A Gaudier Future that Almost Blinds the Eye

A review of Lawrence Lessig's book The Future of Ideas: The Fate of the Commons in a Connected World by Daphne Keller in the Duke Law Journal

" In The Future of Ideas, Professor Lawrence Lessig argues compellingly that the Internet has proven value as a commons for innovation, and that we are in the process of destroying that value. In a sort of reverse tragedy of the commons, he argues, extending private property rights over the Internet's constituent parts will stifle -- or outlaw -- the very creativity that built "cyberspace" in the first place. Lessig, a preeminent legal scholar and attorney, here follows up on the foundation laid in his important first book, Code.

The Internet's potential as a platform for innovation, Lessig argues, ultimately depends on how free access and private control over the network's underlying resources are configured. Lessig outlines actual and possible property regimes in Internet resources using Professor Yochai Benkler's three-layer model. He conceptually divides the Internet into a layer of physical infrastructure, a layer of logical coordinating protocols or code, and a layer of content conveyed over the Internet. The Internet's potential as a platform for continuing innovation, he argues, depends on the balance of public access and private control over each of these three layers. The property regime that we have known so far, Lessig says, has preserved sufficient access to ensure a space for innovation. A regime that upsets the balance by expanding property rights and private control at the expense of the commons, though, will stifle innovation. We are rapidly moving, Lessig argues, toward a regime that sacrifices opportunities for innovation in favor of private control.

The Future of Ideas is timely, disturbing, and persuasive. Lessig convincingly illustrates the danger of applying economic lessons learned from real property or widgets to the novel communications resource that is the Internet. He synthesizes the traditional concerns of communications law (who has access to the communications infrastructure?) with those of intellectual property law (to what extent can forms of information themselves be owned?), and demonstrates that the two fields are converging significantly with respect to the Internet. His argument for preserving the innovation commons suggests that, as a matter of resource management and property theory, the two sets of questions have been closely connected all along. In both fields, the law accounts for the unusual characteristics of communications resources by adjusting the usual rules of private property.

At times, however, Lessig's argument is snarled by the complexity of the Internet's underlying resources. The Internet includes both resources that are nonrivalrous (meaning that they are capable of being shared by all without depletion) and resources that are rivalrous (meaning that they are congestible or exhaustible by overuse). The property law that best takes advantage of nonrivalrousness may be inappropriate for rivalrous resources, and vice versa. Similarly, lawmakers might arrive at different optimal property regimes for the Internet, depending on whether they prioritize the network's role as a platform for human communication or its foundation in physical components built by costly private investment. The three-layer model for the Internet would seem to resolve these tensions by allowing different property rules for different constitutive resources: economic-value-maximizing rules for finite physical layer resources and participation-maximizing rules for those nonrivalrous resources at the code and content layer which are more directly linked to speech and democratic participation. Yet the neat division set forth at the start of The Future of Ideas, in which physical resources such as wires and cables are controlled private property while resources at the Internet's code layer are commonly accessible, does not quite play out in the book's more detailed discussions. Lessig ultimately defines the code layer so expansively that he undermines any fully independent property regime in the physical layer.

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"According to Lessig, some resources are most valuable when held in common such that all people have equal access, while other resources are best managed as private property. The Internet, he argues, contains resources of both kinds, and has been a source of valuable innovation because of a property regime that combined common access to some resources (such as technical protocols) with private control over others (including part or all of the Internet's physical infrastructure). The Future of Ideas develops a careful model of this mixed, innovation-maximizing property regime, using a three-layer model. The book's aim, Lessig writes, "is to understand how this mix produced the innovation that we have seen so far and why the changes to this mix will kill what we have seen so far." "

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"Lessig's definitions of the terms "free" and "commons" are distinct from some more economically conventional uses of the same terms. In The Future of Ideas, a commons may be a paid-access resource, so long as the terms of access are neutrally imposed; this varies from the widely used definition of the commons as a regime of pure privilege, in which the resource may be used by any person free of charge. Similarly, for Lessig, "free" resources include both those which are available without payment and those which are available subject to liability rules, under which some form of collective valuation determines a fair and neutrally imposed price. As Professor James Boyle has pointed out, this focus on "freedom from the will of another, not freedom from the background constraints of the economic system," diverges from other accounts of the Internet's commons as requiring costless access to some resources."

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"If a software developer wants to build a new application for the Internet, she will need a computer, access to the Internet, and skills. But she will not need anyone's permission, because the network is incapable of excluding any compatible application. If she builds it, it will run. This, to Lessig, is part of the genius of the Internet and perhaps the single most important factor accounting for its success. The code layer of the Internet, the protocols which set terms and conditions for content to flow across the network, could have been architected to permit exclusion (by keeping certain users or applications off the network) or discrimination (by giving certain users or applications slower or more expensive service, for example). Instead, the original code layer established the Internet as a commons open to any who wish to use it.

This technical inability to exclude or discriminate was a conscious design choice by the Internet's earliest developers, Lessig claims, implementing a design principle now known as end-to-end. Following end-to-end design, the "dumb" machines at the center of the network, such as routers, perform only the minimal, simple functions necessary to transfer data between "smart" machines. Complex functionality is relegated to the edge of the network -- to machines that serve web content, for example, or reassemble that content in a browser window. The simplicity and flexibility of the underlying Internet protocol for "dumb" data transmission has important consequences for innovation, Lessig argues. New applications, including applications unforeseen by the Internet's earliest developers, can run without any adjustment to the machines making up the network's center. And, crucially, the end-to-end Internet is a neutral platform -- it cannot exclude or discriminate against any application built to run on the Internet. Anyone -- from a highly paid programmer in Redmond to a child at her parents' computer in Jakarta -- can try something new and share it with the rest of the network. The productivity of this innovation commons has been nothing short of astonishing, as decentralized crews of technological, cultural, and economic innovators have converged online to create everything from Apache server software to ebay. End-to-end design "renders the Internet an innovation commons, where innovators can develop and deploy new applications or content without the permission of anyone else . . . . The system is built -- constituted -- to remain open to whatever innovation comes along."

Code layer end-to-end principles, as embodied in the Internet, provide Lessig's model for innovation commons on an open network. He has a countermodel, too -- an innovation graveyard on a closed network, as it were. This model is the telephone system as administered by AT&T for much of the last century. While its monopoly lasted, AT&T had legal authority to accept or reject any devices added to the telephone network. The company's own labs were responsible for remarkable developments, but at the same time AT&T was a bottleneck for all evolution of the telephone system. As Lessig notes, "there was nothing one could do with one's innovation unless AT&T bought it." In fact, one innovation rejected by AT&T was a proposed digital packet-switching technology much like that eventually made successful by the Internet. These two models, the Internet and the AT&T phone system, respectively represent extremes of freedom and control at the code layer.

Comparing innovation in the two systems, Lessig draws a lesson: we may expect more productive innovation from systems that lack centralized control over creative tinkering. Thus, if we expect a resource to be most valuable as a platform for innovative new uses, as is the case when future uses of a technology are uncertain, then the most productive property regime is one of open access. "Plasticity -- the ability of a system to evolve easily in a number of ways -- is optimal in a world of uncertainty." Moreover, entities interested in preserving the status quo should not be given control over a resource most useful as a platform for new developments.

Read the entire book review.