The Information Semicommons

Abstract

"We think of information as property; law and economic structures, we argue, make it so. But this should not be the end of our inquiry. If we believe information is property, we must ask: What kind of property is information? While at times common use of information, even privately owned information, is accepted under the guise of fair use, private ownership of information forms the bedrock of our understanding of the information property regime. Common uses, when allowed, are perceived as infringements on the private owner’s property rights. This Article argues that this perception is mistaken: we may think of information 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. Using the example of peer-to-peer file sharing, this Article applies semicommons theory to information, and shows that this application has broad implications for decisionmaking in the digital age. Through the lens of the semicommons, we realize that common uses are part of the very structure of an accurately described information ownership regime. As such, common uses increase the overall societal benefits that flow from information creation and should not only be tolerated, but encouraged. Information is not a private property regime: it is a semicommons."