Middle ground between enclosure and commons is crucial- IP is the key

(Richard A, Management@Boston, and Herman T, Phil@Rivier, Intellectual Property Rights in a Networked World: Theory and Practice )

In the case of peer-to-peer networks, intellectual property is too vulnerable if precedents such as Sony are strictly applied and users are allowed to share files on a massive scale. On the other hand, cyberpatents and arbitrary 20-year extensions of the copyright term have no justification, especially when objectively evaluated in light of the normative frameworks. In addition, the Microsoft case revealed some of the problems with the proprietary model for software development, which, for certain critics, threatens to enclose the Internet commons. Open source code and open access have been proposed as possible alternatives. As our discussion of the Microsoft case demonstrated, there are two basic property models in cyberspace. There are some content providers and software developers who seek almost absolute control (proprietary model) over intellectual objects. On the other hand, some legal scholars and cyberspace libertarians advocate a dissipation of property controls since the current system of rights is so disadvantageous to the robustness of the public domain (commons model). Those who embrace the commons model see an enclosure movement “fencing off” intellectual objects. They also worry about how the insistence on application of property rights in cyberspace will interfere with the evolution of the Internet and related technologies like peer-to-peer networks. What the commons model and its adherents downplay is the dynamic incentive effects of intellectual property rights. As the Supreme Court has observed, the “ultimate aim” of copyright and similar protections is “to stimulate [the creation of useful works] for the general public good” (Harper & Row Publishers v. Nation Enterterprises, 1985). Critics of intellectual property rights also fail to fully appreciate the concept of “incomplete capture,” that is, “an intellectual property owner cannot possibly appropriate all of the information (and thus social value) generated by her creation” (Wagner, 2003). Even if an intellectual object is copyrighted, there can never be complete control of that object. A protected intellectual object is not hermetically sealed off from public access. Rather, there is usually a positive spillover effect as this information is disseminated throughout society. Copyrighted works, once they are disclosed to the public, convey information, ideas, and suggestions to many others who can utilize those ideas or follow up on these suggestions without violating that copyright. Some of the information stimulated may be only indirectly or obliquely affiliated with the new creation. For example, a successful novel (and subsequent movie) like Cold Mountain engenders new investigations and discussions of the civil war. Thus, even “fully propertized intellectual goods” can contribute to the spiraling growth of information resources and thereby enhance in some limited way the public domain (Wagner, 2003). But while this fixation on control and enclosure may be exaggerated, flawed legislation such as the DMCA and particularly the CTEA remind us that policy makers are subject to capture. This leads to the unwarranted expansion of intellectual property rights that is not in the public interest. In their zeal to thwart piracy and to protect fragile digital content, there is also a threat that content providers will insist on greater control than the intellectual property system has tolerated in the past. Policy makers must find that elusive middle way that balances legitimate concerns about protecting intellectual objects with the need for a robust and renewable public domain. We admit that discerning and legislating the “right” or proportionate amount of intellectual property protection is a difficult process. A full exposition of what a moderate protection scheme would look like is beyond the scope of this chapter. But we have offered some recommendations in the course of this analysis: software platforms as a limited commons under certain conditions, shorter duration for copyright protection, more limited scope of patent coverage, thick patent protection for genuine inventions that are costly to commercialize, and so forth. Finally, as we have been at pains to insist here, while the normative frameworks may be indeterminate, they can still guide policy makers in making prudent choices that will reward creative labor and stimulate creativity while avoiding further erosion of the intellectual commons.