Property and the Public Domain

Abstract

Friends of the public domain are typically suspicious of property-talk. Property is perceived as the foe, epitomizing the threat of a shrinking public domain. I argue that this common view both misguided and unfortunate. It is misguided because the cleavage between property discourse and a thriving public domain is largely illusory: the form, the substance, and the history of property convey lessons that are rather helpful to the goal of revitalizing a rich and vibrant public domain. It is unfortunate because the concept of property has enormous rhetorical power in shaping people's expectations and therefore in the construction of what they deem normal, obvious, and thus clearly justified. For both reasons, friends of the public domain should embrace property, rather than fight it.