An Unhurried View of Private Ordering in Information Transactions

Yochai Roberts Benkler

Digital Access to Scholarship at Harvard (DASH) (Harvard University) · 2000 · 40 citations · 0 references

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Abstract

We stand at an unprecedented moment in the history of exclusive private rights in information ("EPRIs"). 1Technology has made it possible, it seems, to eliminate to a large extent one aspect of what makes information a public good-its nonexcludability.A series of laws-most explicitly the Digital Millennium Copyright Act ("DMCA") and the Uniform Computers Information Transactions Act ("UCITA")-are building on new technologies for controlling individual uses of information goods to facilitate a perfect enclosure of the information environment.The purpose of this Essay is to explain why economic justifications interposed in favor of this aspect of the enclosure movement are, by their own terms, undetermined.There is no a priori theoretical basis to claim that these laws would, on balance, increase the social welfare created by information production.The empirical work that could, in principle, predict the direction in which more perfect enclosure will move us has not yet been done.Empirical research that has been done on the effects of expanded EPRIs-in the