Yochai Benkler

Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies

Faculty Co-Director, Berkman Klein Center for Internet and Society

Biography

Yochai Benkler is the Berkman Professor of Entrepreneurial Legal Studies at Harvard Law School, and faculty co-director of the Berkman Klein Center for Internet and Society at Harvard University. Since the 1990s he has played a role in characterizing the role of information commons and decentralized collaboration to innovation, information production, and freedom in the networked economy and society. His books include The Wealth of Networks: How social production transforms markets and freedom (Yale University Press 2006), which won academic awards from the American Political Science Association, the American Sociological Association, and the McGannon award for social and ethical relevance in communications. In 2012 he received a lifetime achievement award from Oxford University in recognition of his contribution to the study and public understanding of the Internet and information goods. His work is socially engaged, winning him the Ford Foundation Visionaries Award in 2011, the Electronic Frontier Foundation’s Pioneer Award for 2007, and the Public Knowledge IP3 Award in 2006. It is also anchored in the realities of markets, cited as “perhaps the best work yet about the fast moving, enthusiast-driven Internet” by the Financial Times and named best business book about the future in 2006 by Strategy and Business. Benkler has advised governments and international organizations on innovation policy and telecommunications, and serves on the boards or advisory boards of several nonprofits engaged in working towards an open society. His work can be freely accessed at http://www.benkler.org.

Areas of Interest

Yochai Benkler, Degrees of Freedom, Dimensions of Power, 145 Daedalus 18 (2016).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Networked Society
Type: Article
Abstract
The original Internet design combined technical, organizational, and cultural characteristics that decentralized power along diverse dimensions. Decentralized institutional, technical, and market power maximized freedom to operate and innovate at the expense of control. Market developments have introduced new points of control. Mobile and cloud computing, the Internet of Things, fiber transition, big data, surveillance, and behavioral marketing introduce new control points and dimensions of power into the Internet as a social-cultural-economic platform. Unlike in the Internet's first generation, companies and governments are well aware of the significance of design choices, and are jostling to acquire power over, and appropriate value from, networked activity. If we are to preserve the democratic and creative promise of the Internet, we must continuously diagnose control points as they emerge and devise mechanisms of recreating diversity of constraint and degrees of freedom in the network to work around these forms of reconcentrated power.
Yochai Benkler, A Public Accountability Defense for National Security Leakers and Whistleblowers, 8 Harv. L. & Pol'y Rev. 281 (2014).
Categories:
Government & Politics
,
Technology & Law
,
Labor & Employment
Sub-Categories:
National Security Law
,
Whistleblowers
,
Cyberlaw
Type: Article
Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale Univ. Press 2006).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Cooperation, Peer-Production & Sharing
,
Information Commons
,
Networked Society
Type: Book
Abstract
Describes how patterns of information, knowledge, and cultural production are changing.
Yochai Benkler, Law, Innovation and Collaboration in Networked Economy and Society, 13 Ann. Rev. L. & Soc. Sci. 231(2017).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
,
Intellectual Property Law
Type: Article
Abstract
Over the past 25 years, social science research in diverse fields has shifted its best explanations of innovation from (a) atomistic invention and development by individuals, corporate or natural, to networked learning; (b) market based innovation focused on material self interest to interaction between market and non market practices under diverse motivations; and (c) property rights exclusively to interaction between property and commons. These shifts have profound implications for how we must think about law and innovation. Patents, copyrights, non compete agreements, and trade secret laws are all optimized for an increasingly obsolete worldview. Strong intellectual property impedes, rather than facilitates, innovation when we understand that knowledge flows in learning networks, mixing market and non market models and motivations, and weaving commons with property are central to the innovation process.
Yochai Benkler, Robert Faris, Hal Roberts & Ethan Zuckerman, Study: Breitbart-led right-wing media ecosystem altered broader media agenda, Colum. Journalism Rev. (Mar. 3, 2017).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Elections & Voting
,
Communications Law
Type: Other
Yochai Benkler, Open Access and Information Commons, in Oxford Handbook of Law and Economics: Private and Commercial Law 256 (Francesco Parisi ed., 2017).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Book
Yochai Benkler, Peer Production, the Commons, and the Future of the Firm, 15 Strategic Org. 264 (2017).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Article
Abstract
From free and open source software, through Wikipedia to video journalism, peer production plays a more significant role in the information production environment than was theoretically admissible by any economic model of motivation and organization that prevailed at the turn of the millennium. Its sustained success for a quarter of a century forces us to reevaluate three core assumptions of the standard models of innovation and production. First, it places intrinsic and social motivations, rather than material incentives, at the core of innovation, and hence growth. Second, it challenges the centrality of property, as opposed to the interaction of property and commons, to growth. And third, it questions the continued centrality of firms to the innovation process.
Yochai Benkler, Peer Production and Cooperation, in Handbook on the Economics of the Internet 91 (Johannes M. Bauer & Michael Latzer, eds., 2016).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
Type: Book
Yochai Benkler, When von Hippel Innovation Met the Networked Environment:  Recognizing Decentralized Innovation, in Revolutionizing Innovation: users, communities, and open innovation 195 (Dietmar Harhoff & Karim R. Lakhani eds., 2016).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Book
Abstract
This volume provides a comprehensive and multidisciplinary view of the field of user and open innovation, reflecting advances in the field over the last several decades.
Yochai Benkler & David Clark, Introduction, 145 Daedalus 5 (2016).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Networked Society
Type: Article
Yochai Benkler, Aaron Shaw & Benjamin Mako Hill, Peer Production: A Modality of Collective Intelligence, in Handbook of Collective Intelligence (Thomas W. Malone & Michael S. Bernstein eds., 2015).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
Type: Book
Abstract
Intelligence does not arise only in individual brains; it also arises in groups of individuals. This is collective intelligence: groups of individuals acting collectively in ways that seem intelligent.
Yochai Benkler, Hal Roberts, Robert Faris, Alicia Solow-Niederman & Bruce Etling, Social Mobilization and the Networked Public Sphere: Mapping the SOPA-PIPA Debate, 32 Pol. Comm. 594 (2015).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
Type: Article
Robert Faris, Hal Roberts, Bruce Etling, Dalia Othman & Yochai Benkler, Score Another One for the Internet? The Role of the Networked Public Sphere in the U.S. Net Neutrality Policy Debate (Berkman Ctr. Res. Pub. No. 2015-4, Feb. 10, 2015).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
Type: Other
Abstract
In this paper we study the public debate over net neutrality in the United States from January through November 2014. We compiled, mapped, and analyzed over 16,000 stories published on net neutrality, augmented by data from Twitter, bit.ly, and Google Trends. Using a mixed-methods approach that combines link analysis with qualitative content analysis, we describe the evolution of the debate over time and assess the role, reach, and influence of different media sources and advocacy groups in setting the agenda, framing the debate, and mobilizing collective action. We conclude that a diverse set of actors working in conjunction through the networked public sphere played a central, arguably decisive, role in turning around the Federal Communications Commission policy on net neutrality.
Yochai Benkler, Opinion: The Death of the Company Reignites the Battle Between Capital and Labour, Fin. Times, Jan 24, 2015, at 7.
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Corporate Law & Securities
Sub-Categories:
Business Organizations
,
Law & Economics
,
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: News
Yochai Benkler, Between Spanish Huertas and the Open Road: A Tale of Two Commons?, in Governing the Knowledge Commons 69 (Brett Frischmann, Michael Madison & Katherine Strandburg eds., 2014).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Book
Yochai Benkler, Commons and Growth: The Essential Role of Open Commons in Market Economies, 80 U. Chi. L. Rev. 1499 (2013)(reviewing Brett M. Frischmann’s Infrastructure: The Social Value of Shared Resources (2012)).
Categories:
Disciplinary Perspectives & Law
,
Property Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Property Rights
,
Intellectual Property Law
,
Information Commons
,
Cooperation, Peer-Production & Sharing
Type: Article
Yochai Benkler, Practical Anarchism: Peer Mutualism, Market Power, and the Fallible State, 41 Pol. & Soc’y 213 (2013).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Technology & Law
Sub-Categories:
Law & Economics
,
State & Local Government
,
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Article
Abstract
The article considers several working anarchies in the networked environment, and whether they offer a model for improving on the persistent imperfections of markets and states. I explore whether these efforts of peer mutualism in fact offer a sufficient range of capabilities to present a meaningful degree of freedom to those who rely on the capabilities it affords, and whether these practices in fact remain sufficiently nonhierarchical to offer a meaningful space of noncoercive interactions. The real utopias I observe here are perfect on neither dimension. Internally, hierarchy and power reappear, to some extent and in some projects, although they are quite different than the hierarchy of government or corporate organization. Externally, there are some spectacular successes, some failures to thrive, and many ambiguous successes. In all, present experience supports neither triumphalism nor defeatism in the utopian project. Peer models do work, and they do provide a degree of freedom in the capabilities they provide. But there is no inexorable path to greater freedom through voluntary open collaboration. There is a good deal of uncertainty and muddling through. The last part of the article suggests a theory of freedom that supports the significance of even these obviously imperfect peer systems with incomplete coverage of necessary human capabilities, and explains why expanding the domain of mutualism improves freedom and well-being under conditions of persistent market imperfection and an inevitably fallible state. Peer mutualism doesn’t have to be perfect; it merely needs to offer a new dimension or sufficient diversity in how it instantiates capabilities and transmits power to offer us, who inhabit the systems that these peer systems perturb, a degree of freedom.
Yochai Benkler, Foreword, in Open Development: Networked Innovations in International Development (Matthew L. Smith & Katherine M. A. Reilly eds., 2013).
Categories:
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Developing & Emerging Nations
,
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Book
Yochai Benkler, Hacks of Valor: Why Anonymous Is Not a Threat to National Security, Foreign Aff., April 4, 2012.
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
National Security Law
,
Information Privacy & Security
,
Cyberlaw
Type: Article
Aaron Shaw & Yochai Benkler, A Tale of Two Blogospheres: Discursive Practices on the Left and Right, 56 Am. Behav. Scientist 459 (2012).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Politics & Political Theory
,
Networked Society
Type: Article
Yochai Benkler, Open Wireless vs. Licensed Spectrum: Evidence from Market Adoption, 26 Harv. J.L. & Tech. 69 (2012).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
Type: Article
Abstract
The paper reviews evidence from eight wireless markets: mobile broadband; wireless healthcare; smart grid communications; inventory management; access control; mobile payments; fleet management; and secondary markets in spectrum. I find that markets are adopting unlicensed wireless strategies in mission-critical applications, in many cases more so than they are building on licensed strategies. If the 1990s saw what was called "the Negroponte Switch" of video from air to wire, and telephony from wire to air, the present and near future are seeing an even more fundamental switch. Where a decade ago most of our wireless capacity was delivered over exclusive control approaches-both command and control and auctioned exclusivity--complemented by special-purpose shared spectrum use, today we are moving to a wireless infrastructure whose core relies on shared, open wireless approaches, complemented by exclusive control approaches for special, latency-intolerant, high-speed mobile applications. The scope of the latter will contract further if regulation catches up to technological reality, and opens up more bands to open wireless innovation, with greater operational flexibility and an emphasis on interoperability.
Yochai Benkler & Bruce Ackerman, Occupying the First Amendment, Huffington Post: The Blog (Oct. 21, 2011, 8:51 AM).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Other
Yochai Benkler, WikiLeaks and the PROTECT-IP Act: A New Public-Private Threat to the Internet Commons, 140 Daedalus 154 (2011).
Categories:
Technology & Law
,
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Cyberlaw
,
Intellectual Property Law
,
Networked Society
,
Information Privacy & Security
Type: Article
Yochai Benkler, The Penguin and the Leviathan: How Cooperation Triumphs over Self-Interest (Crown Business 2011).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Cooperation, Peer-Production & Sharing
Type: Book
Abstract
From the Hardcover edition.
Yochai Benkler, The Unselfish Gene, 89 Harv. Bus. Rev. 76 (2011).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Political Theory
,
Cooperation, Peer-Production & Sharing
Type: Article
Yochai Benkler, A Free Irresponsible Press: Wikileaks and the Battle Over the Soul of the Networked Fourth Estate, 46 Harv. C.R.-C.L. L. Rev. 311 (2011).
Categories:
Government & Politics
,
Technology & Law
Sub-Categories:
National Security Law
,
Government Accountability
,
Communications Law
,
Cyberlaw
,
Information Privacy & Security
,
Networked Society
Type: Article
Bruce Ackerman & Yochai Benkler, Private Manning’s Humiliation, 58 N.Y. Rev. Books 62 (2011).
Categories:
Government & Politics
,
Criminal Law & Procedure
,
Constitutional Law
Sub-Categories:
Fifth Amendment
,
Sentencing & Punishment
,
Government Accountability
Type: Article
Yochai Benkler, Networks of Power, Degrees of Freedom, 5 Int'l J. Comm. 721 (2011).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Behavioral Sciences
,
Law & Economics
,
Communications Law
,
Networked Society
Type: Article
Yochai Benkler, Growth-Oriented Law for the Networked Information Economy: Emphasizing Freedom to Operate Over Power to Appropriate, in Rules for Growth: Promoting Innovation and Growth Through Legal Reform 313 (Kauffman Task Force on Law, Innovation, and Growth, 2011).
Categories:
Technology & Law
Sub-Categories:
Networked Society
,
Information Commons
Type: Book
Yochai Benkler, The University in the Networked Economy and Society: Challenges and Opportunities, in The Tower and the Cloud: Higher Education in the Age of Cloud Computing 51 (Richard N. Katz ed., EDUCAUSE 2010).
Categories:
Disciplinary Perspectives & Law
,
Family Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Education Law
,
Communications Law
,
Science & Technology
,
Networked Society
,
Cyberlaw
Type: Book
Yochai Benkler, Ending the Internet's Trench Warfare, N.Y. Times, Mar. 21, 2010, at WK12.
Categories:
Technology & Law
Sub-Categories:
Communications Law
Type: News
Yochai Benkler, Next Generation Connectivity: A review of broadband Internet transitions and policy from around the world (Berkman Ctr. for Internet & Soc'y, Feb. 8, 2010).
Categories:
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Communications Law
,
Cyberlaw
,
Networked Society
Type: Other
Leah Belsky, Byron Kahr, Max Berkelhammer & Yochai Benkler, Everything in its Right Place: Social Cooperation and Artist Compensation, 17 Mich. Telecomm. & Tech. L. Rev. 1 (2010).
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Copyright
,
Cooperation, Peer-Production & Sharing
,
Networked Society
,
Intellectual Property Law
,
Digital Property
Type: Article
Yochai Benkler, Law, Policy, and Cooperation, in Government and Markets: Toward a New Theory of Regulation (Edward Balleisen & David Moss eds., Cambridge Univ. Press 2010).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Technology & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Cooperation, Peer-Production & Sharing
Type: Book
Abstract
This interdisciplinary volume points the way toward the modernization of regulatory theory.
Yochai Benkler, The Idea of Access to Knowledge and the Information Commons, in Access to Knowledge in the Age of Intellectual Property 217 (Gaelle Krikorian & Amy Kapczynski eds., 2010).
Categories:
Technology & Law
Sub-Categories:
Intellectual Property Law
,
Networked Society
,
Information Commons
Type: Book
Abstract
A movement emerges to challenge the tightening of intellectual property law around the world.
Yochai Benkler, Information, Structures, and the Constitution of American Society, in The Constitution in 2020 187 (Jack Balkin & Reva Siegel eds., 2009).
Categories:
Technology & Law
,
Constitutional Law
Sub-Categories:
Information Commons
,
Networked Society
Type: Book
Yochai Benkler, Sharing, Trading, Creating Culture, 324 Science, no. 5925, 2009, at 337 (Reviewing Lawrence Lessig’s Remix. Making Art and Commerce Thrive in the Hybrid Economy (2008)).
Categories:
Technology & Law
Sub-Categories:
Intellectual Property Law
,
Cooperation, Peer-Production & Sharing
,
Information Commons
,
Science & Technology
Type: Article
David G. Rand, Thomas Pfeiffer, Anna Dreber, Rachel Sheketoff, Nils Wernerfelt & Yochai Benkler, Dynamic Remodeling of In-group Bias During the 2008 Presidential Election, 106 Proc. Nat’l Acad. Sci. 6187 (2009).
Categories:
Government & Politics
Sub-Categories:
Elections & Voting
Type: Article
Yochai Benkler, Correspondence: A New Era of Corruption?, New Republic Online (Mar. 4, 2009).
Categories:
Technology & Law
,
Government & Politics
Sub-Categories:
Corruption
,
Communications Law
,
Networked Society
Type: Other
Yochai Benkler, From Greenspan's Despair to Obama's Hope: Basis of Cooperation as Principles of Regulation in New Perspectives on Regulation 63 (David A. Moss & John A. Cisternino eds., 2009).
Categories:
Disciplinary Perspectives & Law
,
Government & Politics
,
Technology & Law
Sub-Categories:
Law & Economics
,
Administrative Law & Agencies
,
Cooperation, Peer-Production & Sharing
Type: Book
Yochai Benkler, Technology, Policy, Cooperation, and Human Systems Design in The New Economics of Technology Policy (Dominique Foray ed., 2009).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Science & Technology
,
Cooperation, Peer-Production & Sharing
Type: Book
Abstract
This innovative book comprehensively sheds light on the theory and practice of technological policies by employing modern analytical tools and economic techniques.
Yochai Benkler, Educating for Participation in the Networked Environment (in Symposium: The Wealth of Networks (Yochai Benkler) discussed by Philippe Aigrain, Leslie Chan, Jean-Claude Guédon & John Willinsky, with a response by Yochai Benkler), 6 Pol'y Futures in Educ. 152 (2008).
Categories:
Technology & Law
Sub-Categories:
Networked Society
Type: Article
Yochai Benkler & Helen Nissenbaum, Commons-Based Peer Production and Virtue, 14 J. Pol. Phil. 394 (2006).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Cooperation, Peer-Production & Sharing
Type: Article
Abstract
COMMONS-BASED peer production is a socio-economic system of production that is emerging in the digitally networked environment. Facilitated by the technical infrastructure of the Internet, the hallmark of this socio-technical system is collaboration among large groups of individuals, sometimes in the order of tens or even hundreds of thousands, who cooperate effectively to provide information, knowledge or cultural goods without relying on either market pricing or managerial hierarchies to coordinate their common enterprise. While there are many practical reasons to try to understand a novel system of production that has produced some of the finest software, the fastest supercomputer and some of the best web-based directories and news sites, here we focus on the ethical, rather than the functional dimension. What does it mean in ethical terms that many individuals can find themselves cooperating productively with strangers and acquaintances on a scope never before seen? How might it affect, or at least enable, human action and affection, and how would these effects or possibilities affect our capacities to be virtuous human beings? We suggest that the emergence of peer production offers an opportunity for more people to engage in practices that permit them to exhibit and experience virtuous behavior. We posit: (a) that a society that provides opportunities for virtuous behavior is one that is more conducive to virtuous individuals; and (b) that the practice of effective virtuous behavior may lead to more people adopting virtues as their own, or as attributes of what they see as their self-definition. The central thesis of this paper is that socio-technical systems of commons-based peer production offer not only a remarkable medium of production for various kinds of information goods but serve as a context for positive character formation. Exploring and substantiating these claims will be our quest, but we begin with a brief tour through this strange and exciting new landscape of commons-based peer production and conclude with recommendations for public policy.
Yochai Benkler, Peer Production of Survivable Critical Infrastructures in The Law and Economics of Cybersecurity 73 (Mark F. Grady & Francesco Parisi eds., 2006).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Government & Politics
Sub-Categories:
Law & Economics
,
National Security Law
,
Cyberlaw
,
Information Privacy & Security
,
Cooperation, Peer-Production & Sharing
Type: Book
Abstract
This book explores the nature of the cybersecurity problem for nations and addresses possible solutions.
Amy Kapczynski, Samantha Chaifetz, Zachary Katz & Yochai Benkler, Addressing Global Health Inequities: An Open Licensing Approach for University Innovations, 20 Berkeley Tech. L.J. 1031 (2005).
Categories:
Property Law
,
Health Care
,
International, Foreign & Comparative Law
Sub-Categories:
Health Law & Policy
,
Food & Drug Law
,
Developing & Emerging Nations
,
Intellectual Property - Patent & Trademark
Type: Article
Yochai Benkler, Common Wisdom: Peer Production of Educational Materials (COSL Press 2005).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
Sub-Categories:
Law & Economics
,
Law & Behavioral Sciences
,
Cooperation, Peer-Production & Sharing
Type: Book
Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 Yale L.J. 273 (2004).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Cooperation, Peer-Production & Sharing
Type: Article
Yochai Benkler, Commons-Based Strategies and the Problems of Patents, 305 Science, no. 5687, Aug. 20, 2004, at 1110.
Categories:
Property Law
,
Technology & Law
Sub-Categories:
Intellectual Property - Patent & Trademark
,
Cooperation, Peer-Production & Sharing
,
Intellectual Property Law
Type: Article
Yochai Benkler, Freedom in the Commons: Towards a Political Economy of Information, 52 Duke L.J. 1245 (2003).
Categories:
Technology & Law
Sub-Categories:
Information Commons
,
Networked Society
,
Cooperation, Peer-Production & Sharing
Type: Article
Yochai Benkler, The Political Economy of Commons, 4 UPGRADE 6 (2003).
Categories:
Technology & Law
Sub-Categories:
Information Commons
Type: Article
Yochai Benkler, Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain, 66 Law & Contemp. Probs. 173 (2003).
Categories:
Property Law
,
Constitutional Law
Sub-Categories:
Intellectual Property - Copyright
Type: Article
Yochai Benkler, A Speakers' Corner Under the Sun in The Commodification of Information 291 (Niva Elkin-Koren & Neil Weinstock Netanel eds., 2002).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Information Commons
Type: Book
Abstract
This book presents the penetrating analyses and recommendations that emerged from that conference. A broad spectrum of views is expressed, from commercialism as the liberator of free speech to commodification as de facto censorship.
Yochai Benkler, Intellectual Property and the Organization of Information Production, 22 Int'l Rev. L. & Econ. 81 (2002).
Categories:
Technology & Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Law & Economics
,
Intellectual Property Law
,
Information Commons
Type: Article
Abstract
This paper analyzes an area that economic analysis of intellectual property has generally ignored, namely, the effects of intellectual property rights on the relative desirability of various strategies for organizing information production. I suggest that changes in intellectual property rules alter the payoffs to information production in systematic and predictable ways that differ as among different strategies. My conclusion is that an institutional environment highly protective of intellectual property rights will (a) have less beneficial impact, at an aggregate level, than one would predict without considering these effects, and (b) fosters commercialization, concentration, and homogenization of information production, and thus entails normative implications that may be more salient than its quantitative effects.
Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 Yale L.J. 369 (2002).
Categories:
Technology & Law
,
Banking & Finance
,
Disciplinary Perspectives & Law
Sub-Categories:
Financial Markets & Institutions
,
Law & Economics
,
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Article
Lawrence Lessig, Jonathan L. Zittrain, Charles R. Nesson, William F. Fisher & Yochai Benkler, Internet Law (Found. Press 2002).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
Type: Book
Yochai Benkler, Some Economics of Wireless Communications, 16 Harv. J.L. & Tech. 25 (2002).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Networked Society
Type: Article
Yochai Benkler, The Battle Over the Institutional Ecosystem in the Digital Environment, 44 Comm. ACM 84 (2001).
Categories:
Technology & Law
Sub-Categories:
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Article
Yochai Benkler, A Political Economy of the Public Domain: Markets in Information Goods vs. The Marketplace of Ideas in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society 267 (Rochelle Cooper Dreyfuss, Diane Leenheer Zimmerman & Harry First eds., 2001).
Categories:
Technology & Law
,
Property Law
Sub-Categories:
Intellectual Property - Copyright
,
Intellectual Property Law
,
Information Commons
Type: Book
Abstract
This book focuses on the question of how much control innovators should be given over their works.
Yochai Benkler, Property, Commons, and the First Amendment: Towards a Core Common Infrastructure (White Paper, First Amendment Program, Brennan Center for Justice at NYU School of Law, Mar. 2001).
Categories:
Technology & Law
,
Property Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Intellectual Property - Copyright
,
Intellectual Property Law
,
Communications Law
Type: Other
Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L. Rev. 23 (2001).
Categories:
Technology & Law
Sub-Categories:
Information Commons
,
Intellectual Property Law
,
Cooperation, Peer-Production & Sharing
,
Networked Society
Type: Article
Abstract
New communications technologies offer the potential to be used to promote fundamental values such as autonomy and democratic discourse, but, as Professor Yochai Benkler discusses in this Article, recent government actions have disfavored these possibilities by stressing private rights in information. He recommends that laws regulating the information economy be evaluated in terms of two effects: whether they empower one group to control the information environment of another group, and whether they reduce the diversity of perspectives communicated. Processor Benkler criticizes the nearly exclusive focus of information policy on property and commercial rights, which results in a concentrated system of production and homogenous information products. He suggests alternative policies that promote a commons in information, which would distribute information production more widely and permit a greater diversity of communications.
Yochai Benkler, Internet Regulation: A Case Study in the Problem of Unilateralism, 11 Eur. J. Int'l L. 167 (2000).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
Type: Article
Abstract
The paper identifies two insights that the problem of Internet regulation provides for understanding the more general problem of unilateralism. First, it suggests the existence of a wide variety of mechanisms for encoding the normative preferences of one nation as behavioural constraints on the citizens of another. In the Internet context in particular, technological and organizational adaptations to law play this role. A broad principle of cooperation among nations, which would require each nation to take account in its public actions of the constraints it would impose on the citizens of other nations, would therefore entail a breathtaking degree of cooperation and consideration among nations, or risk that the very breadth of its ambition will severely limit its domain of operation. Secondly, it suggests that the interplay between unilateral lawmaking on the one hand, and a harmonization ethic implemented by imperfectly articulated multilateral process on the other hand, creates an institutional environment ripe for the picking by non-representative commercial or other organizations to embed their values in the regulatory system that will ultimately emerge.
Yochai Benkler, An Unhurried View of Private Ordering in Information Transactions, 53 Vand. L. Rev. 2063 (2000).
Categories:
Disciplinary Perspectives & Law
,
Technology & Law
,
Consumer Finance
,
Property Law
Sub-Categories:
Consumer Contracts
,
Law & Economics
,
Property Rights
,
Intellectual Property - Copyright
,
Cyberlaw
,
Intellectual Property Law
,
Networked Society
Type: Article
Yochai Benkler, Constitutional Bounds of Database Protection: The Role of Judicial Review in the Creation and Definition of Private Rights in Information, 15 Berkeley Tech. L.J. 535 (2000).
Categories:
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Digital Property
,
Information Commons
,
Intellectual Property Law
,
Networked Society
Type: Article
Yochai Benkler, Free Markets vs. Free Speech: A Resilient Red Lion and it Critics, 11 Eur. J. Int'l L. 171 (2000) (reviewing Robert Corn-Revere, ed., Rationales & Rationalizations: Regulating the Electronic Media (1997)).
Categories:
Technology & Law
,
Constitutional Law
Sub-Categories:
First Amendment
,
Communications Law
Type: Article
Yochai Benkler, From Consumers to Users: Shifting the Deeper Structures of Regulation Towards Sustainable Commons and User Access, 52 Fed. Comm. L.J. 561 (2000).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Intellectual Property Law
,
Networked Society
Type: Article
Yochai Benkler, Net Regulation: Taking Stock and Looking Forward, 71 U. Colo. L. Rev. 331 (2000).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Cyberlaw
,
Networked Society
,
Digital Property
Type: Article
Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. Rev. 354 (1999).
Categories:
Banking & Finance
,
Technology & Law
,
Property Law
,
Constitutional Law
Sub-Categories:
Commercial Law
,
First Amendment
,
Intellectual Property - Copyright
,
Information Commons
,
Intellectual Property Law
,
Communications Law
Type: Article
Abstract
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.
Lawrence Lessig & Yochai Benkler, Net Gains: Will Technology Make CBS Unconstitutional?, New Republic, Dec. 14, 1998, at 15.
Categories:
Technology & Law
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Communications Law
Type: Article
Yochai Benkler, The Commons as a Neglected Factor of Information Policy (Oct. 5, 1998)(Presented at the 26th Annual Telecommunications Policy Research Conference, Oct 3-5, 1998).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Information Commons
Type: Presentation
Abstract
Annual Telecommunications Policy Research Conference
Yochai Benkler, Communications Infrastructure Regulation and the Distribution of Control Over Content, 22 Telecomm. Pol'y 183 (1998).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Information Commons
Type: Article
Abstract
Convergence renders problematic continued application of traditional concepts like universal and public service to address democratic values through communications regulation. The paper proposes an alternative approach based on assessing the impact of regulatory choices affecting communications infrastructure on social distribution of communicative capacities. It offers an approach to developing descriptive models to assess how law, in technological and organizational context, concentrates or distributes control over production and exchange of information in society. Normatively, it suggests how these distributive effects on the flow of information in society affect both individual autonomy and public discourse.
Yochai Benkler, Overcoming Agoraphobia: Building the Commons of the Digitally Networked Environment, 11 Harv. J. L. & Tech. 287 (1998).
Categories:
Technology & Law
Sub-Categories:
Communications Law
,
Networked Society
Type: Article
Yochai Benkler, Rules of the Road for the Information Superhighway: Electronic Communications and the Law (West 1996).
Categories:
Technology & Law
Sub-Categories:
Cyberlaw
,
Science & Technology
,
Communications Law
Type: Book
Charles R. Nesson & Yochai Benkler, Constitutional Hearsay: Requiring Foundational Testing and Corroboration under the Confrontation Clause, 81 Va. L. Rev. 149 (1995).
Categories:
Criminal Law & Procedure
,
Constitutional Law
Type: Article
Abstract
This article analyzes the role of hearsay in criminal justice proceedings and advocates for the court to adopt an active role in controlling the introduction of hearsay, to ensure that only credible hearsay is admitted into evidence. It considers the impact that hearsay has on the defendant’s constitutional right of confrontation, discussing in what circumstances corroboration and testing will allow the defendant’s rights and societal needs of justice and fairness to be satisfied.

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