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

Abstract

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. First, the article explains why, analytically, recognizing property rights in information imposes on users the same kind of constraint that media regulation laws impose on the owners of media. I suggest that just as media regulation is permissible subject to careful first amendment scrutiny, so too enforcing property rights in information is permissible, but only if the government can persuade the courts that it has very good reasons to impose the restrictions on access to and use of information necessary to effectuate these property rights. Next, I offer a modification of the standard economic explanation of the effects of intellectual property that sheds light on the effects of enforcing intellectual property rules on the way in which information production is organized. I conclude that increases in the scope of property rights increase production by large-scale commercial organizations that integrate new production with ownership of large existing-information inventories. This increase comes at the expense of smaller producers -- commercial or noncommercial -- and of noncommercial producers generally. Normatively, these effects parallel the effects generally discussed in the critique of media concentration, and pose the same threats to the values of robust political discourse and personal autonomy central to our commitment to the first amendment. Finally, I evaluate the Digital Millennium Copyright Act, the enforcement of mass-market shrinkwrap licenses and database protection legislation in light of the normative framework developed in the article.