There is a public domain, but it is small, relative to its history, and it is shrinking. Digital technology will only speed its decline. And because most are oblivious to the particular threat that digital technology poses for the public domain, the prospects for reversing this trend are not promising. On the present path, the idea of the public domain will be as familiar to our children as the intergovernmental tax immunity doctrine is to our students.
This loss of the public domain, properly understood, will be a profound loss for freedom and culture, or more precisely, free culture. It will also be persistent. For the mechanisms that will effect the elimination of this domain are not merely legal doctrines. The mechanisms are machines protected by the most powerful (if delicate) technologies of control that man has devised.
My aim in this essay is to frame a way of talking about this public domain, and to map a strategy for its defense. The defense will come both from rebuilding the public domain, properly understood, and from crafting an "effective" public domain-meaning a free space that functions as a public domain, even though the resources that constitute it are not properly within the public domain.
"Re-crafting a Public Domain,"
Yale Journal of Law & the Humanities:
3, Article 4.
Available at: http://digitalcommons.law.yale.edu/yjlh/vol18/iss3/4