…to paraphrase what Belloq says to Indiana Jones in Raiders of the Lost Ark. The problem with a rights-based liberalism is precisely that it is not and never can be the end of history, that it is never secure or stable, that every liberty claimed through toil and protest, no matter how acclaimed and cherished and generative, is one day away from the firing line when some powerful interest decides that some right or practice is inconvenient.
It doesn’t even matter if the end of a right, a freedom, a possibility will ultimately hurt that powerful interest. The contemporary businesses who have registered a powerful stake in exceptionally restrictive monopolies over intellectual property have themselves been enormous beneficiaries of a conception of the public domain as a fundamental and irreversible right of a free society. No matter: they would now see it ended. Better to kill the future than live in a present where you can only have two Ferraris in the driveway.
Hollywood and the music industry have tried repeatedly to kill media technologies and practices which ultimately have returned them enormous profits. I have in my basement industry-produced videotapes that if Jack Valenti had had his way would never have been sold to me. There was money that left my pocket and went to the businesses he represented. And yes, I have videotapes I recorded off of television. Many of those I purchased in another media format later precisely because having videotapes sustained my desire to have those films and shows available for viewing. Videotaping (or making audio tapes) was the precondition of the explosive growth of a market for older visual culture as a consumer commodity. Think back to the early years of television: it never occurred to any of the people producing and owning that intellectual property that it might have value in the future. The more that we have been able to buy and copy, the more that we want. And much of the time, the more that we will pay for.
Enclosures don’t just hurt the commons, they ultimately hurt the new lords of the manor. This is part of the point of rights, of limited government, of checks and balances: that to safeguard the future even of the powerful, you have to restrain everyone from getting everything they think they want right here, right now.
What’s increasingly apparent about law, rights and liberties in the United States is that we have lived in our times in a bubble, an interregnum, a moment where some agencies and operations of the U.S. government, most particularly the Supreme Court of the United States, have moved to align the operations of law and authority with a properly expansive vision of human freedoms and Constitutionally-protected rights. That moment is passing, the pendulum swinging to more Gilded Age norms of brutalist law enforcement, oligarchic license, and an open sanction to the use of military power at the whim of the executive.
Nowhere is this clearer than with intellectual property and the public domain. The Court’s majority in the Golan v. Holder decision are only the stone that seals the tomb, not the murderers who slit its throat. Which means what it has always meant: that those of us who believe in a public domain, whose professions are defined by a sacred commitment to its existence, whose lives were enriched by its existence, will have to fight every day forever to bring it into resurrected glory and then to hold dear its life when we do so. Waiting for the Court, the Congress, the President, the government, the powers-that-be, to live up to the trust they hold, or even to recognize where their own long-term self-interests lie, isn’t good enough. It was comforting for a time to see justice and freedom advance from those precincts, but that led to leaving the door unlocked for burglars.