:NYU Law Review: Free as the Air to Common Use: First Amendment Constraints of the Public Domain
NYU Law Review: Free as the Air to Common Use: First Amendment Constraints of the Public Domain Jul 16, 1999, 15 :31 UTC (0 Talkback[s]) (4845 reads) (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.'"
