Yale University Press
New Haven and London
Copyright © 2006 by Yochai Benkler.
This online version is available under a Creative Commons Noncommercial Sharealike license - see http://www.benkler.org/ - and has been reformatted and designated as recommended reading for the NGO Committee on Education of the Conference Of Non-Governmental Organizations in Consultative Relationship with the United Nations in conjunction with the Committee's commitment to the United Nations Decade of Education for Sustainable Development, the International Decade for a Culture of Peace and Non-violence for the Children of the World, the Millennium Development Goals and related international agreements, conventions and treaties.
"Human nature is not a machine to be built after a model, and set to do exactly the work prescribed for it, but a tree, which requires to grow and develop itself on all sides, according to the tendency of the inward forces which make it a living thing."
"Such are the differences among human beings in their sources of pleasure, their susceptibilities of pain, and the operation on them of different physical and moral agencies, that unless there is a corresponding diversity in their modes of life, they neither obtain their fair share of happiness, nor grow up to the mental, moral, and aesthetic stature of which their nature is capable."
John Stuart Mill, On Liberty (1859)
Reading this manuscript was an act of heroic generosity. I owe my gratitude to those who did and who therefore helped me to avoid at least some of the errors that I would have made without their assistance. Bruce Ackerman spent countless hours listening, and reading and challenging both this book and its precursor bits and pieces since 2001. I owe much of its present conception and form to his friendship. Jack Balkin not only read the manuscript, but in an act of great generosity taught it to his seminar, imposed it on the fellows of Yale's Information Society Project, and then spent hours with me working through the limitations and pitfalls they found. Marvin Ammori, Ady Barkan, Elazar Barkan, Becky Bolin, Eszter Hargittai, Niva Elkin Koren, Amy Kapczynski, Eddan Katz, Zac Katz, Nimrod Koslovski, Orly Lobel, Katherine McDaniel, and Siva Vaidhyanathan all read the manuscript and provided valuable thoughts and insights. Michael O'Malley from Yale University Press deserves special thanks for helping me decide to write the book that I really wanted to write, not something else, and then stay the course.
This book has been more than a decade in the making. Its roots go back to 1993-1994: long nights of conversations, as only graduate students can have, with Niva Elkin Koren about democracy in cyberspace; a series of formative conversations with Mitch Kapor; a couple of madly imaginative sessions with Charlie Nesson; and a moment of true understanding with Eben Moglen. Equally central from around that time, but at an angle, were a paper under Terry Fisher's guidance on nineteenth-century homesteading and the radical republicans, and a series of classes and papers with Frank Michelman, Duncan Kennedy, Mort Horwitz, Roberto Unger, and the late David Charny, which led me to think quite fundamentally about the role of property and economic organization in the construction of human freedom. It was Frank Michelman who taught me that the hard trick was to do so as a liberal.
Since then, I have been fortunate in many and diverse intellectual friendships and encounters, from people in different fields and foci, who shed light on various aspects of this project. I met Larry Lessig for (almost) the first time in 1998. By the end of a two-hour conversation, we had formed a friendship and intellectual conversation that has been central to my work ever since. He has, over the past few years, played a pivotal role in changing the public understanding of control, freedom, and creativity in the digital environment. Over the course of these years, I spent many hours learning from Jamie Boyle, Terry Fisher, and Eben Moglen. In different ways and styles, each of them has had significant influence on my work. There was a moment, sometime between the conference Boyle organized at Yale in 1999 and the one he organized at Duke in 2001, when a range of people who had been doing similar things, pushing against the wind with varying degrees of interconnection, seemed to cohere into a single intellectual movement, centered on the importance of the commons to information production and creativity generally, and to the digitally networked environment in particular. In various contexts, both before this period and since, I have learned much from Julie Cohen, Becky Eisenberg, Bernt Hugenholtz, David Johnson, David Lange, Jessica Litman, Neil Netanel, Helen Nissenbaum, Peggy Radin, Arti Rai, David Post, Jerry Reichman, Pam Samuelson, Jon Zittrain, and Diane Zimmerman. One of the great pleasures of this field is the time I have been able to spend with technologists, economists, sociologists, and others who don't quite fit into any of these categories. Many have been very patient with me and taught me much. In particular, I owe thanks to Sam Bowles, Dave Clark, Dewayne Hendricks, Richard Jefferson, Natalie Jeremijenko, Tara Lemmey, Josh Lerner, Andy Lippman, David Reed, Chuck Sabel, Jerry Saltzer, Tim Shepard, Clay Shirky, and Eric von Hippel. In constitutional law and political theory, I benefited early and consistently from the insights of Ed Baker, with whom I spent many hours puzzling through practically every problem of political theory that I tackle in this book; Chris Eisgruber, Dick Fallon, Larry Kramer, Burt Neuborne, Larry Sager, and Kathleen Sullivan all helped in constructing various components of the argument.
Much of the early work in this project was done at New York University, whose law school offered me an intellectually engaging and institutionally safe environment to explore some quite unorthodox views. A friend, visiting when I gave a brown-bag workshop there in 1998, pointed out that at very few law schools could I have presented "The Commons as a Neglected Factor of Information Policy" as an untenured member of the faculty, to a room full of law and economics scholars, without jeopardizing my career. Mark Geistfeld, in particular, helped me work though the economics of sharing-as we shared many a pleasant afternoon on the beach, watching our boys playing in the waves. I benefited from the generosity of Al Engelberg, who funded the Engelberg Center on Innovation Law and Policy and through it students and fellows, from whose work I learned so much; and Arthur Penn, who funded the Information Law Institute and through it that amazing intellectual moment, the 2000 conference on "A Free Information Ecology in the Digital Environment," and the series of workshops that became the Open Spectrum Project. During that period, I was fortunate enough to have had wonderful students and fellows with whom I worked in various ways that later informed this book, in particular Gaia Bernstein, Mike Burstein, John Kuzin, Greg Pomerantz, Steve Snyder, and Alan Toner.
Since 2001, first as a visitor and now as a member, I have had the remarkable pleasure of being part of the intellectual community that is Yale Law School. The book in its present form, structure, and emphasis is a direct reflection of my immersion in this wonderful community. Practically every single one of my colleagues has read articles I have written over this period, attended workshops where I presented my work, provided comments that helped to improve the articles-and through them, this book, as well. I owe each and every one of them thanks, not least to Tony Kronman, who made me see that it would be so. To list them all would be redundant. To list some would inevitably underrepresent the various contributions they have made. Still, I will try to say a few of the special thanks, owing much yet to those I will not name. Working out the economics was a precondition of being able to make the core political claims. Bob Ellickson, Dan Kahan, and Carol Rose all engaged deeply with questions of reciprocity and commons-based production, while Jim Whitman kept my feet to the fire on the relationship to the anthropology of the gift. Ian Ayres, Ron Daniels during his visit, Al Klevorick, George Priest, Susan Rose-Ackerman, and Alan Schwartz provided much-needed mixtures of skepticism and help in constructing the arguments that would allay it. Akhil Amar, Owen Fiss, Jerry Mashaw, Robert Post, Jed Rubenfeld, Reva Siegal, and Kenji Yoshino helped me work on the normative and constitutional questions. The turn I took to focusing on global development as the core aspect of the implications for justice, as it is in chapter 9, resulted from an invitation from Harold Koh and Oona Hathaway to speak at their seminar on globalization, and their thoughtful comments to my paper. The greatest influence on that turn has been Amy Kapczynski's work as a fellow at Yale, and with her, the students who invited me to work with them on university licensing policy, in particular, Sam Chaifetz.
Oddly enough, I have never had the proper context in which to give two more basic thanks. My father, who was swept up in the resistance to British colonialism and later in Israel's War of Independence, dropped out of high school. He was left with a passionate intellectual hunger and a voracious appetite for reading. He died too young to even imagine sitting, as I do today with my own sons, with the greatest library in human history right there, at the dinner table, with us. But he would have loved it. Another great debt is to David Grais, who spent many hours mentoring me in my first law job, bought me my first copy of Strunk and White, and, for all practical purposes, taught me how to write in English; as he reads these words, he will be mortified, I fear, to be associated with a work of authorship as undisciplined as this, with so many excessively long sentences, replete with dependent clauses and unnecessarily complex formulations of quite simple ideas.
Finally, to my best friend and tag-team partner in this tussle we call life, Deborah Schrag, with whom I have shared nicely more or less everything since we were barely adults.