The Public's Domain: The Evolution of Legal Restraints on the Government's Power to Control Public Access Through Secrecy or Intellectual Property

Abstract

The concept of the public domain is the focus of a firestorm of debate, precipitated by some of the most important controversies of our digital age. This debate, however, is deeply flawed in two critical respects. First, the debate has invoked the public domain without a clear understanding of the origin of the term and the first principles courts enunciated in recognizing the concept. Second, the debate has focused almost exclusively on intellectual property law in analyzing the public domain, ignoring the many uses of the term in other areas of law, such as First Amendment rights of access, government secrecy agreements, espionage, the Freedom of Information Act, and regulations governing classified information and munitions lists. This Article aims to correct these two shortcomings in the current debate by tracing the historical development of the concept in intellectual property law and in the areas of law involving government secrecy. This analysis is critical for evaluating not only the government's recent expansions of the scope of intellectual property, but also the government's increased use of secrecy, post 9/11, including in the detention of enemy combatants, deportation of aliens, and removal of materials from government websites. Drawing upon modern evolution theory and Bruce Ackerman's theory of constitutional moments, the Article shows how the various uses of the public domain in intellectual property law and government secrecy cases are all related in origin, structure, and function, and concludes by suggesting how the concept of the public domain may now lie in threat of extinction.

Keywords: public domain, copyright, patent, trademark, trade secret, intellectual property, First Amendment, evolution, FISA, enemy combatant, Internet, government secrecy, deportation hearing, public information, Bruce Ackerman, constitutional moment, September 11, 9/11, Eldred, Golan, public property, public ownership, espionage, right of access, FOIA, classified information, Copyright Clause, punctuated equilibrium, commons, DMCA, secret hearing, term extension, restored copyright

JEL Classification: K1, K2, K3