One of the most significant achievements of the computer age has been the rise of the free software commons – code that can be openly accessed, shared and modified by anyone. Such code lies at the heart of the Linux operating system and many software programs that run the Internet. The legal durability of such code, in turn, can be traced directly or indirectly to the GNU General Public License, or GPL, an ingenious legal innovation developed by Richard Stallman and the Free Software Foundation. The GPL assures that the energies and resources of the commons stay in the commons, and prevents companies from expropriating code and taking it private.

This Friday, February 4, is the official publication date of my new book, Brand Name Bullies: The Quest to Own and Control Culture (John Wiley & Sons). I wandered into the forbidding precincts of copyright and trademark law a few years ago at an NYU conference convened by Professor Yochai Benkler. I was astonished by what I found.

Invoking so-called intellectual property rights, large corporations, crafty entrepreneurs and authors’ estates are laying claim to virtually every intangible aspects of our culture – images, sounds, words, letters, even DNA, smells letters of the alphabet, yoga postures and silence. With the support of Public Knowledge, whose founding was also catalyzed by that May 2000 conference, I set about documenting this trend, which was hiding in plain sight. I wanted to show how the cultural commons is being quietly, relentlessly enclosed.

If you listen to the film and music industries, there is only one way to assure healthy markets and a steady flow of new creativity:  strict copyright protection.  Yet one of the most creatively robust and competitive industries in the world – fashion – does quite well, thank you, with only the most minimal copyright controls over their work. 

In apparel design, you can own your trademarked name and logo, but no one can own the creative design.  No one can own hip-hugging denims, leopard-skin bikinis or the herring-bone suit.  They are all part of a vast creative commons.  Everyone constantly borrows, modifies and transforms other people’s creative work, and the industry is richer for that fact.  There is, in fact, a whole niche of the fashion industry based on knocking-off dresses made by elite designers and worn by Hollywood starlets on the red carpet.  While knock-offs may not have the prestige of an original Chanel or Gucci dress, no one calls the copy "piracy."

Big Pharma is such a hard-driving, seemingly invincible player in global markets and policymaking that it often appears impossible to counter its influence. Now comes a fascinating new proposal that could radically change how the nations of the world could finance medical research for new drugs. Jamie Love, the brilliant strategist and director of the Consumer Project on Technology, working with dozens of influential scientists, public health officials and lawyers, has announced a new paradigm for trade policy on medical R&D.

For decades, under the current patent and trade regime, drug companies have ratcheted up the price and scope of their patent protections even though that is precisely what makes it harder to treat AIDS, malaria and many other diseases proliferating around the world, especially in developing countries. But how to get beyond this paradigm? After more than two years of discussion with an impressive list of global players, Love and others have developed a proposed medical R&D treaty that would make it easier to finance medical research on significant health problems. It would also reduce the prices of drugs that ultimately result from that research.

Even though academic science is one of the most productive commons, its fruits have increasingly been treated as private property, thanks chiefly to the Bayh-Dole Act of 1980 and other laws that allow universities to patent and license their research. The sums that universities as a whole reap from their patents are fairly insignificant – about $1.3 billion of revenues of $227 billion.

Still, most research institutions nurture the hope that they will “strike it rich” with a basic discovery. If that means converting more and more publicly financed research into private property and erecting new barriers of secrecy and patent restrictions, America’s universities have not shown much concern.

Presidential inaugurations are the kind of scripted rituals that only a numbed-out media would take seriously. I've always wondered why the Washington Post and New York Times don't assign their drama critics rather than their political reporters to cover them. They are pure theater, contrived entirely for the effect they will make. Why pretend that they are "news"?

The Bush affair yesterday did however have an unwitting candor. Not only was it scripted; it also was fenced. The peoples' event in the peoples' capital was accessible only to those who bought tickets -- who were able to buy tickets. That meant, basically, Bush campaign supporters. Others were relegated to small crevices between the grandstands. This wasn't just about security. It was about privitized democracy; and it was an emblem of an administration that wants to make everything private: the oceans, airwaves and forests; the research in our universities, the water that starts as rain and ends up in our taps .

Selling is your business, your reason for being. Then you discover that people are shopped out. They want to simplify their lives.

What do you do?

Real simple. In a marketing stroke that approaches self-parody, the whizzes at Time Warner decided that the way to deal with the urge to simplify is to turn it into – yes – something more to buy. They came up with a new “title”– as they say in the magazine trade – to guide hapless consumers through the simplicity shoals, by recommending products to help them along the way. The name: Real Simple.

Physicists and complexity theorists have a term for the moment when a liquid suddenly transforms into a gaseous state. It’s called a “phase transition.” A phase transition is not a linear, predictable change, but a sudden shift from apparent chaos and randomness to a “sweet spot” of dynamic equilibrium. The idea of a phase transition comes to mind when I look at the declining credibility and reputation of conventional mass media, especially television and radio, and the fierce proliferation of make-your-own creative genres. When will the phase transition to a new paradigm occur?

You know that the idea of the commons has come of age when free marketeers try to co-op it. That time has apparently arrived.  Two champions of "free market environmentalism" (a beaut of an oxymoron!) host The Commons Blog, which is dedicated to "the principle of promoting environmental quality and
human dignity and prosperity through markets and property rights."

The blog, run by Iain Murphy and Jonathan H. Adler, isn't really about the commons, of course. It's about the tragedy of the commons, as described in Garrett Hardin's famous 1968 essay. The Commons Blog is about the purported failures of the commons in protecting the environment, and the superiority of private property and markets in addressing that task. The site is a veritable mother lode of postings, literature and links celebrating the role of markets in protecting the environment.

For many Americans, the human dimensions of the civil rights movement was brought to life by Henry Hampton's landmark documentary Eyes on the Prize. The fourteen-part series pulled together remarkable footage of protesters being attacked by police dogs, and moving scenes of singing and oratory. The assemblage of newsreel clips, original interviews, photos and music told a story that had not really been told as powerfully before. Now this priceless historical record could be lost to contemporary memory, thanks to the long arm of copyright law.

As described by Katie Dean in Wired News (and brought to my attention by Rick Emrich) Hampton had to buy clearance rights for lots of archival footage in order to assemble the documentary. Because fair use of video clips is largely a dead letter, and buying worldwide "perpetual rights" would have been prohibitively expensive, Hampton had to pare back his ambitions and buy limited licenses for broadcast on PBS and an initial run of DVDs. Now so many of the rights clearances have expired that the documentary can no longer be publicly broadcast or even sold on DVD.