“The internet has dramatically lowered the cost of copying, including illicit copying. When the web was first weaved in the 1990s, intellectual-property owners found their property had, involuntarily, been turned into a common. Strong new copyright rules and draconian enforcement seemed to be necessary to tame the rebellious digital commoners and reclaim the level of control that had existed in an analogue world.
These arguments found a receptive audience among policymakers worldwide, and copyright’s scope, duration and penalties were dramatically expanded. Over the past two decades new legal rights have allowed “digital fences” to be used to surround copyrighted works, even if those fences interfered with people’s rights, such as to freely use snippets of content (the legal doctrine of “fair dealing,” known as “fair use” in America). Copyright’s restrictions were also misused to curtail competition, block research on cryptography and produce new online monopolies. Again, the “solution” to the tragedy of the commons—property rights—came with hefty costs.
You could consider the growing restrictions around intellectual property as “the second enclosure movement”. The first enclosures were the centuries-long waves of expropriation of English and Scottish common lands, turning them over to a handful of landowners….
Yet just as Hardin’s argument met with pushback from Ostrom and others in the physical context, there has also been powerful intellectual resistance to the second enclosure movement. Most notably, some of the problems of the terrestrial commons do not apply to the intangible versions: it is hard to overfish an idea….
Consider open-source software. It is precisely because the licence guarantees that the commons will remain open, and that each new contribution will be shared under the same terms, that people can commit to using it. Imagine trying to get phone manufacturers to use the Android operating system if Google could take it private at any time….
Furthermore, the proliferation of property rights has its costs. The American legal scholars Michael Heller and Rebecca Eisenberg call it the “anti-commons”: the idea that innovation withers because of too many property rights, patent thickets, exhaustive and exhausting copyright licensing procedures and the like. To take one example, the smartphone in your pocket is covered by between 5,000 and 15,000 patents, and potentially by as many as 250,000 when all related patents are counted. …”