Tollbooths of the Mind


June 27, 2002
Christian Science Monitor


Browse in Commons Intellectual Property

If one thing is central to the idea of America, it is the ability to breathe freely in the atmosphere of the mind. Thomas Jefferson was the champion of this ideal, and he saw that government was not the only threat to it. Taken too far, private property could shackle freedom, too, as the slaves from Africa knew only too well.

“If nature has made any one thing less susceptible than all others of exclusive property,” Jefferson wrote, “it is the action of the thinking power called an idea.”

Share money and you have less; share an idea and you still have it, and more. Jefferson practiced what he preached, in this respect at least. As the nation’s first commissioner of patents, Jefferson did not grant these monopolies easily or eagerly. He accepted the need for copyrights and patents, but strictly limited in extent and time.

The aim always was to enrich the public domain – the commons of the mind – not to line the pockets of a privileged class of monopolists of ideas. Jefferson actually refused to patent his many inventions, because he believed invention to be the property of humankind.

This vision prevailed in America for two centuries, more or less. The result was more enterprise, research, and invention than the world had ever seen. The nation had its share of patent hounds, Thomas Edison not least of them. But in the realm of science, the Jeffersonian ethos prevailed. Jonas Salk, who discovered the first polio vaccine, once was asked who would own the new drug. “There is no patent,” Salk replied. “Could you patent the sun?”

Today, that question would not be rhetorical. Fences and tollgates are rising rapidly on Jefferson’s commons of the mind. Copyright and patent monopolies have gone far beyond what he and other Founders intended. Corporations now are claiming ownership of everything under the sun, if not the sun itself: body parts, business practices, the genetic code. They even are claiming ownership of the English language. McDonald’s has asserted trademark claims to 131 common words and phrases, such as “Always Fun” and “Made For You.”

Supposedly, this patent frenzy serves as an incentive for invention and discovery. But more often the opposite is the case. Researchers now must navigate a minefield of competing patent claims. One new virus-resistant strain of rice can’t be sold because of the need to get approvals from so many different patent holders. In university research labs secrecy and paranoia have replaced collegiality. At MIT some graduate students don’t want to defend their theses for fear of revealing proprietary information.

As for copyright, the original term was 14 years. Now, it is the lifetime of the author plus 70 years. If this expansion has brought a corresponding improvement in literary quality, it is not apparent from the bestseller lists.

The place where fences are going up most rapidly is on the World Wide Web. The Web began much like America itself – as a commons, a vast town square that is open to all. The idea, observes Prof. Lawrence Lessig of Stanford Law School, was “never to allow anyone to decide what would be allowed.”

Then the hucksters moved in. Web portals became top-loaded with commercial links and come-ons. Ads started to assault us on all sides. Even search engines turned into payola stations, steering us to sites that pay for feature listing.

These are mere annoyances, however, compared with what’s coming next: the computer as informational Coke machine, on which we have to pay for every view. As publishers move increasingly to the Web, for example, they will be able to restrict not just access, but downloading and printing as well. With books and magazines, we can pass these along to friends, or quote passages in articles, or copy pages for research. Copyright is tempered by the doctrine of “fair use.” The commons of ideas flourishes.

Electronic publishing could put an end to that. The commons of ideas would become a gated community with a tollbooth at every entrance. The public library as we know it could become a thing of the past. When Simon & Schuster sold a Stephen King novella on-line, public libraries couldn’t get it, since they would make it available to borrowers free of charge. There is resistance to these trends, of course. Yet inch by inch, Jefferson’s vision for America is turning upside down, at the price of our prosperity and freedom both.

So add another chapter to the overreaching of the ’90s, this time with a large and tragic theme.

Not for the first time in history, yesterday’s answer has become today’s problem. Centuries ago the concept of property emerged as a means of liberation. It helped to break the shackles of royal power, and served as a bulwark against the impositions of the state. But as Jefferson intuited, taken too far, property becomes another version of what it once opposed – a touchstone of self-justification, an excuse for self-seeking and greed.

The challenge now is to restore the balance between the private and the commons that the Founders sought to establish. “If communism versus capitalism was the struggle of the 20th century,” Professor Lessig writes, “then control versus freedom will be the debate of the 21st.”

Jonathan Rowe is a fellow at the Tomales Bay Institute, and a former Monitor staff writer.