James Boyle
The Second Enclosure Movement and the Construction of the Public Domain [full text-PDF]
66 Law & Contemp. Probs. 33 (Winter/Spring 2003)
"It may sound paradoxical, but in a very real sense protection of the commons was one of the fundamental goals of intellectual property law. In the new vision of intellectual property, however, property should be extended everywhere - more is better. Expanding patentable and copyrightable subject matter, lengthening the copyright term, giving legal protection to 'digital barbed wire' even if it is used in part to protect against fair use: Each of these can be understood as a vote of no-confidence in the productive powers of the commons. We seem to be shifting from Brandeis's assumption that the 'noblest of human productions are free as the air to common use' to the assumption that any commons is inefficient, if not tragic."

Enclosing the Genome: What the Squabbles over Genetic Patents Could Teach Us [full text-PDF]
in F. Scott Kieff, Perspectives on Properties of the Human Genome Project (2003)
"My own preference would be for considerably more scholarship that measures our system of current innovation against one that, in questions of basic human need, such as access to medicines that cure fatal diseases, stipulated a certain minimum valuation to human life, even among the global poor. There are many possible solutions to the failures and inefficiencies this analysis would reveal in our current intellectual property system - ranging from supplementing the patent system with government bounties or prizes, to offering dual zone patents, to directly subsidizing research. Intellectual property scholars have an extremely valuable role to play in working out the bugs in such solutions and they are less likely to play that role while they are in the thrall of the black box model of innovation."

David Lange
Reimagining the Public Domain [full text-PDF]
66 Law & Contemp. Probs. 463 (Winter/Spring 2003)
"Let us envision the public domain as if it were a status like citizenship, but a 'citizenship' arising from the exercise of creative imagination rather than as a concomitant of birth. It is surely no challenge to identify creativity and imagination with citizenship in a more conventional sense. This is indeed consistent with a perfectly ordinary understanding of citizenship, now well established in American life and by no means original with us. The Roman historian Tacitus, writing of the reigns of the Emperor Nerva and Trajan, observed: 'Such was the happiness of the times that men could think as they pleased and speak as they thought.' Justice Brandeis appropriated that insight (without attribution) in Whitney v. California, in which he identified thinking and speaking as principal objects of First Amendment protection. Here, then, is an idea powerful enough to transcend its origins: happiness as a function of thinking and speaking freely, and each of these as an attribute of desirable citizenship."

Intellectual Property Cases and Materials
(with Mary LaFrance and Gary Myers) (2d ed. 2003)
"Allow yourself to think first about the nature of creativity and invention as you understand them; and only then turn to the question of rights: of ownership and exclusivity; of the moral claims a creator may make upon a subject; of the conflicts between the creators' claims and the interests others may have in replicating the work; of the interests, if any, the State may claim in the work. Try to recognize the presuppositions you bring to the effort. What do you mean, (and whom do you have in mind) when you think of authorship? How firmly committed are you to freedom of expression? Do you believe that plagiarism (or 'piracy') is morally wrong? Are you generally comfortable with the concepts of property and commodities as you understand them?"

Arti Rai
Open and Collaborative Research: A New Model for Biomedicine [full text-PDF]
in Intellectual Property Rights in Frontier Industries, 131-158 (Robert W. Hahn ed., AEI-Brookings Press 2005)
“In the last 25 years, biomedical research has become increasingly proprietary and secretive. Given the cumulative nature of research, this trend has raised fears that future progress may be impeded by access and licensing difficulties—¦Public funding bodies, prominent scientists, and even some pharmaceutical firms have taken steps in the direction of what might be called 'open and collaborative' science. Open and collaborative projects not only disavow exclusionary behavior but they also move beyond the traditional small-lab based structure of biomedical research.”

Proprietary Rights and Collective Action: The Case of Biotechnology Research With Low Commercial Value
in International Public Goods and Technology Transfer in a Globalized Intellectual Property Regime, 288-306 (Keith E. Maskus & Jerome H. Reichman eds., 2005)
“Private sector collective action that facilitates free rights exchange is often proposed as an efficient solution to difficulties created by increasing proprietary complexity in the research arena. This paper has argued that, at least in the area of biotechnology, we have not seen such activity, and we should not be surprised by its absence. What we should expect, and what has in fact arisen, is public sector collective action in research areas of low commercial value. Although such public sector collective action has many limitations, it is a valuable first step towards generating research that addresses the health problems and food security needs of developing countries.”

Jerome Reichman
The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods (with Keith Maskus)
in International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime, 3- 45 (Keith E. Maskus & Jerome H. Reichman eds., 2005)
“Countries big and small, rich and poor, find themselves at the start of a new era, in which serious thought and bold experimental undertakings will be needed to identify the optimal mix of public and private goods in this broadened but largely uncharted domain. The one sure conclusion that follows from this analysis is that hardening past experience into possibly flawed international rules to regulate this emerging transnational system should be avoided. What is needed, instead, is a long period of experimentation under pro-competitive conditions that could yield instructive 'laboratory effects' comparable to those that gradually led to the progressive development of international intellectual property law after the Berne and Paris Conventions – the 'Great Conventions' – were established in the 1890s.”

A Contractually Reconstructed Research Commons for Scientific Data in a Highly Protectionist Intellectual Property Environment (with Paul Uhlir) [full text-PDF]
66 Law & Contemp. Probs. 315 (Winter/Spring 2003)
"We believe that science policy stands at a critical threshold. If nothing is done to address the challenges we identify, the unraveling of the sharing ethos that already characterizes what we have termed the zone of informal data exchanges between individual scientists will spread to universities, and a trading mentality will further contaminate inter-university exchanges of data. If, instead, science policy takes timely action to address these problems, the benefits could be spectacular, given the new opportunities for scientific collaboration that digital networks make possible."

Stuart Benjamin
Spectrum Abundance and the Choice Between Private and Public Control
78 N. Y. U. L. Rev. 2007 (2003)
“Prominent commentators recently have proposed that the government allocate significant portions of the radio spectrum for use as a wireless commons. The problem for commons proposals is that truly open access leads to interference, which renders a commons unattractive. Those advocating a commons assert, however, that a network comprising devices that operate at low power and repeat each other's messages can eliminate the interference problem. They contend that this possibility renders a spectrum commons more efficient than privately owned spectrum, and in fact that private owners would not create these —Ëœabundant networks’ in the first place. In this Article, Professor Benjamin argues that these assertions are not well founded, and that efficiency considerations favor private ownership of spectrum.”

The Logic of Scarcity: Idle Spectrum as a First Amendment Violation [full text-PDF]
52 Duke L. J. 1 (2002)
"[G]overnment control of the spectrum entails a concomitant obligation to make that spectrum available, such that the government's refusal to allow anyone to use a given frequency must satisfy intermediate scrutiny in order to be constitutional. In the main, the only government interest that will satisfy such scrutiny is nontrivial interference with another's signal. This means that the government will be able to keep spectrum unutilizable or underutilized only to the extent that interference justifies such choices. The government violates the First Amendment when it keeps more spectrum unused than is justified by concerns about interference."

Jennifer Jenkins
Between the Seams: A Fertile Commons (with Christine Cox)
in Ready to Share: Fashion and the Ownership of Creativity, 17-25 (forthcoming from the Norman Lear Center)
"Fashion designs are not unprotected merely because they fall into a legal limbo between intellectual property schemes, however. Both policymakers and courts have been guided by compelling policy reasons to limit design protection. They have expressed concerns that, while such protection might benefit certain designers, it could create monopolies in the fashion industry that would stifle the creativity of future designers, hinder competition and drive up prices for consumer goods. Designers could demand payment for design elements that are currently free, and this cost would be borne by others in the industry and by the public. The less affluent would not be able to afford the range of fashions they currently enjoy. Therefore, policy advisors have been unconvinced that 'new protection will provide substantial benefits to the general public which outweigh removing such designs from free public use.'"

Numerous other faculty and student pieces on intellectual property can be found online in The Duke Law and Technology Review, which publishes short, topical articles on law and technology issues.