October 07, 2002
tottering architecture of intellectual property
Between the advent of the integrated
circuit in the 1950s and the social growth of the internet in the
early 1980s, digital media made a steady, developing impact on everyday
American life. Following a greater expansion in the late 1980s,
and especially through the takeoff of the World Wide Web in the
early 1990s, the world of networked digital devices has expanded
exponentially, touching and reshaping nearly aspect of life, from
journalism to marketing, education to crime, military tactics to
sexuality. The promises of this transformation are well-known, and
range from the incidental to the utopian. At the same time, anxieties
about the impact of the digital world upon the analog were widespread,
appearing in popular culture and policymaking.
These anxieties have had their own, more recent, period of
growth, influence, and penetration into everyday life. The demonstrated
and increasingly effective benefits networked computing offered
elicited fears - and, more significantly, responses - based precisely
on those goods. The powers of increased information availability
have triggered fears in those who profit by controlled information
environments. Enhanced abilities to collaborate suggest expanded
means to conspire. Potent tools for developing multimedia objects
can threaten those whose interests reside in the stability of individual
media assets. The ease of transferring such digital documents facilitates
learning, community growth, and personal enjoyment, yet terrifies
those with established stakes in controlling the distribution of
those valued goods.
pushes for the passive model; the technology pushes for the
active; we should be fighting for the active.
According to Lawrence Lessig, this correlation of anxiety to promise
has crystallized into a new pattern. As described in his The
Future of Ideas, those threatened by certain key aspects
of the digital world have coalesced, organized policies, and launched
a strategy to radically reconfigure the net so as to protect their
position. This strategy, which Lessig names "enclosure of the
digital commons", threatens to stunt the net's growth, quash
some of its goods, and nullify a great deal of its potential for
further social benefit. This article will review and assess the
book, then examine how its predictions have fared in the year since
The Future of Ideas is remarkably readable, which, in
part, accounts for its power and success. This is remarkable, in
that Lessig weaves together fields not known for their ready accessibility:
law, policy, networked computing, history of technology. The book
makes these fields engaging through a style that is informal at
times, more like a lecture or (more appropriately) a lawyer's address
to a jury. Lessig addresses us frequently, asking the reader directly
to consider, reflect, or picture. Rhetorical questions stud these
lectures, compelling readers to engage with their own answers, then
with the book's. Key terms and formulations repeat within and between
chapters, knitting together disparate components while keeping the
argument ever-present (for example, this
Flash version of a Lessig talk). Extensive research and consultation
are everywhere apparent, yet not in an intimidating way. To his
credit, Lessig practices what he preaches by relying extensively
on internet sources.
From the start, all of the arguments in The Future of Ideas
rest on two theories about digital media in a networked environment:
the notion of "the commons," and Yochai Benkler's (PDF)
tripartite model of communication systems. English common law is
responsible for the first, which describes a resource or good not
owned by any individual or private institution. A commons, instead,
is public property, and accessible to all. Older examples include
a town green, a toll-less turnpike, and common fishing grounds.
More modern instances are public parks. Although the language brings
to mind connotations of nature and stability, commons have historically
been defined, if not created by humans, and change dynamically.
American television policies set aside a certain area for nonprofit,
unowned usage, in public access channels. Governments can buy up
private lands and turn them into parks. Famously, British landlords
enclosed a series of commons to turn them into private grazing lands.
This "enclosure movement" yielded profits and accumulated
capital for the owners, while dispossessing many farmers, who in
turn fled to cities and sparked a growth in urban centers before
the industrial revolution arrived (James Boyle, "The
Second Enclosure Movement and the Construction of the Public Domain").
The other key component for Lessig's brief, Benkler's theory,
holds that all communication systems involve three layers:
At the bottom is a "physical" layer, across which
communication travels. This is the computer, or wires, that
link computers on the Internet. In the middle is a "logical"
or "code" layer - the code that makes the hardware
run. Here we might include the protocols that define the Internet
and the software upon which those protocols run. At the top
is a "content" layer - the actual stuff that gets
said or transmitted across these wires. Here we include digital
images, texts, on-line movies, and the like. (23)
This model applies well to nondigital systems. For example,
public speaking depends on having access to a space permitting such
speech. Communication by print requires printing presses (physical
layer), practices of distribution, access, and literacy (code),
and stories or arguments (content). Each layer may be described,
according to Benkler, by a degree of control. Literacy, for example,
can be a freely available social good, supported by public education;
it may also be controlled and restricted to a few, as when druids
kept the full meaning of runic codes a secret for themselves. The
physical layer, of course, can change hands and levels of access.
Content can be free to all (the telephone book) or privy only to
a few (the inner documents of Scientology). The world of the public
domain, from the ideas of an age to movies whose copyright has lapsed,
is such a commons from which any may partake.
As the above passage shows, Lessig relies on this framework
to describe the architecture, the complex system of computers, routers,
phone lines, TCP/IP protocols, operating systems, and content that
is the internet. The most salient feature of this structure is its
"end to end" form, the lack of intervention or active
intelligence between end users. Accessing a Web page, sending email,
downloading a Flash movie requires little of the network between
users, except efficient packet-switching. Without intervening controls,
then, users are free to create and share their projects. "[T]he
end-to-end principle renders the Internet an innovation commons,
where innovators can develop and deploy new applications or content
without the permission of anyone else" (40). Since nobody
owns anything more than a tiny fraction of the hardware, nobody
can force the net into an unwanted shape, or take it away. Information
- programs, notes, movie files - proceeds from user to user without
effective conscious interference.
Given the historical bases of these two foundational concepts,
discussions of the book's arguments, polemical nature, and call
to arms (see below) as situated in the present slight one of its
key features. Furthermore, after laying out enclosure and Benkler's
layers, in order to explain his argument about where enclosure is
going, Lessig has describe where the environment and its problematic
benefits have come from. Nearly one third of The Future of Ideas
consists of a history of the internet and digital media, understood
as a zone of creativity and rapid development, with positive effects
even in the non-wired world. This section of the book (portions
of Part I, all of Part II) is very valuable, in its accessibility,
brevity, and currency.
Lessig draws our attention to the information architecture
of the early internet, describing it as open and free, and therefore
a fertile commons for innovation. What resulted from this space?
The World Wide Web, for one. Berners-Lee's protocols were released
into the internet without control from any of Benkler's layers:
physical, code, or content. This globe-spanning colossus appeared
on the commons, and transformed the world so widely as to become
synonymous with "internet" for many. The net made room
for other digital products, such as hypertext books and Web-based
movies. In fact, the hypertext form appears as a powerful good throughout
This innovation commons has shaped the nondigital world as
well. Many businesses have, of course, changed their operations
to include Web-based marketing, internet communication, and distributed
asset management systems. Customer access to a planetary network
of information has empowered critical purchasing, while expanding
markets. As Lessig phrases it, the innovation-happy net has yielded
new markets, means of distribution, demand, and participation. User
literacies in using these technologies (how to surf the Web, send
and receive email, etc.) have expanded, as they have been (largely)
However, the benefits and promise of further social goods from
the internet appeared while causing concomitant and increasing anxieties
and panics. Those who saw their business or political models being
sapped by the digital world, and especially those who could not
roll with the net to take advantage of its affordances, have fought
back by adapting and creating new regimes of control. The nature
of the digital world requires new ways of pinning behavior down.
After all, digital material isn't rivalrous, in the economic sense
- if I take your car, you can't drive it, but if I copy your song,
you still retain it, untouched. Like most copyright activists, Lessig
reaches back to Jefferson's famous warnings that intellectual property
is a chimera, a bad analogy slapped onto the mental (or, in our
case, digital) world from the physical. "The digital world
is closer to the world of ideas than to the world of things"
(116). In order to wrangle this new world of being, a reformation
of digital practice occurs across all three levels of Benkler's
levels. Although there is no conspiracy to attack the net, in Lessig's
view, there is nevertheless an overlap of effect between new strategies
in different layers:
At the physical level, the rapid growth of wireless computing
offers an opportunity for changes in the internet's architecture.
Although wireless began in a largely improvised, ad hoc way (think
the possibilities of the market attracted investors very quickly.
The question of allocating spectrum, the decisive one in the creation
of the FCC in the 1930s, arises once more. The first decades of
radio's growth saw an increasingly powerful set of policies to fence
off spectrum, culminating in the 1934 Communications Act (74). Will
the new wireless bands be available to all, or will sections of
it be owned privately?
More urgently, at the code level, changes in how wires and
computers enable connectivity begin to alter the end-to-end principle.
While a series of court decisions and policies shaped telephone
networks into neutral carriers, cable providers have won the right
to protect and shape their networks. In order to protect ever-increasing,
but ever-crowded bandwidth, a cable company may block certain file
forms or content, such as peer-to-peer applications or video files.
Further, insofar as cable companies provide access gateways to users,
they can shape or restrict customer access to certain files or destinations.
A good example of the latter is America On Line, the world's most
popular internet service provider, who has every incentive and many
tools to shape user experience in ways that interrupt end-to-end
architecture. Another example is the ability of search engines to
report bot-crawling results with bias.
The most visible sign of Lessig's enclosure movement at work
is within Beckler's third, or content layer. Patterns of control
are being established primarily through a reassertion and expansion
of the copyright regime. During the early years of the internet,
unrelated legal decisions established a climate of openness for
intellectual property usage. The 1976
Copyright Act codifed fair
use in a clear, national way for the first time. The 1983 "Betamax
decision" (Universal City Studios v. Sony Corporation)
established "timeshifting" as a principle, allowing unauthorized
copying of clearly copyrighted intellectual property for personal
use, via the then-new technology of videotape. As users began digitizing,
creating, and sharing materials on-line, they were initially able
to take advantage of a relaxed copyright atmosphere.
However, as early as 1990 the laws began to change, shifting
the copyright balance from user towards owner. As Jessica Litman,
author of Digital Copyright, points out, a series of cases
established that many uses of computer files, from downloading to
transferring between drives, constituted copying and, as such, fell
under copyright laws. A series of high-profile public hearings held
by Patent Commissioner Lehman's Working Group during the Clinton
administration's years saw the promulgation of Green and White Papers
(1994-1995), which urged changes in copyright policy to allow IP
holders greater control of user activities. The largest IP holders,
most notably the recording and movie industries, scrambled to define
digitial copying of their properties as piracy, then to craft laws
to punish it. The Gray and White Papers culminated in the 1998 passage
of the Digital
Millenium Copyright Act (DMCA), which activated in 2000.
Once the DMCA kicked in (2000), lawsuits raced over the internet.
For example, mp3.com was sued for creating a password-protected
space for users to stash copies of works they'd legitimately purchased.
MP3 defended itself on the ground of space-shifting, the
reasonable enjoyment of a product relocated to a more convenient
space. Although this openly draws on the Betamax decision to allow
time-shifting, federal courts did not see the parallel, and
found against MP3 for enabling illegal copying. More famously, the
RIAA sued Napster for more extravagant file-sharing, especially
under the peer-to-peer structure. Napster tried another tack on
the Betamax defense, arguing that while users could misuse
their service, they were not being encouraged to do so - much as
a hardware store owner could protect herself from charges of abetting
a break-in from having sold a crowbar, a tool with many well-known
positive uses. The digital device could be used for good, as well
as evil, and the latter should not, ran the argument, drive a ruling
that also prohibited a significant instance of the former. Federal
courts found the sheer amount, rather than the proportion, of illicit
filetrading to be enough, and gradually cut Napster down.
draws our attention to the ways copyright becomes a regime of
control. While the laws expand, it is their enforcement
through digital technologies that becomes a major driver of
At a broader level, Lessig draws our attention to the ways copyright
becomes a regime of control. While the laws expand, it is
their enforcement through digital technologies that becomes a major
driver of change. Tracking costs decrease in the networked world,
as compared with the analogue, where vending and consumption remain
fairly decoupled. Violations are easy to monitor, and can be readily
shaped by shrinkwrap agreements. Bots can crawl the net, looking
for violations. Congress has extended copyright terms frequently,
often as Disney's key IP neared the public domain. Rather than allowing
IP to enter the public commons, extended copyright terms expand
the realm of IP control. The most recent iteration, the 1998 Sonny
Bono Act, stretches copyright ownership to seventy years. An increasing
amount of IP remains controlled, under ownership's copyright, for
a longer time. "[Y]ou're not creating incentive to produce
anything new, you are just granting monopoly control for certain
speech in exchange for nothing granted to the public." (Interview
with Sean Pollack, "A Conversation with Lawrence Lessig", February
Such language of control unsurprisingly leads to discussions
of this controlling drive as a move against free speech. From Dunkin'
Donuts to the CPHack application (a deconstruction of popular filtering
program CyberPatrol), copyright holders can portray critics' use
of their materials as copyright violation. Since some speech makes
use of prior speech, the extension of copyright periods reduces
such transformative or edition-based work. As other critics, such
as Siva Vaidhyanathan, have noted, this leads to a limitation on
derivative creativity, such as jazz variations on preexisting tunes,
fan fiction, or DJ mixing. That "the ability to propertize
culture in America is [now] essentially unlimited by the Constitution"
(198) means there is less room to create.
The language of property also brings into play a one-sided
view of IP usage. While some readers (or listeners, players, etc.)
consume products passively, absorbing content without significant
activity on their part, others turn the IP into material for their
own creations. Parodists warp source material to mock it, as The
Wind Done Gone turned Gone With the Wind to confront
its racist context openly. DJs mix songs, sounds, elements, and
samples to bring about new soundscapes. Tinkerers take products
further than they were perhaps intended, as children hacked Lego's
small software and "Aibopet" ramped up the Sony robot
dog's capabilities. The American situation is perhaps not as desirable
as what European law allows, "moral copyright", where
any usage the IP holder deems immoral is actionable; nevertheless,
copyright law in the United States tends to assume passive consumption
as the norm, punishing active:
This is the crucial question of the time. Hollywood pushes
for the passive model; the technology pushes for the active;
we should be fighting for the active.
- Lessig in email interview
The fair use defense, most correctly cited by educators, scholars,
and librarians, begins to wither away. The DMCA admits a fair use
allowance to circumvent anti-copyright coding - in order to better
ascertain a future purchase. In suit after suit, IP holders have
used copyright to limit scholarly and creative use of content, formerly
admissible under fair use (Siva Vaidhyanathan, "Copyright
The cumulative effect of Lessig's argument carried a strongly
political charge, heightened by the book's climactic, repeated calls
to policy-level action. Yet the author takes great pains to emphasize
his politics are nontraditional, not locatable on any left-right
continuum. While the enhanced protection of economic property through
expanded copyright regimes smacks of classic conservatism, Lessig
cites conservative, market-focused Judge Posner repeatedly, and
with approval. His call to arms:
[It] is not the traditional struggle between Left and Right
or between conservative and liberal. To question assumptions
about the scope of 'property' is not to question property. I
am fanatically pro-market. The innovation that I defend is commercial
and noncommercial alike (6)
Both sides equally offend him: "policymakers on the Right
and on the Left race to embrace a system of perfect control".
Put another way, his resistance to overweening control regimes draws
on a mixture of the new left's liberation/democracy discourse and
old libertarianism. It's also a stance appealing to common sense
and rationality, in attacking "[c]ontrol without reason".
Disappointment at the market seeps through the struggle of arguments,
as when Lessig admits that competition should generate ISPs to guarantee
free access, but fails to do so because of a state-limited bandwidth.
"This control is largely benign, at least where markets are
competitive" (110). As Christensen argues in his Innovator's
Dilemma, innovations can threaten the stability of business
models, whose stakeholders react in a limiting way. However, a hint
of a slant towards progressive politics, or at least discourse,
emerges over the course of the book, from the (albeit ironic) call
for "environmentalism in the Internet era" to repeated
appeals for the good of society, to the accumulated attacks on corporations.
Arguments against increased concentration of ownership of media
properties appear fairly unparsed or hedged. A swipe at the entertainment
industry for overdefending "a puny part of the American economy"
simply misses the enormous scale of IP monies.
So how has Lessig's model fared since the release of Future
The threat within Benkler's physical layer is the most modestly
realized of the three. While cable modem access has continued to
grow, and AOL show no signs of corporate collapse, there have been
few cases of restrictions occurring at the hardware and wire level.
While Cisco sells intelligent, configurable routers which clearly
violate the e2e principle, they don't appear to have had a noticeable
impact. Comcast's decision to track users without notification brought
publicity. Competition is too vigorous, and options remain open.
Yet legislation targeted at the content layer, such as the (CBDTPA),
mandates copyright protection built into hardware. Similarly, the
steady drive to increase copy protection often leads to hardware
ramifications, such as Apple's decision to restrict the DVD burning
it once joyously celebrated.
Lessig's book performs better in predicting developments in
the protocol layer. The Federal Communication Commission ruled that
broadband connectivity is essentially an information medium, rather
than a telecommunication device. While this makes some intuitive
sense, the ruling frees cable operators from the requisite openness
of wires that telcos endure, freeing them up to regulate content
as they see fit. Meanwhile, the struggle between open source/free
software and propriety software (operating systems to office apps)
The content layer has emerged as the most visible and effective
instance of the commons fight. Napster was whittled into insignificance.
Lawsuits have dogged p2p firms, while targeting presumably high-volume
individual users as pirates. (For example, the RIAA
suing Verizon to reveal one subscriber's information) Legislation
has entered Congress, as noted above, to mandate hardware blocks
to copyright misuse; Representative Berman has more recently introduced
a bill allowing IP holders to examine users' publicly-available
folders, in order to identify illicit p2p trading.
understated player in this struggle, American librarians, face
a clearly demarcated battlefield. Librarians have traditionally
been key players in the information commons, defenders of intellectual
property access, and, especially after the 1976, copyright laws,
beneficiaries of copyright regulation. The recent digital era
has been less kind...
An understated player in this struggle, American librarians, face
a clearly demarcated battlefield. Librarians have traditionally
been key players in the information commons, defenders of intellectual
property access, and, especially after the 1976, copyright laws,
beneficiaries of copyright regulation (see Bolling's brilliant cartoon,
System Terrorizes Publishing Industry"). The recent digital
era has been less kind: the DMCA scaling back fair use for libraries,
the Librarian of Congress approving the DMCA. Current laws and rulings
might make libraries increasingly liable for patrons' digital transgressions,
and create disincentives for librarians' creative and effective
use of the internet and non-net digital materials. Asked if the
outlook is bleak for librarians in this age of enclosure, Lessig
Absolutely, and they don't understand their true potential
in this. There is strong support growing to undercut libraries,
unless they get involved in defending the commons.
- Lessig in email interview
More generally, content control continues to harass freedom
of speech. Some businesses have argued copyright infringement in
order to restrict
criticism, going so far as to contest DNS entries that use their
names, as in the cases of Jerry Fallwell and Ford. Hyperlinking,
the freedom of which is essential to Berners-Lee's conception of
the Web, has been complicated by the "deep linking" controversy.
According to litigants operating under this concept, IP owners should
be able to discourage users from casually linking to documents "deep
within" their Web sites, without passing through portals or
other mechanisms designed to shape the browser's experience.
To what extent has opposition to the commons threat appeared?
Lessig himself has taken to the road as an avatar of the resistance.
He gives well-publicized
talks, makes his case on national
radio, published in technology
journals and takes Webbed questions on geek
sites. At another level, he has organized an alternative copyright
organization, the Creative
Commons. The CC offers a toolkit of alternative copyright possibilities,
beyond the simple assertion of ownership: attribution, noncommercial,
no derivative works, and copyleft. Others have taken up the cause,
such as Duke University, in their decision to fund a research
on the critical study of copyright. The Chilling Effects archives
cases of copyright stifling free speech.
Most dramatically, the anti-enclosure campaign has fought its
way to the United States Supreme Court. Tim Eldred has sued to protect
an older, shorter term for copyright, in order to gain access to
documents he wishes to turn into public domain HTML books. Lessig
has joined the suit as counsel, arguing that the Sonny Bono extension
violates the Constitutional language for copyright's utility. Although
he has lost every hearing along the way, Lessig has nevertheless
won his way to argue this critical point before America's final
court of appeal. The trial, scheduled to open during the second
week of October, may be defused if the Supremes set the case aside
without comment. Otherwise, it should prove to be a showcase of
contending views on copyright: commons versus control, with powerful
implications for the ways we create and use ideas.
Alexander is an associate director of the Center
for Educational Technology, and assistant
professor of English at Centenary College. His specialties
along these lines include digital writing, copyright, information
literacy, and, especially, interdisciplinary collaboration.
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