The Second Enclosure Movement

James Boyle · Law and Contemporary Problems · 2003 · Read the original (Duke)

The analogy

Between 1750 and 1850, the English Parliament passed thousands of enclosure acts. Common land — fields, forests, pastures that villages had shared for centuries — was fenced off and privatized. The legal justification was efficiency: private owners would improve the land. The social cost was displacement: the people who depended on the commons lost access to it.

Boyle argues that the same process is happening to intellectual goods. Patents expand in scope. Copyright terms extend. Database rights emerge. Trade secrets proliferate. Each expansion fences off another piece of the public domain. The justification is the same: private ownership creates incentives to produce. The cost is the same: the people who depended on the commons lose access to it.

The analogy is not metaphor. It is structural. The legal mechanisms differ — property deeds versus patent claims — but the dynamic is identical. A shared resource is partitioned into private holdings, justified by an economic theory about incentives, at the expense of uses that only a commons enables.

The public domain is not leftovers

This is Boyle's sharpest point. The conventional view treats the public domain as a remainder: whatever is left after intellectual property rights are assigned. Unowned, unvalued, the scraps that fell off the table.

Boyle inverts this. The public domain is a positive, productive resource. It is the soil from which new creation grows. Shakespeare drew from common stories. Scientists build on published findings. Software engineers use open protocols. The commons is not the absence of property; it is the precondition for the kind of creation that property alone cannot produce.

Enclosure doesn't just transfer ownership. It destroys collaborative uses that only commons enable. A fenced field can still grow crops, but it can't sustain the village that grazed cattle on it collectively. A patented gene sequence can still be studied, but not by the graduate student who can't afford the license. The loss is not visible in the ledger of the new owner. It shows up in the work that never gets done.

The economic flaw

The first enclosure had a physical justification. Common land is rivalrous: if my cattle graze the field, there is less grass for yours. Garrett Hardin formalized this as the tragedy of the commons in 1968. Without property rights or regulation, shared resources get overused. Enclosure was one solution.

Intellectual goods are non-rivalrous. My reading a paper does not prevent your reading it. My using an algorithm does not degrade it. The tragedy of the commons does not apply because the resource is not consumed by use. You can graze as many cattle as you want on an idea and it never runs out of grass.

The economic case for intellectual property rests on a different argument: without the promise of monopoly profits, creators won't produce. This is an empirical claim, not a logical necessity. And the evidence is mixed. Open-source software, Wikipedia, academic publishing — some of the most productive knowledge systems in history operate without enclosure, or with minimal enclosure.

Boyle's point is that the legal framework imports the intuitions of physical property into a domain where those intuitions don't apply. We fence off ideas as if they were fields, using a logic designed for a world where resources are scarce. Ideas are not scarce. The law pretends otherwise.

The recurring pattern

Each new technology creates a new commons. Printing made texts reproducible. Radio made broadcasts public. The web made everything linkable. And each commons gets enclosed by the next wave of property rights. Copyright responded to printing. Broadcast licensing responded to radio. Digital rights management responded to the web.

The question is not whether it happens. It always happens. The question is whether anything structural can prevent it, or at least slow it enough for the commons to produce value before the enclosure completes.

Boyle doesn't answer this definitively, but he identifies the precondition for an answer: you have to recognize the public domain as something worth defending. As long as it's treated as a remainder — the absence of property, the void between fences — no one will fight for it. The first step is seeing it as a resource with its own productive logic, one that enclosure destroys.

The commons doesn't survive on goodwill. It survives on legal architecture that makes enclosure costly. CC BY-SA-NS is one answer: a license clause that triggers copyleft when the work is served through a proprietary interface. CC BY-SA-NS