The Information Semicommons

Abstract

We perceive Information as property; law and economic structures, we argue, make it so. But this perception does not end the questioning. If we believe information is property, the question we must ask is: what kind of property is information? While at times common uses of information, even privately owned information, is accepted, private ownership of information on the whole is still often taken as a granted. Common uses, when allowed, are viewed as infringements on the private owner's rights. But this perception is mistaken; information is perceived as owned, but ownership need not be based in a purely private ownership scheme. Information ownership is instead a semicommons, a property model that explicitly recognizes the dynamic relationship and interdependence of private and common property uses. A semicommons exists, according to the theory developed by Henry Smith, where there is a dynamic relationship between the private and common uses of property such that their co-existence achieves greater benefits than would be achieved under a scheme of either primarily private or primarily common ownership.With the peer-to-peer file sharing dispute as its starting point, this article applies semicommons theory to information, shifting decision-making away from primarily seeking to maximize private incentives for information creation and toward the benefits that flow from the interaction of private and common uses.The article distinguishes between content-level and distribution-level effects of information use, and argues that distribution level effects have traditionally - and wrongly - been ignored in policy and judicial decision-making. In a private information ownership model, peer-to-peer file sharing of copyrighted materials is mere infringement. Distribution level effects, however, are the necessary and proper results of common uses of information, and should be considered when making decisions on use to maximize the benefits that flow from the information semicommons.In terms of peer-to-peer file sharing, the Ninth Circuit Court of Appeals rejected Napster's arguments that file sharers actually purchased more copyrighted works than non-users as irrelevant in light of the private owners' rights in their owned information. In recognizing the existence of the information semicommons, this distribution-level effect of such common uses would be a critical issue subject to proof in such circumstances, not a simple aside that it was unproven and unimportant.Semicommons theory has broad implications for information-related decision-making in the digital age beyond peer-to-peer, with the potential to shift discussion away from the view that common uses of information are merely infringing private owners' property rights, or are a necessary primarily to prevent market failure or allow for robust freedom of speech. The semicommons view is one that recognizes that common uses of privately created information are necessary and appropriate, are part of the very structure of the properly described information ownership regime, and as such increase the overall societal benefits that flow from information creation.