Faculty Bibliography
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Yochai Benkler, Designing Cooperative Systems for Knowledge Production: An Initial Synthesis from Experimental Economics, in Making and Unmaking Intellectual Property: Creative Producton in Legal and Cultural Perspective 149 (Mario Biagioli, Peter Jaszi & Martha Woodmansee, eds., 2011).
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A common assumption, often accepted by regulators – that individuals act only in their narrow self-interest – is false. Evidence from both the natural and social sciences suggests that most people are strongly motivated to cooperate and help one another. Organizations (such as Toyota and Wikipedia) that cultivate and take advantage of these inclinations have prospered. Policy can be designed to incorporate attitudes toward cooperation, and to channel these tendencies in productive directions.
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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).
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This interdisciplinary volume points the way toward the modernization of regulatory theory.
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A movement emerges to challenge the tightening of intellectual property law around the world.
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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).
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Yochai Benkler, Technology, Policy, Cooperation, and Human Systems Design, in The New Economics of Technology Policy (Dominique Foray ed., 2009).
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This innovative book comprehensively sheds light on the theory and practice of technological policies by employing modern analytical tools and economic techniques.
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Describes how patterns of information, knowledge, and cultural production are changing.
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Yochai Benkler & Helen Nissenbaum, Commons-Based Peer Production and Virtue, 14 J. Pol. Phil. 394 (2006).
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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.
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This book explores the nature of the cybersecurity problem for nations and addresses possible solutions.
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Yochai Benkler, A Speakers' Corner Under the Sun, in The Commodification of Information 291 (Niva Elkin-Koren & Neil Weinstock Netanel eds., 2002).
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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.
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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.
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Lawrence Lessig, Jonathan L. Zittrain, Charles R. Nesson, William F. Fisher & Yochai Benkler, Internet Law (Found. Press 2002).
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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).
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This book focuses on the question of how much control innovators should be given over their works.
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Yochai Benkler, Siren Songs and Amish Children: Autonomy, Information, and Law, 76 N.Y.U. L. Rev. 23 (2001).
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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.
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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.
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Yochai Benkler, Net Regulation: Taking Stock and Looking Forward, 71 U. Colo. L. Rev. 331 (2000).
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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.
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Lawrence Lessig & Yochai Benkler, Net Gains: Will Technology Make CBS Unconstitutional?, New Republic, Dec. 14, 1998, at 15.
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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).
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Annual Telecommunications Policy Research Conference
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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.
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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.