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18 Yale J.L. & Human. 56 (2006)
Re-Crafting a Public Domain

handle is hein.journals/yallh18 and id is 400 raw text is: Re-crafting a Public Domain

Lawrence Lessig*
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
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.
The frame connects directly with work done long before the digital age
that aimed to understand, or more precisely, to correct a misunderstanding
about the commons. Yet that work, too, shares a pre-digital blindness to
the problems that digital technologies create for a commons, as well as a
blindness about the usable tools to correct them. Put most concisely, the
reformers too are too wedded to pre-digital truths. Until they become
comfortable recommending strategies that in the pre-digital age they
(rightly) condemned, we will make little progress in stopping the current
Professor of Law, Stanford Law School. Thanks to Richard Craswell and Mark Lemley for
comments on an earlier draft. This essay is licensed under a Creative Commons Attribution-
Noncommercial license. See http://creativecommons.org/licenses/by-nc/2.5/.

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