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(Yifat Nahmias Senior Research Fellow, Center for Cyber Law and Policy (CCLP), University of Haifa; Researcher, The Heth Academic Center for Research of Competition and Regulation, College of Management. & Maayan Perel*+ Associate Professor, Netanya Academic College, Faculty of Law; Senior Research Fellow, Haifa Center for Law & Technology, University of Haifa Faculty of Law, “THE OVERSIGHT OF CONTENT MODERATION BY AI: IMPACT ASSESSMENTS AND THEIR LIMITATIONS,” pg lexis//pa-ef)

Although different jurisdictions have different impact-assessment schemes in place, each has its own specificities and objectives. Generally, an impact assessment can be defined as "the process of identifying the future consequences of current or proposed action." 25Impact-assessment schemes carry some important advantages. They improve organizational behavior, [*150] promote information sharing, and incentivize private entities to consider ex ante the effect of their AI-led systems on individuals as well as on the public at large. 26But are they sufficient to maintain oversight of all AI systems? First, as our analysis suggests, the way that current initiatives structure impact assessments still falls short of facilitating sufficient accountability. In particular, impact assessments provide only limited transparency, secure due process insufficiently, and allow only limited room for public review. 27The initiatives discussed throughout this paper do not require regulated entities to disclose any part of the self-assessment to the public, nor do they provide other means for the public to know that specific conduct took place. Further, under the Algorithmic Accountability Act, individuals are not entitled to notice or the right to be heard. Consequently, the strategy of impact assessment fails to facilitate sufficient public oversight and proper opportunities for correcting erroneous decisions. To improve their oversight potential, we thus recommend some improvements to the existing impact-assessment schemes, including periodic impact assessments, mandatory notice-and-comment procedure, and mandatory publication.

Information overload for decisionmakers. -   To the extent that critical, rational dialogue does occur among participants during the NEPA's EIS process, the heavy scientific jargon that dominates the process makes it difficult for ordinary citizens to engage in meaningful dialogue about an EIS's substance. It has been observed that most citizen participation in the EIS process occurs through interest groups. Although interest group participation does not impair the quality of the decisionmaking process, it makes citizen interaction less likely. This, in turn, makes it more likely that interaction, to the extent it occurs, is confined to those who are the primary conveyors of scientific information - agency and nonagency experts, or powerful interest groups who can afford to finance their own scientific research. Thus, to the extent the process is expertise-intensive, it may raise some problems for pluralist decisionmaking, which values political bargaining over scientific dialogue.  [*226]  The EIS process also may interfere with the operation of expertocratic and deliberative democracy decisionmaking models. Expertocratic models may suffer because often the rationality of the analysis that occurs in the EIS process is thwarted by too much information. Agency decisionmakers, like individuals generally, face a "scarcity of attention." Although additional information is often helpful, sometimes it can change how a phenomenon is perceived and evaluated. Too much information is also likely to invite agency decisionmakers more readily to "satisfice" - to "look for good enough solutions rather than insisting that only the best solutions will do." As agency decisionmakers increase their usage of heuristic devices or shortcuts, rather than attempt to develop complete and accurate analytical tools, they also increase the potential for error in their decisions. Thus, in the absence of limitations on the amount of information, decisionmakers suffer information overload and are forced to simplify their models, thwarting their ability to engage in complete and accurate rational analysis. Information overload may also give rise to operational problems for the deliberative democracy decisionmaking model. Lay citizens sometimes participate fully in the EIS process, although, when they do so, decisionmakers often tend to ignore their comments. To the extent that participants provide information during the EIS process, however, they often do so in a manner that discourages civic discussion of values. According to one commentator, "most comment letters from private individuals are either emotional expressions of personal preferences or form letters with the same content but different signatures." Moreover, the expertise-laden format of the EIS may lead agency decisionmakers to view themselves primarily as [*227]  facilitating the objective transfer of information, rather than choosing fundamental values or assessing the quality or integrity of the information exchanged. b.   Opportunities for strategic behavior on behalf of participants. -   Additional information provided by participation may confer political advantages on participants, creating additional opportunities for lay participants to act strategically in the process. While this is probably not fatal to pluralist decisionmaking cultures, it can raise problems for expertocratic and deliberative democracy models. Large-scale participation may facilitate strategic or irrational behavior by participants, rather than civic discussion among them. For example, in evaluating the environmental impact of a proposed decision, such as building a road through a heavily forested area, conservationists may generate information about endangered populations and environmental risks. While such information may be helpful to decisionmakers, it may also increase the support for conservation by mobilizing participants who value knowledge of what may be jeopardized by resource exploitation. For example, such information may induce active participation in the process by the pharmaceutical industry in protecting sources of biodiversity. Thus, credible and well-disseminated information may increase awareness of risks among participants and the political pressure of mobilized interests. However, enhanced awareness of risks and mobilization of interest groups will not always contribute to rational decisionmaking or benefit the deliberative process. Rather than promoting dialogue and movement toward consensus, additional information may have the effect of increasing the divergence between participants' preferences and interests, or further entrenching preexisting preferences and interests, as participants are encouraged to join predefined factions. For example, knowledge that a forest has precisely six million significant plant and animal species and two [*228]  million cubic meters of marketable timber does not draw those concerned with biodiversity any closer to those concerned with timber as an economic resource. It has been observed that, in the context of analysis of forestry data, "the net effect of the information and valuation effort may be to polarize the positions, without contributing greater responsibility, balance, or consensus to the formulation of resource management policy." EIS hearings with large numbers of participants have been described as "meaningless displays of ideological fervor that have no impact on policy or implementation." By facilitating strategic action by participants, such as additional delay and the obfuscation of issues, such information may work to take additional agency time and resources without necessarily improving the rationality of the final agency decision or the deliberative quality of the decisionmaking process. Ultimately, delay may have the effect of killing proposed projects or agency programs.

Optimism about the theorized outcome of review processes should be tempered by the serious criticisms lodged by scholars and advocates. 69Link to the text of the note In their worst incarnations, review processes produce low-value information at a high cost. Information overload can degrade the quality of action or cause paralysis by analysis. Similarly, some review processes emphasize procedure over substance, creating a mere hoop jumping exercise rather than a reasoned decision-making endeavor. In addition, rather than encouraging transparency, technocrats and other experts may quietly infuse their values into the [*295] assessments without disclosing such bias to the public. Finally, the prospective nature of most review processes tends toward massive one-shot information gathering exercises and thus fails to account for changes in dynamic environments.

Second – neg ground – this topic is massive and devoid of coherent disad ground applicable across multiple areas. Affs have infinite prep, set the terms of the debate, and speak first and last, so this counterplan is a necessary corrective.

Third – process – the critical question underpinning policy debates is not ‘is the aff good?’ but ‘how should we do it?’ Equipping debaters with seemingly semantic legal details is crucial for training future advocates.

(Faculty of Law, University of Ottawa, “Evidence-Based Intellectual Property Policymaking: An Integrated Review of Methods and Conclusions,” pg online @ https://onlinelibrary.wiley.com/doi/full/10.1111/jwip.12069 //pa-ef)

The most relevant characteristic of these studies by Canadian government-commissioned or industry-sponsored researchers is their specifity of analysis. They do not purport to make broad claims about the size of IP industries, or cherry-pick statistics to support polemics. The narrower the study, the more likely it seems to provide evidence that relies on transparent methodologies, verifiable data and peer reviewable conclusions. Yet, its own studies are not often cited when Canada makes purportedly justified changes in its IP policies. As in the United Kingdom and EU cases mentioned at the outset of this article, Canada is not alone with this pattern of behaviour.

(European Space Agency, “The OECD’s stand of “What is Impact Assessment”,” pg online @ https://space-economy.esa.int/article/129/the-oecds-stand-of-what-is-impact-assessment //pa-ef)

Impact assessment is a central tool for policymakers to provide information on the outcomes of policy and regulation. At the end of 2021, the European Commission reconfirmed the importance of the tool by providing an updated version of its framework standardizing impact assessment approaches (see here). But what actually is impact assessment? The OECD tries to answer this question by breaking down the nature of impact assessment and its real-world policy application in its publication “What is impact assessment?”. The core of impact assessment is found to link causation from an intervention to an outcome while measuring the induced changes along the way. For this, the focus must be on a narrow and well-defined set of impacts to analyse, to allow for detailed effects in a clearly delineated framework. Different than in an evaluation, impact assessment does not aim to give an all-inclusive view or answer policy questions of the bigger picture but instead highlight one set of potential effects in rather isolation. In this exercise, it is especially important to avoid misinterpretation. While one set of effects might be highlighted extensively by an impact assessment, it can come at the cost of unknowingly neglecting other factors. Therefore, the OECD suggests experimenting with the assumptions included in the exercise. Moreover, individual context between observers is likely to vary enough to make “best practice” conclusions almost impossible to establish. The unique role of people and institutions need to be considered on a case-by-case basis. However, this also presents the opportunity to solve issues in different ways without the limitation of only one perfect solution.

(Paul, Law at the Human Rights Centre, University of Essex and Special Rapportuer on the right to the highest attainable standard of health, and Gillian, Senior Research Officer Human Rights Center @ University of Essex, “Impact Assessments, Poverty and Human Rights: A Case Study Using The Right to the Highest Attainable Standard of Health” 5/31/2006 http://www.who.int/hhr/Series_6_Impact%20Assessments_Hunt_MacNaughton1.pdf)

The purpose of this report is to contribute to discussions on human rights and impact assessments. In recent years, there have been increasing calls for governments to perform human rights impact assessments prior to adopting and implementing policies, programs and projects. Yet to date, there has been little published on methodologies or tools to aid governments in undertaking human rights impact assessments. This report examines some recent developments on human rights impact assessment and, using the right to health as a case study, proposes a methodology for incorporating human rights into other forms of impact assessment. The aim of human rights impact assessment in this study is to aid governments in complying with their international and national human rights obligations. In general, impact assessment is a process used to predict the future consequences of proposed policies, programs and projects and thereby to provide governments with opportunities to improve them before they are adopted or implemented. In the context of human rights impact assessment, the process aids governments in choosing between alternatives, making modifications, and providing for mitigating measures in order to respect, protect and fulfill human rights. Thus, human rights impact assessment helps governments to adopt and implement policies, programs and projects that will best meet their obligations to take deliberate and concrete steps toward progressive realization of human rights.

Of the mind, etc.: Freed from doubt or uncertainty, fixed, settled. Obs.

The legal question to be resolved by the court is whether the word "should"13 in the May 18 order connotes futurity or may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", (1) makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or (2) constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16 13 "Should" not only is used as a "present indicative" synonymous with ought but also is the past tense of "shall" with various shades of meaning not always easy to analyze. See 57 C.J. Shall § 9, Judgments § 121 (1932). O. JESPERSEN, GROWTH AND STRUCTURE OF THE ENGLISH LANGUAGE (1984); St. Louis & S.F.R. Co. v. Brown, 45 Okl. 143, 144 P. 1075, 1080-81 (1914). For a more detailed explanation, see the Partridge quotation infra note 15. Certain contexts mandate a construction of the term "should" as more than merely indicating preference or desirability. Brown, supra at 1080-81 (jury instructions stating that jurors "should" reduce the amount of damages in proportion to the amount of contributory negligence of the plaintiff was held to imply an obligation and to be more than advisory); Carrigan v. California Horse Racing Board, 60 Wash. App. 79, 802 P.2d 813 (1990) (one of the Rules of Appellate Procedure requiring that a party "should devote a section of the brief to the request for the fee or expenses" was interpreted to mean that a party is under an obligation to include the requested segment); State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958) ("should" would mean the same as "shall" or "must" when used in an instruction to the jury which tells the triers they "should disregard false testimony"). 14 In praesenti means literally "at the present time." BLACK'S LAW DICTIONARY 792 (6th Ed. 1990). In legal parlance the phrase denotes that which in law is presently or immediately effective, as opposed to something that will or would become effective in the future [in futurol]. See Van Wyck v. Knevals, 106 U.S. 360, 365, 1 S.Ct. 336, 337, 27 L.Ed. 201 (1882).

"Should" is "used . . . to express duty, obligation, propriety, or expediency." Webster's Third New International Dictionary 2104 (2002). Courts [**15] interpreting the word in various contexts have drawn conflicting conclusions, although the weight of authority appears to favor interpreting "should" in an imperative, obligatory sense. HN7A number of courts, confronted with the question of whether using the word "should" in jury instructions conforms with the Fifth and Sixth Amendment protections governing the reasonable doubt standard, have upheld instructions using the word. In the courts of other states in which a defendant has argued that the word "should" in the reasonable doubt instruction does not sufficiently inform the jury that it is bound to find the defendant not guilty if insufficient proof is submitted at trial, the courts have squarely rejected the argument. They reasoned that the word "conveys a sense of duty and obligation and could not be misunderstood by a jury." See State v. McCloud, 257 Kan. 1, 891 P.2d 324, 335 (Kan. 1995); see also Tyson v. State, 217 Ga. App. 428, 457 S.E.2d 690, 691-92 (Ga. Ct. App. 1995) (finding argument that "should" is directional but not instructional to be without merit); Commonwealth v. Hammond, 350 Pa. Super. 477, 504 A.2d 940, 941-42 (Pa. Super. Ct. 1986). Notably, courts interpreting the word "should" in other types of jury instructions [**16] have also found that the word conveys to the jury a sense of duty or obligation and not discretion. In Little v. State, 261 Ark. 859, 554 S.W.2d 312, 324 (Ark. 1977), the Arkansas Supreme Court interpreted the word "should" in an instruction on circumstantial evidence as synonymous with the word "must" and rejected the defendant's argument that the jury may have been misled by the court's use of the word in the instruction. Similarly, the Missouri Supreme Court rejected a defendant's argument that the court erred by not using the word "should" in an instruction on witness credibility which used the word "must" because the two words have the same meaning. State v. Rack, 318 S.W.2d 211, 215 (Mo. 1958). [*318] In applying a child support statute, the Arizona Court of Appeals concluded that a legislature's or commission's use of the word "should" is meant to convey duty or obligation. McNutt v. McNutt, 203 Ariz. 28, 49 P.3d 300, 306 (Ariz. Ct. App. 2002) (finding a statute stating that child support expenditures "should" be allocated for the purpose of parents' federal tax exemption to be mandatory).

(Alf Niels Christian Ross was a Danish jurist, legal philosopher and judge of the European Court of Human Rights. He is best known as one of the leading figures of Scandinavian legal realism, “VI The Concept of Rights,” On Law and Justice On Law and Justice, pg online @ https://academic-oup-com.proxy.lib.umich.edu/book/36943/chapter/322234069 //pa-ef)

Now we can see that there is a crucial difference in meaning with respect to the word ‘protection’ in these two situations.  Static protection concerns the means of exerting pressure which can be applied against violations of the right. These means of exerting pressure can be effective to a greater or lesser degree, depending on the conditions under which infringement is punished, on the magnitude of the penalty, and on the conditions under which the rights holder can obtain a judgment providing for enforcement (vindication) or at least a judgment for damages. The more effective the sanctions, the better the protection of the right, that is, the higher the probability that the rights holder will in fact achieve undisturbed economic enjoyment of certain things which the legal order wishes to assign to him. It is obvious that this protection can never be absolute.  Dynamic protection, on the other hand, has nothing to do with sanctions. Here, the assurance in question is not an assurance that the legal rules (norms of conduct) are actually obeyed, but an assurance that, considered holistically, the acquirer of a right really will succeed to the legal position of his predecessor. In this situation, then, protection does not mean protection of an existing legal position, but protection of an acquirer’s expectation of being placed into such a position. According to circumstances, this protection can be absolute, since the legal order under certain conditions precludes any possibility of further discussion of the legal position as the result of a succession.

(Law School, CRDP, University of Paris Nanterre, Nanterre, France, “Regulatory Impact Assessment,” Encyclopedia of Law and Economics, pg SpringerLink //pa-ef)

Being transparent about all these stages could contribute to a better accountability of regulators (since trade-offs are made clear) and to an increased consistency in regulations (since the need of a new regulation is explained). Moreover, with experience in RIA, better data and analytical methods should be expected to emerge. RIA is, from this point of view, a learning by doing a process. (B) RIA is not only a document (or a set of documents) providing information regarding the expected consequences of a regulation (an end result); it should be conceptualized much more as a process (Adler and Posner 2006). Indeed, as an “end result,” it could be considered as a mere new rhetoric to justify regulatory choices; the hypotheses would then be chosen ex post to justify the desired regulation which will then be submitted to some formal or informal political debate – it is quite often this instrumental use of RIA that is criticized (Renda 2006). Conceptualized as a process, RIA exhibits two interesting features. First, it makes clear that RIA is a way to inquire into a regulatory problem: neither the problem nor its options are facts; they are identified and assessed differently depending on the state of knowledge. RIA, once made, is then not an end result but a “first draft” that will evolve with the comments and criticism of stakeholders. Second, RIA is not a stage after drafting a regulation; it should be developed in parallel of it to reduce the likelihood of an instrumental use. This also requires a complete transparency of the process.

n211 Id. at 182. On the procedural side, public inclusion in decision making may be intrinsically valuable regardless of how or whether it affects the substantive outcome. According to this theory, governmental decision making gains democratic legitimacy by making itself transparent and open to criticism. While this may be a valuable end in itself, it tells us little about the particular value of opening human rights review to public comment. n212 See introduction. n213 Beth Lyon, New International Human Rights Standards on Unauthorized Immigrant Worker Rights: Seizing an Opportunity to Pull Governments Out of the Shadows, 10 REFUGEES & HUMAN RTS. 551, 567-68 (2005). n214 One of the main critiques of EISs is that they tend to ignore the public's values in favor of the experts' values. Robin Gregory, Ralph Keeney, & Detlof von Winterfeldt, Adapting the Environmental Impact Statement Process to Inform Decision makers, 11 J. POI.' Y ANALYSIS & MGMT. 58, 59-60 (1992).

(Graham J. Reynolds University of British Columbia (UBC), Associate Professor, Faculty of Law, “The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347922 //pa-ef)

In the intellectual property context, a precautionary principle/approach could be applied in several ways. First, a precautionary approach could be applied by the relevant granting bodies in determining whether a patent ought to be granted43 or whether a trademark ought to be registered. Second, the precautionary principle could be applied as an interpretive tool in determining whether an intellectual property right has been infringed;44 whether a compulsory licence ought to be granted; or whether a defence to copyright infringement ought to apply. Third, the precautionary principle could be applied at the point at which proposals, the implementation of which may result in “important” effects on the public domain, are submitted to a minister or Cabinet for approval.45 Fourth, and the subject of this chapter, another situation in which the precautionary principle could be usefully applied is at the point at which proposals for intellectual property reform are introduced. The application of the precautionary principle in the context of intellectual property reform could require legislative bodies, when evaluating proposed amendments to their intellectual property legislation or new intellectual property legislation, to explicitly consider the impact of any such proposals on the public domain. In the following section, I will consider one possible instantiation of the precautionary principle in the context of intellectual property reform, namely in the form of a PDIA.

4) Integration Legislative impact statements, and in particular HRISs, must be prepared as an integral part of the policy process and not as an after-the-fact formality. That is the hope of Elizabeth Kelly, a senior ACT bureaucrat and member of the consultative committee on the ACT Human Rights Act. She argues that the statement of compatibility will ‘institutionalise human rights considerations at the beginning of the policy process’ and observes that ‘although this work will be invisible to practitioners and the public, in many respects it is where the biggest impact of the Act will be felt’.131 Some mechanism more concrete than a mere recommendation that policy officers consult the Bill of Rights Unit or Human Rights Office during the policy formulation process132 is desirable to ensure that human rights considerations are institutionalised. In the United Kingdom and New Zealand, the mechanism comes from instructions issued by the Cabinet Office. The New Zealand Cabinet Handbook requires that at the policy approval stage Ministers certify to Cabinet that their legislative proposals comply with relevant rights standards.133 In the United Kingdom, the British Cabinet Office Guidance to Departments requires that, at the policy approval stage, ‘a general assessment’ of compatibility is provided to Ministers; and that once the Bill is drafted, ‘a more formal compatibility document is prepared by departmental lawyers in consultation with Law Officers and the Foreign and Commonwealth Office. This document is then passed to the Cabinet Legislation Joint Committee and ultimately forms the basis of the s 19 statement in each House’.134

(Graham J. Reynolds University of British Columbia (UBC), Associate Professor, Faculty of Law, “The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347922 //pa-ef)

In this chapter, I will discuss another way in which the precautionary principle could be applied in the intellectual property context. Specifically, I will suggest that the precautionary principle could be applied at the point at which proposals for reform of intellectual property legislation are formally introduced as part of the legislative process. In the final section of this chapter, I will propose the creation of a Public Domain Impact Assessment (PDIA), a process through which proposals for intellectual property reform, prior to their enactment, are evaluated by an independent review panel in order to determine their potential impact on the public domain.

(Graham J. Reynolds University of British Columbia (UBC), Associate Professor, Faculty of Law, “The Precautionary Principle and its Application in the Intellectual Property Context: Towards a Public Domain Impact Assessment,” pg online @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2347922 //pa-ef)

C. Applying the Precautionary Principle in the Intellectual Property Context In considering the application of the precautionary principle in the intellectual property context, three preliminary questions must be addressed. First, is it appropriate to apply the precautionary principle in the intellectual property context in order to guard against harm to the public domain? Second, in what types of situations (if any) might the precautionary principle be usefully applied in the intellectual property context? Third, how might the precautionary principle be instantiated in the intellectual property context? 1) Is it Appropriate to Apply the Precautionary Principle in Order to Guard Against Harm to the Public Domain?

While the global coronavirus pandemic has diverted attention away from the fraught issue of climate change and what to do about it, the environmental activism of groups such as Extinction Rebellion (XR) has continued to simmer. In fact, this year XR has blended with the Black Lives Matter (BLM) movement such that explicitly anti-capitalist environmental protest and anti-patriarchal, anti-colonial wokery have become intimately entwined. The underlying message is: If you want to save the planet you have to change the system. In practice, all protest movements have many threads – just look at the two-year campaign of the gilets jaunes in France – but the unifying thread is always resentment.

The irony is that both aspects of this counterculture are out-of-date. Rapid advances in technology, facilitated by the free market, have transformed the climate conversation. Whatever Mr Trump’s rhetoric on the issue (and he may well be in the departure lounge by the time you read this), the big energy companies, backed by a raft of environmentally conscious investors, are already transitioning towards renewable and zero-fossil fuel energy precisely because it is now economically viable to do so. And in that process, they are making money. Win-win.

Developing nations regard IPR as an inherent barrier to the international transfer of, and affordable access to, clean technologies in a rapid time frame.[96] According to this view, IPR of clean technologies keeps prices of clean technologies high and limits access. Developing nations have pointed to specific instances to support this view. For example, firms and R&D institutions in developing nations have indicated that commercial firms and public institutions in developed nations refused to license important technologies related to fuel-cells.[97] Local firms in India indicated that they were refused licenses for patented technologies on ozone reduction.[98] Several developing nations have also criticized a small group of multinational companies “MNC”s) owning clean technologies needed by developing nations. These MNCs were criticized for using their ownership of clean technologies as a means to control production, therefore limiting their transfer to the developing nations who needed these clean technologies.[99]

During recent UNFCCC climate change conferences, developing nations suggested limiting or eliminating IPR for clean technologies. Specifically, Brazil, South Africa, China, India, and Russia have suggested rethinking the existing IPR regime, excluding clean technologies from patent protections, introducing a compulsory licensing scheme for clean technologies, and pushing for technology transfer, flexible licensing mechanisms, and institutional mechanisms.[100] The president of Bolivia likewise commanded that “innovation and technology related to climate change must be within the public domain, not under any private monopolistic patent regime that obstructs and makes technology transfer more expensive to developing countries.”[101]

Uptake and use of material from the public domain is similar to the phenomenon of user-led innovation, in which end consumers adapt and modify products, later sharing them with each other and with producing firms. In as much as enterprises are able to successfully capture value from the user innovation process, these activities are similar to using inspiration and material from the public domain to create new products. Limited empirical evidence from the software industry suggests that some companies that normally enjoy exclusive copyright in their products are beginning to promote user innovation as part of their business strategy, finding benefits in the practice (Haefliger et al., 2010). Such benefits might include community reputation as well as added utility from new users of a product due to network effects. The presence of private benefits combined with the low cost of widely disseminating details of an innovation has led to a reassessment of the “free riding” problem in user communities. If the cost of freely revealing is lower than the expected private benefit of doing so, researchers Eric von Hippel and Georg von Krogh suggest that participants are likely to engage in a “private-collective” model of innovation. Firms in our study exploited public domain inputs for many of the same reasons that user-innovators engage in private-collective innovation. In particular, they often bundled their public domain products with other complementary goods in order to appropriate the value associated with their own innovation practice. Managers also reported lower costs associated with using public domain materials as an incentive. Incorporating free and open-source inputs early in a new product helped some developers to “fulfill the credible promise” of a prototype, stimulating further contributions and investment. Some respondents actively engaged with communities of users, for example, fans of Sherlock Holmes or H.P. Lovecraft, to develop new adaptations of those public domain works. The openness of such works to collective remixing led to more innovative and more radically collaborative products.