now online for free download somewhere. File sharing is the public domain’s most vigorous counter-strike yet, a snatch operation of extraordinary effectiveness. The net says: ?we, the networked people, hereby redefine your expensively-cultivated asset-base a public good and, furthermore, jointly and severally rescind any contract we might once have had with you to pay for this stuff. It’s ours now. Sorry, guys.? Should we be surprised that the record labels and their trade bodies fight back? And fight back as if this were their last fight? No, we shouldn’t.

So is this really the end for the media owners? Has their principle asset – the bank of content, talent and potential in which they have invested so much – now been effectively written down to zero? Have the file sharers done for the entire media industry? Predictably, and perhaps boringly if you were looking for the big story, the answer is ?no’. The media firms will adapt to the new distribution realities and stretch to accommodate entirely new models for rights exploitation. These new models, including legalised file sharing, will sit quite comfortably alongside classically packaged and distributed content – just as the racks of vinyl sit weirdly alongside the CDs in your local Mega Media Outlet. Remember, audio cassettes and video tapes went from an industry-threatening pirate’s charter to a profitable part of the value chain within five years of their introduction. No one should underestimate the magnitude of the challenge faced by the big media owners but they have precedent, money and influence on their side.

In fact, in the battle with the net, the media owners are definitely on the front foot. Their economic and political clout, especially in the USA, has won them some big victories. File sharing networks have been shut down or compromised. New laws extend the definition of intellectual property to shut down ?loopholes’ like fair use, home copying and copyright time-limits. Other laws propose inserting intrusive new hardware to dumb down useful PCs – the tiny media tail wagging the vast computer industry dog. In the media owners’ new climate of fear, ordinary consumers are implicitly redefined as pirates and their PCs as accessories to a crime. The public domain is not about to cave in – it has weathered worse storms – but the media industries, perceiving an existential threat of unprecedented scale, have ?gone nuclear’. In so doing they threaten to impoverish the public domain by removing copyright material from its reach indefinitely. More immediately, their over-reaction leads to the realistic risk that their practiced string pulling and favour calling might close off new areas of economic value, for the media industries themselves as well as for the manufacturers, telcos and broadband firms ready to meet the emerging needs of digital consumers. As any downloader will tell you for nothing, the best response to the file sharers’ resurgent public domain is not to shut it down but to promote legal alternatives that leverage the industry’s assets, infrastructure and legacy to enhance it.