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NYU Law Review: Free as the Air to Common Use: First Amendment Constraints of the Public Domain

Jul 16, 1999, 15:31 (0 Talkback[s])
(Other stories by Yochai Benkler)

"Our society increasingly perceives information as an owned commodity. Professor Benkler demonstrates that laws born of this conception are removing uses of information from the public domain and placing them in an enclosed domain where they are subject to an owner's exclusive control. Professor Benkler argues that the enclosure movement poses a risk to the diversity of information sources in our information environment and abridges the freedom of speech. He then examines three laws at the center of this movement: the Digital Millennium Copyright Act, the proposed Article 2B of the Uniform Commercial Code, and the Collections of Information Antipiracy Act. Each member of this trio, Professor Benkler concludes, presents troubling challenges to First Amendment principles."

"The adoption of an open source strategy by companies such as Netscape and Sun Microsystems is an example. Let's call this the scholarly lawyer strategy. These organizations, like romantic maximizers, obtain information inputs from the public domain and by purchase where necessary. Unlike romantic maximizers, they do not sell their information outputs. They explicitly produce them for free distribution, so as to maximize utilization, and maximize the effect on the positively correlated market."

"The last strategy lumps together nonmarket actors, often described as indispensable to a society's information production sector. These include universities and other research institutes, government research labs, individual academics, and authors and artists playing to immortality, or, to use the increasingly persuasive case of noncommercial development of the Linux operating system, 'egoboo.'"

Abstract with complete article in PDF format.