Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain

@article{Benkler1999FreeAT,
  title={Free As the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain},
  author={Yochai Benkler},
  journal={Social Science Research Network},
  year={1999}
}
  • Y. Benkler
  • Published 26 August 1999
  • Law
  • Social Science Research Network
We are in the midst of an enclosure movement in our information environment. Property rights in information are increasing everywhere, and the prevailing baseline assumption is that this expansion is both efficient and just. In this article I rely on the first amendment to uncover the normative cost of embracing enclosure instead of the once dominant baseline conception that information ought to be "free as the air to common use" and subject to exclusive rights only under special circumstances… 

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References

SHOWING 1-10 OF 12 REFERENCES

at 365-68. 227 Pub. L. No. 105-304, 112 Stat. 2860 (to be codified at scattered sections of 17

  • at 365-68. 227 Pub. L. No. 105-304, 112 Stat. 2860 (to be codified at scattered sections of 17
  • 1998

Nimmer, supra note 136, at 1186-89 (arguing that idea/expression dichotomy is most important way in which copyright, internally, avoids infringing on users' First Amendment rights)

  • Nimmer, supra note 136, at 1186-89 (arguing that idea/expression dichotomy is most important way in which copyright, internally, avoids infringing on users' First Amendment rights)

stating that licensing may replace copyright with contracts ); Netanel, supra note 191

  • stating that licensing may replace copyright with contracts ); Netanel, supra note 191
  • 1997

C)(iii)). 282 See id. § 103(a), 112 Stat. at 2863-64 (to be codified at 17 U.S.C. § 1201(a)(1)(A)). 283 See id

  • D)). 284 Id. § 103(a), 112 Stat. at 2864 (to be codified at 17 U.S.C. § 1201(a)(1)(C)(iii)). NEW YORK UNIVERSITY LAW REVIEW

restating test first applied in United States v

  • restating test first applied in United States v
  • 1968

The State of Databases Today

  • The State of Databases Today
  • 1998

S. at 637-39. 80 See id. at 637-38, 640. 81 See id. at 640-41. 82 See id

  • S. at 637-39. 80 See id. at 637-38, 640. 81 See id. at 640-41. 82 See id

Brandeis, J., concurring)

  • Brandeis, J., concurring)
  • 1945

See supra Part I (defining public domain as uses privileged except where there are individualized facts, like contract, that exclude use by particular person). 309 See supra text accompanying

  • See supra Part I (defining public domain as uses privileged except where there are individualized facts, like contract, that exclude use by particular person). 309 See supra text accompanying

NEW YORK UNIVERSITY LAW REVIEW

  • NEW YORK UNIVERSITY LAW REVIEW