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

“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

“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.'”

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