SCN: Fencing off the commons

[Steve]

x-no-archive: yes  

===================  


(Lawrence Lessig, Foreign Policy)---The Internet revolution has 
ended just as surprisingly as it began. None expected the 
explosion of creativity that the network produced; few expected 
that explosion to collapse as quickly and profoundly as it has. The 
phenomenon has the feel of a shooting star, flaring unannounced 
across the night sky, then disappearing just as unexpectedly. 
Under the guise of protecting private property, a series of new 
laws and regulations are dismantling the very architecture that 
made the Internet a framework for global innovation.   

Neither the appearance nor disappearance of this revolution is 
difficult to understand. The difficulty is in accepting the lessons of 
the Internet's evolution. The Internet was born in the United States, 
but its success grew out of notions that seem far from the modern 
American ideals of property and the market. Americans are 
captivated by the idea, as explained by Yale Law School professor 
Carol Rose, that the world is best managed "when divided among 
private owners" and when the market perfectly regulates those 
divided resources. But the Internet took off precisely because core 
resources were not "divided among private owners." Instead, the 
core resources of the Internet were left in a "commons." It was this 
commons that engendered the extraordinary innovation that the 
Internet has seen. It is the enclosure of this commons that will bring 
about the Internet's demise.   

This commons was built into the very architecture of the original 
network. Its design secured a right of decentralized innovation. It 
was this "innovation commons" that produced the diversity of 
creativity that the network has seen within the United States and, 
even more dramatically, abroad. Many of the Internet innovations 
we now take for granted (not the least of which is the World Wide 
Web) were the creations of "outsiders" - foreign inventors who 
freely roamed the commons. Policymakers need to understand the 
importance of this architectural design to the innovation and 
creativity of the original network. The potential of the Internet has 
just begun to be realized, especially in the developing world, where 
many "real space" alternatives for commerce and innovation are 
neither free nor open.   

Yet old ways of thinking are reasserting themselves within the 
United States to modify this design. Changes to the Internet's 
original core will in turn threaten the network's potential 
everywhere - staunching the opportunity for innovation and 
creativity. Thus, at the moment this transformation could have a 
meaningful effect, a counterrevolution is succeeding in 
undermining the potential of this network.   

The motivation for this counterrevolution is as old as revolutions 
themselves. As Niccolò Machiavelli described long before the 
Internet, "Innovation makes enemies of all those who prospered 
under the old regime, and only lukewarm support is forthcoming 
from those who would prosper under the new." And so it is today 
with us. Those who prospered under the old regime are threatened 
by the Internet. Those who would prosper under the new regime 
have not risen to defend it against the old; whether they will is still 
a question. So far, it appears they will not.   

The Neutral Zone   

A "commons" is a resource to which everyone within a relevant 
community has equal access. It is a resource that is not, in an 
important sense, "controlled." Private or state-owned property is a 
controlled resource; only as the owner specifies may that property 
be used. But a commons is not subject to this sort of control. 
Neutral or equal restrictions may apply to it (an entrance fee to a 
park, for example) but not the restrictions of an owner. A commons, 
in this sense, leaves its resources "free."   

Commons are features of all cultures. They have been especially 
important to cultures outside the United States - from communal 
tenure systems in Switzerland and Japan to irrigation communities 
within the Philippines. But within American intellectual culture, 
commons are treated as imperfect resources. They are the object 
of "tragedy," as ecologist Garrett Hardin famously described. 
Wherever a commons exists, the aim is to enclose it. In the 
American psyche, commons are unnecessary vestiges from times 
past and best removed, if possible.   

For most resources, for most of the time, the bias against 
commons makes good sense. When resources are left in common, 
individuals may be driven to overconsume, and therefore deplete, 
them. But for some resources, the bias against commons is 
blinding. Some resources are not subject to the "tragedy of the 
commons" because some resources cannot be "depleted." (No 
matter how much we use Einstein's theories of relativity or copy 
Robert Frost's poem "New Hampshire," those resources will 
survive.) For these resources, the challenge is to induce provision, 
not to avoid depletion. The problems of provision are very different 
from the problems of depletion - confusing the two only leads to 
misguided policies.   

This confusion is particularly acute when considering the Internet. 
At the core of the Internet is a design (chosen without a clear 
sense of its consequences) that was new among large-scale 
computer and communications networks. Named the "end-to-end 
argument" by network theorists Jerome Saltzer, David Clark, and 
David Reed in 1984, this design influences where "intelligence" in 
the network is placed. Traditional computer-communications 
systems located intelligence, and hence control, within the network 
itself. Networks were "smart"; they were designed by people who 
believed they knew exactly what the network would be used for.   

But the Internet was born at a time when a different philosophy 
was taking shape within computer science. This philosophy ranked 
humility above omniscience and anticipated that network designers 
would have no clear idea about all the ways the network could be 
used. It therefore counseled a design that built little into the 
network itself, leaving the network free to develop as the ends (the 
applications) wanted.   

The motivation for this new design was flexibility. The 
consequence was innovation. Because innovators needed no 
permission from the network owner before different applications or 
content got served across the network, innovators were freer to 
develop new modes of connection. Technically, the network 
achieved this design simply by focusing on the delivery of packets 
of data, oblivious to either the contents of the packets or their 
owners. Nor does the network concern itself that all the packets 
make their way to the other side. The network is "best efforts"; 
anything more is provided by the applications at both ends. Like an 
efficient post office (imagine!), the system simply forwards the data 
along.   

Since the network was not optimized for any single application or 
service, the Internet remained open to new innovation. The World 
Wide Web is perhaps the best example. The Web was the creation 
of computer scientist Tim Berners-Lee at the European 
Organization for Nuclear Research (CERN) laboratory in Geneva 
in late 1990. Berners-Lee wanted to enable users on a network to 
have easy access to documents located elsewhere on the 
network. He therefore developed a set of protocols to enable 
hypertext links among documents located across the network. 
Because of end-to-end, these protocols could be layered on top of 
the initial protocols of the Internet. This meant the Internet could 
grow to embrace the Web. Had the network compromised its 
commitment to end-to-end - had its design been optimized to favor 
telephony, for example, as many in the 1980s wanted - then the 
Web would not have been possible.   

This end-to-end design is the "core" of the Internet. If we can think 
of the network as built in layers, then the end-to-end design was 
created by a set of protocols implemented at the middle layer - 
what we might call the logical, or code layer, of the Internet. Below 
the code layer is a physical layer (computers and the wires that 
link them). Above the code layer is a content layer (material that 
gets served across the network). Not all these layers were 
organized as commons. The computers at the physical layer are 
private property, not "free" in the sense of a commons. Much of the 
content served across the network is protected by copyright. It, 
too, is not "free."   

At the code layer, however, the Internet is a commons. By design, 
no one controls the resources for innovation that get served across 
this layer. Individuals control the physical layer, deciding whether a 
machine or network gets connected to the Internet. But once 
connected, at least under the Internet's original design, the 
innovation resources for the network remained free.   

No other large scale network left the code layer free in this way. 
For most of the history of telephone monopolies worldwide, 
permission to innovate on the telephone platform was vigorously 
controlled. In the United States in 1956, AT&T successfully 
persuaded the U.S. Federal Communications Commission to block 
the use of a plastic cup on a telephone receiver, designed to block 
noise from the telephone microphone, on the theory that AT&T 
alone had the right to innovation on the telephone network.   

The Internet might have remained an obscure tool of government-
backed researchers if the telephone company had maintained this 
control. The Internet would never have taken off if ordinary 
individuals had been unable to connect to the network by way of 
Internet service providers (ISPs) through already existing 
telephone lines. Yet this right to connect was not preordained. It is 
here that an accident in regulatory history played an important role. 
Just at the moment the Internet was emerging, the telephone 
monopoly was being moved to a different regulatory paradigm. 
Previously, the telephone monopoly was essentially free to control 
its wires as it wished. Beginning in the late 1960s, and then more 
vigorously throughout the 1980s, the government began to require 
that the telephone industry behave neutrally - first by insisting that 
telephone companies permit customer premises equipment (such 
as modems) to be connected to the network, and then by requiring 
that telephone companies allow others to have access to their 
wires.   

This kind of regulation was rare among telecommunications 
monopolies worldwide. In Europe and throughout the world, 
telecommunications monopolies were permitted to control the uses 
of their networks. No requirement of access operated to enable 
competition. Thus no system of competition grew up around these 
other monopolies. But when the United States broke up AT&T in 
1984, the resulting companies no longer had the freedom to 
discriminate against other uses of their lines. And when ISPs 
sought access to the local Bell lines to enable customers to 
connect to the Internet, the local Bells were required to grant 
access equally. This enabled a vigorous competition in Internet 
access, and this competition meant that the network could not 
behave strategically against this new technology. In effect, through 
a competitive market, an end-to-end design was created at the 
physical layer of the telephone network, which meant that an end-
to-end design could be layered on top of that.   

This innovation commons was thus layered onto a physical 
infrastructure that, through regulation, had important commons-like 
features. Common-carrier regulation of the telephone system 
assured that the system could not discriminate against an 
emerging competitor, the Internet. And the Internet itself was 
created, through its end-to-end design, to assure that no particular 
application or use could discriminate against any other 
innovations. Neutrality existed at the physical and code layer of the 
Internet.   

An important neutrality also existed at the content layer of the 
Internet. This layer includes all the content streamed across the 
network - Web pages, MP3s, e-mail, streaming video - as well as 
application programs that run on, or feed, the network. These 
programs are distinct from the protocols at the code layer, 
collectively referred to as TCP/IP (including the protocols of the 
World Wide Web). TCP/IP is dedicated to the public domain.   

But the code above these protocols is not in the public domain. It 
is, instead, of two sorts: proprietary and nonproprietary. The 
proprietary includes the familiar Microsoft operating systems and 
Web servers, as well as programs from other software companies. 
The nonproprietary includes open source and free software, 
especially the Linux (or GNU/Linux) operating system, the Apache 
server, as well as a host of other plumbing-oriented code that 
makes the Net run.   

Nonproprietary code creates a commons at the content layer. The 
commons here is not just the resource that a particular program 
might provide - for example, the functionality of an operating 
system or Web server. The commons also includes the source 
code of software that can be drawn upon and modified by others. 
Open source and free software ("open code" for short) must be 
distributed with the source code. The source code must be free for 
others to take and modify. This commons at the content layer 
means that others can take and build upon open source and free 
software. It also means that open code can't be captured and tilted 
against any particular competitor. Open code can always be 
modified by subsequent adopters. It, therefore, is licensed to 
remain neutral among subsequent uses. There is no "owner" of an 
open code project.   

In this way, and again, parallel to the end-to-end principle at the 
code layer, open code decentralizes innovation. It keeps a platform 
neutral. This neutrality in turn inspires innovators to build for that 
platform because they need not fear the platform will turn against 
them. Open code builds a commons for innovation at the content 
layer. Like the commons at the code layer, open code preserves 
the opportunity for innovation and protects innovation against the 
strategic behavior of competitors. Free resources induce 
innovation.   

An Engine of Innovation   

The original Internet, as it was extended to society generally, 
mixed controlled and free resources at each layer of the network. 
At the core code layer, the network was free. The end-to-end 
design assured that no network owner could exercise control over 
the network. At the physical layer, the resources were essentially 
controlled, but even here, important aspects were free. One had 
the right to connect a machine to the network or not, but telephone 
companies didn't have the right to discriminate against this 
particular use of their network. And finally, at the content layer, 
many of the resources served across the Internet were controlled. 
But a crucial range of software building essential services on the 
Internet remained free. Whether through an open source or free 
software license, these resources could not be controlled.   

This balance of control and freedom produced an unprecedented 
explosion in innovation. The power, and hence the right, to 
innovate was essentially decentralized. The Internet might have 
been an American invention, but creators from around the world 
could build upon this network platform. Significantly, some of the 
most important innovations for the Internet came from these 
"outsiders."   

As noted, the most important technology for accessing and 
browsing the Internet (the World Wide Web) was not invented by 
companies specializing in network access. It wasn't America Online 
(AOL) or Compuserve. The Web was developed by a researcher in 
a Swiss laboratory who first saw its potential and then fought to 
bring it to fruition. Likewise, it wasn't existing e-mail providers who 
came up with the idea of Web-based e-mail. That was co-created 
by an immigrant to the United States from India, Sabeer Bhatia, 
and it gave birth to one of the fastest growing communities in 
history - Hotmail.   

And it wasn't traditional network providers or telephone companies 
that invented the applications that enabled online chatting to take 
off. The original community-based chatting service (ICQ) was the 
invention of an Israeli, far from the trenches of network design. His 
service could explode (and then be purchased by AOL for $400 
million) only because the network was left open for this type of 
innovation.   

Similarly, the revolution in bookselling initiated by Amazon.com 
(through the use of technologies that "match preferences" of 
customers) was invented far from the traditional organs of 
publishers. By gathering a broad range of data about purchases by 
customers, Amazon - drawing upon technology first developed at 
MIT and the University of Minnesota to filter Usenet news - can 
predict what a customer is likely to want. These recommendations 
drive sales, but without the high cost of advertising or promotion. 
Consequently, booksellers such as Amazon can outcompete 
traditional marketers of books, which may account for the rapid 
expansion of Amazon into Asia and Europe.   

These innovations are at the level of Internet services. Far more 
profound have been innovations at the level of content. The 
Internet has not only inspired invention, it has also inspired 
publication in a way that would never have been produced by the 
world of existing publishers. The creation of online archives of 
lyrics and chord sequences and of collaborative databases 
collecting information about compact discs and movies 
demonstrates the kind of creativity that was possible because the 
right to create was not controlled.   

Again, the innovations have not been limited to the United States. 
OpenDemocracy.org, for example, is a London-based, Web-
centered forum for debate and exchange about democracy and 
governance throughout the world. Such a forum is possible only 
because no coordination among international actors is needed. 
And it thrives because it can engender debate at a low cost.   

This history should be a lesson. Every significant innovation on the 
Internet has emerged outside of traditional providers. The new 
grows away from the old. This trend teaches the value of leaving 
the platform open for innovation. Unfortunately, that platform is 
now under siege. Every technological disruption creates winners 
and losers. The losers have an interest in avoiding that disruption 
if they can. This was the lesson Machiavelli taught, and it is the 
experience with every important technological change over time. It 
is also what we are now seeing with the Internet. The innovation 
commons of the Internet threatens important and powerful pre-
Internet interests. During the past five years, those interests have 
mobilized to launch a counterrevolution that is now having a global 
impact.   

This movement is fueled by pressure at both the physical and 
content layers of the network. These changes, in turn, put 
pressure on the freedom of the code layer. These changes will 
have an effect on the opportunity for growth and innovation that 
the Internet presents. Policymakers keen to protect that growth 
should be skeptical of changes that will threaten it. Broad-based 
innovation may threaten the profits of some existing interests, but 
the social gains from this unpredictable growth will far outstrip the 
private losses, especially in nations just beginning to connect.   

Fencing Off the Commons   

The Internet took off on telephone lines. Narrowband service 
across acoustic modems enabled millions of computers to connect 
through thousands of ISPs. Local telephone service providers had 
to provide ISPs with access to local wires; they were not permitted 
to discriminate against Internet service. Thus the physical platform 
on which the Internet was born was regulated to remain neutral. 
This regulation had an important effect. A nascent industry could 
be born on the telephone wires, regardless of the desires of 
telephone companies.   

But as the Internet moves from narrowband to broadband, the 
regulatory environment is changing. The dominant broadband 
technology in the United States is currently cable. Cable lives 
under a different regulatory regime. Cable providers in general 
have no obligation to grant access to their facilities. And cable has 
asserted the right to discriminate in the Internet service it provides.  
 
Consequently, cable has begun to push for a different set of 
principles at the code layer of the network. Cable companies have 
deployed technologies to enable them to engage in a form of 
discrimination in the service they provide. Cisco, for example, 
developed "policy-based routers" that enable cable companies to 
choose which content flows quickly and which flows slowly. With 
these, and other technologies, cable companies will be in a 
position to exercise power over the content and applications that 
operate on their networks.   

This control has already begun in the United States. ISPs running 
cable services have exercised their power to ban certain kinds of 
applications (specifically, those that enable peer-to-peer service). 
They have blocked particular content (advertising from 
competitors, for example) when that content was not consistent 
with their business model. The model for these providers is the 
model of cable television generally - controlling access and content 
to the cable providers' end.   

The environment of innovation on the original network will change 
according to the extent that cable becomes the primary mode of 
access to the Internet. Rather than a network that vests 
intelligence in the ends, the cable-dominated network will vest an 
increasing degree of intelligence within the network itself. And to 
the extent it does this, the network will increase the opportunity for 
strategic behavior in favor of some technologies and against 
others. An essential feature of neutrality at the code layer will have 
been compromised, reducing the opportunity for innovation 
worldwide.   

Far more dramatic, however, has been the pressure from the 
content layer on the code layer. This pressure has come in two 
forms. First, and most directly related to the content described 
above, there has been an explosion of patent regulation in the 
context of software. Second, copyright holders have exercised 
increasing control over new technologies for distribution.   

The changes in patent regulation are more difficult to explain, 
though the consequence is not hard to track. Two decades ago, 
the U.S. Patent Office began granting patents for software-like 
inventions. In the late 1990s, the court overseeing these patents 
finally approved the practice and approved their extension to 
"business methods." The European Union (EU), meanwhile, 
initially adopted a more skeptical attitude toward software patents. 
But pressure from the United States will eventually bring the EU 
into alignment with American policy.   

In principle, these patents are designed to spur innovation. But 
with sequential and complementary innovation, little evidence 
exists that suggests such patents will do any good, and there is 
increasing evidence that they will do harm. Like any regulation, 
patents tax the innovative process generally. As with any tax, some 
firms - large rather than small, U.S. rather than foreign - are better 
able to bear that tax than others. Open code projects, in particular, 
are threatened by this trend, as they are least able to negotiate 
appropriate patent licenses.   

The most dramatic restrictions on innovation, however, have come 
at the hands of copyright holders. Copyright is designed to ensure 
that artists control their "writings" for a limited time. The aim is to 
secure to copyright holders a sufficient interest to produce new 
work. But copyright laws were crafted in an era long before the 
Internet. And their effect on the Internet has been to transfer 
control over innovation in distribution from many innovators to a 
concentrated few.   

The clearest example of this effect is online music. Before the 
Internet, the production and distribution of music had become 
extraordinarily concentrated. In 2000, for example, five companies 
controlled 84 percent of music distribution in the world. The 
reasons for this concentration are many - including the high costs 
of promotion - but the effect of concentration on artist development 
is profound. Very few artists make any money from their work, and 
the few that do are able to do so because of mass marketing from 
record labels. The Internet had the potential to change this reality. 
Both because the costs of distribution were so low, and because 
the network also had the potential to significantly lower the costs of 
promotion, the cost of music could fall, and revenues to artists 
could rise.   

Five years ago, this market took off. A large number of online 
music providers began competing for new ways to distribute music. 
Some distributed MP3s for money (eMusic.com). Some built 
technology for giving owners of music easier access to their music 
(mp3.com). And some made it much easier for ordinary users to 
"share" their music with other users (Napster). But as quickly as 
these companies took off, lawyers representing old media 
succeeded in shutting them down. These lawyers argued that 
copyright law gave the holders (some say hoarders) of these 
copyrights the exclusive right to control how they get used. 
American courts agreed.   

To keep this dispute in context, we should think about the last 
example of a technological change that facilitated a much different 
model for distributing content: cable TV, which has been 
accurately hailed as the first great Napster. Owners of cable 
television systems essentially set up antenna and "stole" over-the-
air broadcasts and then sold that "stolen property" to their 
customers. But when U.S. courts were asked to stop this "theft," 
they refused. Twice the U.S. Supreme Court held that this use of 
someone else's copyrighted material was not inconsistent with 
copyright law.   

When the U.S. Congress finally got around to changing the law, it 
struck an importantly illustrative balance. Congress granted 
copyright owners the right to compensation from the use of their 
material on cable broadcasts, but cable companies were given the 
right to broadcast the copyrighted material. The reason for this 
balance is not hard to see. Copyright owners certainly are entitled 
to compensation for their work. But the right to compensation 
shouldn't translate into the power to control innovation. Rather 
than giving copyright holders the right to veto a particular new use 
of their work (in this case, because it would compete with over-the-
air broadcasting), Congress assured copyright owners would get 
paid without having the power to control - compensation without 
control.   

The same deal could have been struck by Congress in the context 
of online music. But this time, the courts did not hesitate to extend 
control to the copyright holders. So the concentrated holders of 
these copyrights were able to stop the deployment of competing 
distributors. And Congress was not motivated to respond by 
granting an equivalent compulsory right. The aim of the recording 
company's strategy was plain enough: shut down these new and 
competing models of distribution and replace them with a model for 
distributing music online more consistent with the traditional model. 
 
This trend has been supported by the actions of Congress. In 
1998, Congress passed the Digital Millennium Copyright Act 
(DMCA), which (in)famously banned technologies designed to 
circumvent copyright protection technologies and also created 
strong incentives for ISPs to remove from their sites any material 
claimed to be a violation of copyright.   

On the surface both changes seem sensible enough. Copyright 
protection technologies are analogous to locks. What right does 
anyone have to pick a lock? And ISPs are in the best position to 
assure that copyright violations don't occur on their Web sites. 
Why not create incentives for them to remove infringing 
copyrighted material?   

But intuitions here mislead. A copyright protection technology is 
just code that controls access to copyrighted material. But that 
code can restrict access more effectively (and certainly less subtly) 
than copyright law does. Often the desire to crack protection 
systems is nothing more than a desire to exercise what is 
sometimes called a fair-use right over the copyrighted material. Yet 
the DMCA bans that technology, regardless of its ultimate effect.   

More troubling, however, is that the DMCA effectively bans this 
technology on a worldwide basis. Russian programmer Dimitry 
Sklyarov, for example, wrote code to crack Adobe's eBook 
technology in order to enable users to move eBooks from one 
machine to another and to give blind consumers the ability to 
"read" out loud the books they purchased. The code Sklyarov 
wrote was legal where it was written, but when it was sold by his 
company in the United States, it became illegal. When he came to 
the United States in July 2001 to talk about that code, the FBI 
arrested him. Today Sklyarov faces a sentence of 25 years for 
writing code that could be used for fair-use purposes, as well as to 
violate copyright laws.   

Similar trouble has arisen with the provision that gives ISPs the 
incentive to take down infringing copyrighted material. When an 
ISP is notified that material on its site violates copyright, it can 
avoid liability if it removes the material. As it doesn't have any 
incentive to expose itself to liability, the ordinary result of such 
notification is for the ISP to remove the material. Increasingly, 
companies trying to protect themselves from criticism have used 
this provision to silence critics. In August 2001, for example, a 
British pharmaceutical company invoked the DMCA in order to 
force an ISP to shut down an animal rights site that criticized the 
British company. Said the ISP, "It's very clear [the British company] 
just wants to shut them up," but ISPs have no incentive to resist 
the claims.   

In all these cases, there is a common pattern. In the push to give 
copyright owners control over their content, copyright holders also 
receive the ability to protect themselves against innovations that 
might threaten existing business models. The law becomes a tool 
to assure that new innovations don't displace old ones - when 
instead, the aim of copyright and patent law should be, as the U.S. 
Constitution requires, to "promote the progress of science and 
useful arts."   

These regulations will not only affect Americans. The expanding 
jurisdiction that American courts claim, combined with the push by 
the World Intellectual Property Organization to enact similar 
legislation elsewhere, means that the impact of this sort of control 
will be felt worldwide. There is no "local" when it comes to 
corruption of the Internet's basic principles. As these changes 
weaken the open source and free software movements, countries 
with the most to gain from a free and open platform lose. Those 
affected will include nations in the developing world and nations 
that do not want to cede control to a single private corporation. 
And as content becomes more controlled, nations that could 
otherwise benefit from vigorous competition in the delivery and 
production of content will also lose. An explosion of innovation to 
deliver MP3s would directly translate into innovation to deliver 
telephone calls and video content. Lowering the cost of this 
medium would dramatically benefit nations that still suffer from 
weak technical infrastructures.   

Policymakers around the world must recognize that the interests 
most strongly protected by the Internet counterrevolution are not 
their own. They should be skeptical of legal mechanisms that 
enable those most threatened by the innovation commons to resist 
it. The Internet promised the world - particularly the weakest in the 
world - the fastest and most dramatic change to existing barriers to 
growth. That promise depends on the network remaining open to 
innovation. That openness depends upon policy that better 
understands the Internet's past.   


Copyright 2001 Foreign Policy
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