Ray Gifford has written an excellent a historical perspective on the property rights and commons debate in the digital sphere. He hearkens back to the Parliamentary enclosure movement of the 18th century in Britain to point out that
The private decisions of multiple individuals will deliver an order in the face of uncertainty much better than a government regulator or legislator. What’s more, liberty is protected by these property rights vesting with private parties. The small inventor, the obscure creator, the innovator in his garage is protected by property rights from both confiscation by the government and the depredations of larger private entities. It is administrative state where large entities go to foreclose paths to new entrants. Indeed, I would submit that it has been the new legal and political innovations – namely, the 20th century’s embrace of pervasive administrative regulation – that has proven itself a failure, a rentseekers’ paradise and the domain where legislative, not rule-of-law, regulation thrives. Accordingly, if we are going to look for answers to the questions of the digital revolution, we will find them, I submit, best answered and channeled through the answers of the agricultural and industrial revolutions, from our heritage in common law doctrines of property and contract, and not from visions of a harmonious commons in cyberspace.
Yes. And no. Where the rubber hits to road (to use a horribly non-digital metaphor), private property rights are costly to define and enforce. When definition and enforcement costs outweigh the benefits of the definition and enforcement, property remains a commons. But of course this is a continuum, not a binary choice between private property rights and open access. We define use rights of varying degrees all the time, and the costs and benefits of the definition and enforcement of the rights determine where on the continuum the particular case ends up.
Even in that nuanced and complex environment of different degrees of commons for different cases, Ray’s point about the superiority of common law to administrative law is valid.