Licensing, public domain, Creative Commons, free software, open source software, copyright trolls, patent trolls

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Over the past several decades open license movements have proven highly successful in the software and content worlds. Such movements rely in part on the belief that greater freedom of use triggers innovative activity that is superior to what a restrictive IP approach produces. Ironically, such open license movements also rely on IP rights to promote their vision of freedom and openness. They do so through IP licenses that, while granting significant freedoms, also impose certain conditions on users such as the “copyleft” requirement in the software world. Such movements rely on this IP-based approach due to fears that, without IP rights and such conditions, a tragedy of the commons would ensue. This Article argues that this IP-based approach, while perhaps helpful in the beginning, is no longer necessary and in fact prevents the movements from reaching their full potential. The IP-based approach has this effect by causing significant transaction costs without offsetting benefits, resulting in a tragedy of the anti-commons. The IP-based approach also creates the risk of IP trolls in the future, especially in the copyright sphere. Furthermore, the resulting anti-commons is unnecessary to prevent the feared tragedy of the commons because most contributors to open movements do so for reasons that do not fit within the typical tragedy of the commons story. The Article then examines the benefits of a public domain approach and argues that such an approach would reduce the wasteful transaction costs, limit the possibility of IP trolls, still satisfy the purposes of those that contribute materials under open licenses, and better align with the normative tenets of such movements. To conclude, the Article assesses the merits of a “Public Domain Act” that would help address obstacles that currently exist in dedicating materials to the public domain and posits some theoretical implications relating to innovation based on the experiences of the open license movements and the arguments of this Article.

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