Benkler, Yochai. 2003. "Through the Looking Glass: Alice and the Constitutional Foundations of the Public Domain ." Law and Contemporary Problems 66(1-2).

Abstract

From Introduction:

"This paper does three things. First, it outlines the general framework of the relationship between two constitutional provisions -- Article I, Section 8, Clause 8 and the First Amendment -- and Congress's power to regulate the use of information and cultural resources through the institutional form of exclusive private rights. Second, this paper explains why it is appropriate, as a normative matter, to require close judicial scrutiny of congressional use of this particular form of regulation. Third, it identifies six specific pressure points currently bearing on this framework."