< Patently Wrong

Transcript

Friday, December 05, 2008

BROOKE GLADSTONE:
In his new book, The Public Domain: Enclosing the Commons of the Mind, Duke Law Professor James Boyle tells the strange story of the “sealed crustless sandwich” or, for the patent law enthusiasts “Patent #6004596.” The sandwich consists of, quote, “a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between.”

Not big news to anyone who’s cut the crusts off of a PB&J in the kitchen. According to Boyle, the patented sandwich is just one in a long list of examples of how our patent, copyright and intellectual property laws can be preposterous.

In his book, Boyle argues that while it’s become easier and easier to disseminate information and ideas, the law has made that harder and harder to do, in so many cases. Boyle says that although the sandwich case sounds silly, it’s not. The patent made it all the way to a courtroom, and eventually reason won the day.
JAMES BOYLE:
The judge acerbically asked one of the lawyers, so is my wife violating patent law when she packs my lunch, the kind of moment when you know your case is going badly.
[BROOKE LAUGHS]
A lot of people look at patents like this and they say, well, look if they do get to court, as this one eventually did - I think they were called ”The Uncrustables” [BROOKE LAUGHS] – some court will have an attack of good sense to the head and strike it down.

So it might seem like it’s just a kind of legal funny farm time. But it’s actually a symptom of something going quite profoundly wrong in the patent system because when the state starts handing out monopolies over certain forms of knowledge, of invention, that actually imposes a cost on all of us. So this silly patent is actually a symptom of a deeper disease.
BROOKE GLADSTONE:
Gene sequences, they've been patented. To paraphrase the old commercial, is it right to patent Mother Nature?
JAMES BOYLE:
There’s really two sets of issues here. Some people say, well wait, the gene sequences are there, so all you’re really doing is plagiarizing somebody else’s work, as it were, so you shouldn't get a patent on it.

And then there’s a second set of concerns, which go to the question of like well, what effect will this have on science? You want to try and make sure that you don't block the roads of scientific progress. Are we taking the basic building blocks of knowledge away from scientists?
BROOKE GLADSTONE:
And you say that intellectual property issues often are described in the media as, quote, “arcane or abstruse or technical” – in other words, really, really boring. Since you say that this is so much a problem of communicating stakes to ordinary people, what are the stakes that we're talking about here?
JAMES BOYLE:
Well, I think the stakes are the fundamental control of our culture and science. And maybe the best example I could give is a story that I tell in the book of trying to explain the Library of Congress Online Catalog to my son.

I'm browsing through this online catalog, and my son, who was then about eight, comes up to me and says, what are you doing? I said, oh, I'm looking for a book that was published in the 1930s. And he says, well, you know, why don't you buy it? And I said, well, you can't buy it, it’s no longer available. The publisher’s out of business and the author’s dead. And he goes, well, why don't you read it on screen? I said, well, I can't. And he says, no, you can, Dad, and he reaches over and he clicks – double clicks the title on the screen - and a child of the Internet age, he expects the book to open. The book doesn't open. Instead there’s, you know, bibliographic details. And he goes, well, where do you click to get the book? [BROOKE LAUGHS]

And I said, well, David, you can't click to get the book. And he goes, why not? You just told me no one could sell it to you, the author’s dead, the publisher’s out of business. Why can't you click to get the book?
That’s a really good question.
BROOKE GLADSTONE:
And the answer is?
JAMES BOYLE:
The answer is copyright law. Because we've retrospectively extended copyright, people who wrote books under the premise that they would get 56 years of copyright protection are now covered for life plus 70. That’s just one example of the way in which our intellectual property policy hasn't considered the interests of society and has said, oh let's create more rights and extend them, with no thought to the negative consequences of doing that.

And what we're doing is neglecting the flip side, the public domain, the raw material for the future, what the next artist, the next writer, the next painter, the next software coder is going to build on. You can't make a house without bricks. You can't build culture or science without the public domain.
BROOKE GLADSTONE:
But James, surely the Internet and all the piracy that it allows suggests that we need to strengthen intellectual property rights and not weaken them.
JAMES BOYLE:
First of all, just think about this: Supposing you were somebody who had copyrighted content, in a world where you had a potential audience of a million people, and basically there was no illicit copying at all. And I come along and I say, okay Brooke, I have a deal for you. I have this thing called the Internet. Suddenly you’re going to be able to reach a billion people, two billion people. That’s going to be your potential audience. I'm going to reduce your cost of reproduction of your material to zero. I'm going to reduce your costs of advertising dramatically, so suddenly you can reach this global audience for pennies.

But the downside is that now there’s going to be an illicit copying level of 10 percent or 20 percent or 50 percent. Which would you pick, the closed world with perfect control and a million people, or the open world with the possibility of reaching billions, but also tradeoff; you lose control of your work?

What the movie companies and the record companies want is all the advantages of the new technology and none of its disadvantages.
BROOKE GLADSTONE:
And, you write that the explosion of information technologies has precipitated an intellectual land grab, and that we need something akin to an environmental movement to teach us both about the existence and the value of the public domain and how to preserve it. I mean, exactly how do you create that kind of movement?
JAMES BOYLE:
The answer is that it’s already beginning to happen. If you think about it, if we could transport ourselves back in time to 1950, let's say, and I were to appear beside you and hand you a copy of my book and say, quick Brooke, violate copyright law, you wouldn't have been able to do it. What are you going to do, get a mimeograph machine, read it aloud?

Now, fast-forwarding to 2008, if I say to you, spend a day when you don't create copies, where you don't digitally create things, it’s almost impossible for us not to touch on intellectual property law.

So the thing is people – human beings, not corporations with printing presses or broadcasting towers – are becoming the subjects of intellectual property law. And a lot of times they look at what they find and they go, this doesn't make any sense to me. I am perfectly willing to obey the law, but why is it that there are all these books sitting in the Library of Congress that are out of print, there’s no way I can pay for them, and yet, copyright law doesn't permit anyone to reproduce them? Why can't I get access to all these movies moldering in our nation’s film libraries?

Well, let's ask the copyright holder. Oh, we can't find the copyright holder. Oh, well, when could I get to see it? Oh, well, life plus 70 years, or 95 years [BROOKE LAUGHS] in the case of a work-for-hire. Oh, but they will have disintegrated by then. Too bad!

That doesn't make sense to people. All it’s doing is locking up our culture for nothing. And people look at that and they go, well, this needs a little common sense applied to it. And that’s what I'm trying to provide in the book.
BROOKE GLADSTONE:
James, thank you very much.
JAMES BOYLE:
Thank you very much.
BROOKE GLADSTONE:
James Boyle is a law professor at Duke University. He’s following his own advice with his new book, The Public Domain: Enclosing the Commons of the Mind, giving it away for free online at Thepublicdomain.org under a Creative Commons License. We'll link to it too, but you can also buy it in bookstores, and you should. It’s that good.