1984; see Orwell's Revenge: The 1984 Palimpsest (New York: Maxwell Macmillan International, 1994). But this is a weak basis on which to build liberty, especially as the cost of networked control drops. Frances Cairncross (The Death of Distance: How the Communications Revolution Will Change Our Lives [Boston: Harvard Business School Press, 1997], 194–95) effectively challenges the idea as well.
Lessig, The Future of Ideas: The Fate of the Commons in a Connected World , 19–23.
A founding work is David Lange, 'Recognizing the Public Domain,' Law and Contem- porary Problems 44 (1981): 147. There are many important foundations, however, to this argument. See, for example, Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia University Press, 1967). Gordon ('Fair Use as Market Failure') argues that the courts should employ fair use to permit uncompensated transfers that the market is incapable of effectuating; see also Wendy J. Gordon, 'On Owning Information: Intellectual Property and Restitutionary Impulse,' Virginia Law Review 78 (1992): 149. In 'Reality as Artifact: From Feist to Fair Use' (Law and Contemporary Problems 55 5PG [1992]: 93, 96), Gordon observes that, while imaginative works are creative, they may also comprise facts, which need to be widely available for public dissemination. Gordon's 'Toward a Jurisprudence of Benefits: The Norms of Copyright and the Problem of Private Censorship' (University of Chicago Law Review 57 [1990]: 1009) is a discussion of the ability of copyright holders to deny access to critics and others; see also Wendy Gordon, 'An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory,' Stanford Law Review 41 (1989): 1343.
In the first edition to this book, in addition to Boyle, I acknowledged broadly the work that had informed my understanding, including Keith Aoki, 'Foreword to Innovation and the Information Environment: Interrogating the Entrepreneur,' Oregon Law Review 75 (1996): 1; in '(Intellectual) Property and Sovereignty,' Aoki discusses the challenges to the traditional concept of property that arise from the growth of digital information technology; in 'Authors, Inventors, and Trademark Owners: Private Intellectual Property and the Public Domain' (Columbia-VLA Journal of Law and the Arts 18 [1993]: 1), he observes the shifting boundaries in intellectual property law between 'public' and 'private' realms of information and argues that trends to increase the number of exclusive rights for authors are converting the public domain into private intellectual property and constraining other types of socially valuable uses of expressive works that do not fit the 'authorship' model underlying American copyright traditions; he also argues that recent expansion of trademark law has allowed trademark owners to obtain property rights in their trademarks that do not further the Lanham Act's goal of preventing consumer confusion. Benkler, 'Free as the Air to Common Use'; Yochai Benkler, 'Overcoming Agoraphobia: Building the Commons of the Digitally Networked Environment,' Harvard Journal of Law and Technology 11 (1998): 287; Julie E. Cohen, 'Copyright and the Jurisprudence of Self-Help,' Berkeley Technology Law Journal 13 (1998): 1089; Julie E. Cohen, 'Lochner in Cyberspace: The New Economic Orthodoxy of `Rights Management,'' Michigan Law Review 97 (1998): 462; Julie E. Cohen, 'Some Reflections on Copyright Management Systems and Laws Designed to Protect Them,' Berkeley Technology Law Journal 12 (1997): 161, 181–82; Julie E. Cohen, 'Reverse-Engineering and the Rise of Electronic Vigilantism: Intellectual Property Implications of `Lock-Out' Programs,' Southern California Law Review 68 (1995): 1091. Niva Elkin-Koren, 'Contracts in Cyberspace: Rights Without Laws,' Chicago-Kent Law Review 73 (1998); Niva Elkin-Koren, 'Copyright Policy and the Limits of Freedom of Contract,' Berkeley Technology Law Journal 12 (1997): 93, 107–10 (criticizing the ProCD decision); Niva Elkin-Koren, 'Cyberlaw and Social Change: A Democratic Approach to Copyright Law in Cyberspace,' Cardozo Arts and Entertainment Law Journal 14 (1996): 215; in 'Copyright Law and Social Dialogue on the Information Superhighway: The Case Against Copyright Liability of Bulletin Board Operators' (Cardozo Arts and Entertainment Law Journal 13 [1995]: 345, 390–99), Elkin-Koren analyzes the problems created by applying copyright law in a digitized environment. In 'Goodbye to All That — A Reluctant (and Perhaps Premature) Adieu to a Constitutionally Grounded Discourse of Public Interest in Copyright Law' (Vanderbilt Journal of Transnational Law 29 [1996]: 595), Peter A. Jaszi advocates the development of new, policygrounded arguments and constitutionally based reasoning to battle expansionist legislative and judicial tendencies in copyright to diminish public access to the 'intellectual commons'; see also Peter A. Jaszi, 'On the Author Effect: Contemporary Copyright and Collective Creativity,' Cardozo Arts and Entertainment Law Journal 10 (1992): 293, 319–20; Peter A. Jaszi, 'Toward a Theory of Copyright: The Metamorphoses of `Authorship,'' Duke Law Journal 1991 (1991): 455. On the misuse of copyright, see Mark A. Lemley, 'Beyond Preemption: The Law and Policy of Intellectual Property Licensing,' 87 California Law Review, 111 (1999); Mark A. Lemley, 'The Economics of Improvement in Intellectual Property Law,' Texas Law Review 75 (1997): 989, 1048–68; in 'Intellectual Property and Shrink-wrap Licenses' (Southern California Law Review 68 [1995]: 1239, 1239), Lemley notes that 'software vendors are attempting en masse to `opt out' of intellectual property law by drafting license provisions that compel their customers to adhere to more restrictive provisions than copyright . . . law would require.' Jessica Litman ('The Tales That Article 2B Tells,' Berkeley Technology Law Journal 13 [1998]: 931, 938) characterizes as 'dubious' the notion that current law enables publishers to make a transaction into a license by so designating it. In her view, article 2B is 'confusing and confused' about copyright and its relationship with that law, and would make new law. She believes that 'whatever the outcome' of the debate over whether copyright makes sense in the digital environment (see 'Reforming Information Law in Copyright's Image,' Dayton Law Review 22 [1997]: 587, 590), 'copyright doctrine is ill-adapted to accommodate many of the important interests that inform our information policy. First Amendment, privacy, and distributional issues that copyright has treated only glancingly are central to any information policy.' See also Jessica Litman, 'Revising Copyright Law for the Information Age,' Oregon Law Review 75 (1996): 19; and 'The Exclusive Right to Read' (Cardozo Arts and Entertainment Law Journal 13 [1994]: 29, 48), in which Litman states that 'much of the activity on the net takes place on the mistaken assumption that any material on the Internet is free from copyright unless expressly declared to be otherwise.' In 'Copyright as Myth' (University of Pittsburgh Law Review 53 [1991]: 235, 235–37), Litman provides a general overview of the issues of authorship and infringement in copyright law, indicating that debate continues regarding the definition of 'authorship' (she defines 'author' in the copyright sense of anyone who creates copyrightable works, whether they be books, songs, sculptures, buildings, computer programs, paintings or films [236, n.5]); she also discusses why copyright law is counterintuitive to the authorship process. See also 'The Public Domain' (Emory Law Journal 39 [1990]: 965, 969), in which Litman recommends a broad definition of the public domain (originality is a keystone of copyright law [974]). Neil Weinstock Netanel, 'Asserting Copyright's Democratic Principles in the Global Arena,' Vanderbilt Law Review 51 (1998): 217, 232 n.48, 299 n.322; Neil Netanel, 'Alienability Restrictions and the Enhancement of Author Autonomy in United States and Continental Copyright Law, _Cardozo Arts and Entertainment Law Journal_ 12 (1994): 1, 42–43; in [Copyright and a Democratic Civil Society]: 283, 288, 324–36), Netanel analyzes copyright law and policy in terms of its democracy- enhancing function: 'Copyright is in essence a state measure that uses market institutions to enhance the
