The Public Domain – Enclosing the Commons of the Mind

Preface: Comprised of at Least Jelly?

Each person has a different breaking point. For one of my students it was United States Patent number 6,004,596 for a “Sealed Crustless Sandwich.” In the curiously mangled form of English that patent law produces, it was described this way:

A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed be- tween the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is pre- vented from radiating outwardly into and through the bread portions from the surrounding peanut butter.

“But why does this upset you?” I asked; “you’ve seen much worse than this.” And he had. There are patents on human genes, on auctions, on algorithms. The U.S. Olympic Committee has an expansive right akin to a trademark over the word “Olympic” and will not permit gay activists to hold a “Gay Olympic Games.” The Supreme Court sees no First Amendment problem with this. Margaret Mitchell’s estate famously tried to use copyright to prevent Gone With the Wind from being told from a slave’s point of view. The copyright over the words you are now reading will not expire until seventy years after my death; the men die young in my family, but still you will allow me to hope that this might put it close to the year 2100. Congress periodically considers legislative proposals that would allow the ownership of facts. The Digital Millennium Copyright Act gives content providers a whole array of legally protected digital fences to enclose their work. In some cases it effectively removes the privilege of fair use. Each day brings some new Internet horror story about the excesses of intellectual property. Some of them are even true. The list goes on and on. (By the end of this book, I hope to have convinced you that this matters.) With all of this going on, this enclosure movement of the mind, this locking up of symbols and themes and facts and genes and ideas (and eventually people), why get excited about the patenting of a peanut butter and jelly sandwich? “I just thought that there were limits,” he said; “some things should be sacred.”