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"Intellectual property has become the Dodge City of property—wild and out of control but wonderfully exciting and innovative." Carol M. Rose, The Several Futures of Property, 83 Minn. L. Rev. 129, 144 (1998). Many scholars contest the notion that intellectual matters should be reduced to property at all. According to Rose, "intellectual property scholars...have long and heatedly debated whether or when the goal of this field—the encouragement of useful creativity—is better served by treating intellectual productivity as property, or (at least to some degree) as part of a commons that is open to all comers." Id. at 145. Not surprisingly, the development of the "information superhighway" has had a major impact on this debate. The Internet has created an expectation that information will be cheaply and easily accessible. Because the Internet serves as a socializing institution and facilitator of free speech it should be considered "inherently public property". The government holds "inherently public property" in trust and has only limited abilities to divest the public of its trust rights. The government violated the public trust when it passed the Copyright Term Extension Act (CTEA). The CTEA removed from the public domain property without providing the public a reciprocal benefit. The CTEA frustrated the public's expectation that it would be able to access material via the Internet that was to fall into the public domain this year.
Digital technology has created an emerging global marketplace for information, products, and services. The idea of being able to call up news articles, short stories, photographs, motion pictures, sound recordings, and other information any time, day or night, from anywhere in the world has sent the stocks of Internet enterprises soaring and propelled companies such as Microsoft. See Pamela Samuelson, The Digital Rights War, The Wilson Quarterly, Vol. 22, No. 4 (October 1, 1998). The great virtue of digital information is that it is cheap and easy to disseminate once it has been produced. Because it is inexpensive to reproduce material on the Internet, the public is able to access books and other information that would not be published due to lack of demand. For example, the plaintiff in Eldred v. Reno posts literary works on the Internet to make them freely available to everyone in the world. Eldritch Press posts works as soon as they enter the public domain. Because some of the works Eldritch Press posts are not included in library collections, or are long out of print, they are not obtainable by the public in any other way. The advent of the Internet has increased the social costs of extending the copyright not only because copyright extension frustrates the public's expectation of access, but also because it increases the difficulty of obtaining material that is unprofitable for a publisher to publish. Internet sites such as Eldritch Press perform valuable public services by preserving works that otherwise would be forgotten.
Traditionally, property has been labeled "inherently public" if it provides a forum for political speech (the town square) or if it is necessary to serve a socializing practice (beach front property). The Internet, although not a traditional form of property, should be considered "inherently public property" because it facilitates the dissemination of ideas and serves a socializing purpose. The Internet's ability to disseminate political speech is obvious and can be seen by the emergence of cyber political analysts such as Matt Drudge. The importance of free speech in a democracy is also obvious. As Rose notes "[t]he more ideas we have through free speech the more refined will be our understanding and the better our self-governance." Carol Rose, The Comedy of the Commons, 53 U. Chi. L. Rev. 711, 778 (1986). Recently there have been hints that places necessary for political speech should be protected as "inherently public". In Members of City Council v. Taxpayers for Vincent, Justice Brennan suggested in dissent that certain publicly owned properties are uniquely suitable for the dissemination of political ideas and thus should be held open to the public. Brennan's position is based on the notion that some activities, such as speech, require that they occur in certain places in order to be effective. According to Rose, Brennan's position in Taxpayers could be stated as a public trust concept: "this property [property on which political speech takes place] is needed for the public's political communication, thus governments hold the property in 'trust' for this communication, and have only limited abilities to divest the public of its trust rights." Id. As this web page demonstrates, cyberspace certainly encourages and facilitates robust political debate and the dissemination of ideas. The Internet allows people with varied backgrounds, political views, and economic situations to engage in national—even international—debate on almost any topic. In fact, the Internet, more than any other public forum, approximates Holmes's ideal of the "marketplace of ideas." Speech in parks is constrained by time and place. Only those present in the park at the time the speaker speaks hear what was said. Also, speech in parks usually fails to engage a wide range of views. People from different neighborhoods usually attend different parks. Also, if a national issue is being discussed in a park in a rural Iowa town, it is unlikely that the perspective of a person living in New York City will be represented. The Internet, however, overcomes these limitations by allowing people to engage in political debates from anywhere in the world at their leisure. Because of its increasingly prominent role as a facilitator of free speech and its ability to allow socializing among diverse groups of people, cyberspace ought to be viewed as an inherently public property.
If cyberspace is considered an "inherently public property," the government violated the public trust by taking from the public and returning to private individuals those materials which would have entered the public domain, and thus have been available via the Internet, if not for the CTEA. By passing the CTEA, the government neglected its duties as guardian of the Internet. The purpose of the Internet is to store information in the public domain for dissemination. By passing a law that takes material from the public domain and deprives the public of material it had an expectation of receiving via the Internet, Congress acted in violation of its role as trustee of the Internet and thus violated the public trust.
| Last modified April 11, 1999. | Berkman Center for Internet & Society |