A similar appropriative-use vs. public-trust evaluation is playing out this year as the California State Water Resources Control Board reevaluates Los Angeles’ right to divert water from the Mono Basin in the Eastern Sierra Nevada.

The foundational case for Mono Lake as a public trust resource is National Audubon Society v. Superior Court (1983) [1]. The California Supreme Court evaluated appropriative water rights against the public trust doctrine, took both arguments to their logical extremes, and decided that neither was acceptable in itself.

In a pretty jaw-dropping passage, the Court summarized the Los Angeles Department of Water and Power’s position in relation to appropriative use of water diverted from a unique ecosystem hundreds of thousands of years old:

> Defendant DWP, on the other hand, argues that the public trust doctrine as to stream waters has been "subsumed" into the appropriative water rights system and, absorbed by that body of law, quietly disappeared; according to DWP, the recipient of a board license enjoys a vested right in perpetuity to take water without concern for the consequences to the trust.

The decision in Audubon rejected LADWP’s argument, but it remains a stark example of the beneficiary of a public resource recasting a conditional public license as a permanent private entitlement, apparently free from consequence of accountability for harm inflicted on the public trust.

I think this appropriative-use vs. public-trust/public-benefit discussion is going to define the coming decades. The landscape remains unsettled as it applies to water (especially in a changing climate), much less to data in a period of rapidly evolving technology.

With respect to data, progress could be made by formally establishing a public corpus as an accessible commons, with clear expectations and rights around individual contributions made to third-party platforms. Publicly funded research is still often locked behind paywalls. The contents of the Library of Congress, special collections, municipal libraries, university archives, and museums are publicly owned or publicly supported, yet remain largely inaccessible to the general public.

I expect the “leader” in LLM performance to keep changing, but the accumulated genius of public knowledge to remain far more durable, with periodic and incremental additions. Fighting over small reparations for every scraped post seems less transformative than building a public knowledge commons that anyone can use, converse with, search, train on, and learn from.

reCAPTCHA began as a tool that simultaneously authenticated users while helping verify OCR for the backlog of The New York Times and Project Gutenberg. Maybe it is time for a similar public project to digitize and make accessible the body of public knowledge without surreptitious and ethically dubious appropriation of copyrighted works. Authors, writers, and shitposters could opt in as desired.

I would take a public resource like that well ahead of a few bucks of compensation for my decades of shitposting, just as I'd take a thriving Mono Lake well ahead of compensation for it being relegated into lifeless alkali flat via appropriative water rights.

The Private Capture of Public Genius