The Fable of the Commons: Exclusivity and the Construction of Markets in Cyberspace and Real Space

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The propertization of intellectual property law has lead to the growing exclusivity of rights and concentration of markets in various intellectual property intensive contexts, such as the Internet. The twin trends of propertization and exclusivity are based on a false conception of the commons, as derived from Garret Hardin’s tragedy of the commons.

I argue that the activities of the intellectual property commons are very different from the activities of Hardin’s commons. As a result, legal institutions need to reflect the activities of discovery and creation associated with the intellectual property commons. An activities focused approach to institutional design, I further argue, requires consideration of both distributive values and efficiency mindedness in constructing intellectual property law and markets.

I focus on three distributive values, distributon among creators, between creators and users, and across generations. The normative criteria grounded in distributive justice are used to assess the current law on fair use and secondary liablity, particularly as applied to the legal treatment of file sharing and copyright on the Internet.