The Romance of the Public Domain

Since Hardin, law and economics scholars have launched a crusade to expose the evil of the commons—the evil, that is, of not propertizing. Progressive legal scholars have responded in kind, exposing the perils of propertization. With the rise of the Information Age, the flashpoint debates about property have moved from land to information. The public domain is now the cause celebre among progressive intellectual property and cyberlaw scholars, who extol the public domain as necessary for sustaining innovation. But scholars obscure the distributional consequences of the commons. They presume a landscape where every person can reap the riches found in the commons. This is the romance of the commons—the belief that because a resource is open to all by force of law, it will indeed be equally exploited by all. But in practice, differing circumstances— including knowledge, wealth, power, access, and ability—render some better able than others to exploit a commons.