A Case for the Public Domain

Asay, Clark D.

doi:10.2139/ssrn.2201066

Cited by 3 publications

(2 citation statements)

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“…They also align with legal scholarship on “the right to include” that emphasizes the social dimensions of property, including the ways in which “ownership can be inclusive, rather than exclusive; [] can facilitate cooperation, not just result in conflict; and [] frequently promotes human sociability, not atomistic individualism” (Kelly 2014 , 861). Indeed, our interviewees’ dissatisfaction with existing mechanisms for achieving sharing objectives is consistent with Chien’s ( 2016a , 1099) conclusion that there are opportunities for innovation in “licensing or giving away exclusive rights and, more generally, for disavowing exclusive uses of intellectual property.” To fill this gap, in the patent context, legal scholars have proposed pathways to enable public domain dedication (Asay 2013 ), including via defensive publication (Contreras 2011 ; Chien 2016b ), and to legitimize pledges to waive patent rights (Merges 2004 ; Contreras 2015 ). Some of these solutions might be implemented by projects adopting commons architecture and norms, whether modeled after existing medical information commons (such as the U.S. National Institutes of Health’s All of Us program) or proposals for non-profit data cooperatives (Blasimme, Vayena, and Hafen 2018 ), consumer-driven health data commons (Evans 2016 ), or blockchain-facilitated data platforms (Shabani 2019 ) that envision involvement of lay contributors in governance decisions and, in some cases, enforceable rules for providing credit to data producers.…”

Section: Discussionmentioning

confidence: 99%

“Idealists and capitalists”: ownership attitudes and preferences in genomic citizen science

Guerrini

Contreras

Brooks

et al. 2022

New Genetics and Society

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The perspectives of genomic citizen scientists on ownership of research outputs are not well understood, yet they are useful for identifying alignment of participant expectations and project practices and can help guide efforts to develop innovative tools and strategies for managing ownership claims. Here, we report findings from 52 interviews conducted in 2018 and 2019 to understand genomic citizen science stakeholders’ conceptualizations of, experiences with, and preferences for ownership of research outputs. Interviewees identified four approaches for recognizing genomic citizen scientists’ ownership and related credit interests in research outputs: shared governance via commons models; fractional ownership of benefits; full and creative attribution; and offensive and defensive patenting. Interviewees also agreed that the model selected by any project should at least maximize access to research outputs and, as appropriate and to the extent possible, broadly distribute rights of control and entitlements to research benefits.

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Section: Discussionmentioning

confidence: 99%

“Idealists and capitalists”: ownership attitudes and preferences in genomic citizen science

Guerrini

Contreras

Brooks

et al. 2022

New Genetics and Society

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“…Because of these possible effects, savvy companies are careful in their uses of and contributions to FOSS. They often implement processes for reviewing all uses of and participation in FOSS projects (Asay, 2013). Most sophisticated companies require multiple levels of approval before an employee can participate in a FOSS project or use FOSS materials in the company's products or services (Id.).…”

Section: The Foss Movement's Commercializationmentioning

confidence: 99%

Software's legal future

Asay

2022

Front. Res. Metr. Anal.

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The software industry's history is also its future. Its history has been defined by both abundance and scarcity, and its future will be, too. In the 1970s and 80s, perceived software scarcity led U.S. legislators to formally grant intellectual property protections to software creators. Later, a different kind of scarcity—a lack of access to source code—led the founders of the free and open source software movement to flip intellectual property protections on their head in an effort to better promote abundance. That movement proved wildly successful, with today's software industry based on vast amounts of freely available open source software resources that both organizations and individuals collaboratively build. Abundance and scarcity will also define software's future, but in different ways. The abundance that the open source software movement spawned is in the midst of a significant commercial phase. That sometimes means that commercial competitors bring to the table a scarcity mindset that conflicts with the norms that made that movement so successful. Intellectual property concerns at times derail what may otherwise be even greater software abundance. And because so much software is moving into the Cloud, trade secrecy may become the software industry's most important form of intellectual property to the extent the industry abandons open models of innovation. The software industry's growing dependence on artificial intelligence (AI) is likely to contribute to these trends. The software industry is increasingly becoming synonymous with the AI industry, as more and more software companies either rely on AI in running their services or provide AI products to the public. As with all software, these AI technologies are increasingly provided from the Cloud, where trade secrecy is not only possible, but often preferable. But trade secrecy may be even more likely in the AI context because much of the magic in implementing AI systems lies in the know-how to piece them together from available open source software resources, decades-old AI techniques, and data. Hence, to the extent that software and AI technologists spurn open innovation in favor of a scarcity mindset, trade secrecy is likely to become its dominant form of legal protection. The advent of web3 technologies may eventually change some of these trends. But for now, increasing secrecy seems the most likely outcome. I conclude by arguing that this shift to secrecy is likely preferable to other forms of intellectual property.

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A Doctrine of the Public Domain

Peukert

2016

SSRN Journal

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A Case for the Public Domain

Cited by 3 publications

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“Idealists and capitalists”: ownership attitudes and preferences in genomic citizen science

“Idealists and capitalists”: ownership attitudes and preferences in genomic citizen science

Software's legal future

A Doctrine of the Public Domain

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