Free as the Air to Common Use: First Amendment Constraints on Enclosure 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 principles.