This is the book most often recommended to me in the past year. It is very important because Lessig articulates the central reason the web has succeeded – its root as a commons – and proceeds to dissect the problems threatening this commons, and suggests remedies and laws that would protect and nourish it. It is brilliant work, long overdue.
As I will argue, in the digital world, all the stuff protected by copyright law is in one sense the same: It all depends fundamentally upon a rich and diverse public domain. Free content, in other words, is crucial to building and supporting new content. The free content among the “wired” is just a particular example of a more general point.
This is a hard fact for lawyers to understand (protected as they are by exclusionary rules such as the bar exam), but most of production in our society occurs without any guarantee of government protection. Starbucks didn’t get a government monopoly before it risked a great deal of capital to open coffee shops around the world. All it was assured was that people would have to pay for the coffee they sold; the idea of a high-quality coffee shop was free for others to take. Similarly, chip fabricators around the world invest billions in chip production plants, with no assurance from the government that another competitor won’t open a competing plant right next door.
Commons may be rare. They may evoke tragedies. They may be hard to sustain. And at times, they certainly may interfere with the efficient use of important resources.
But commons also produce something of value. They are a resource for decentralized innovation. They create the opportunity for individuals to draw upon resources without connections, permission, or access granted by others. They are environments that commit themselves to being open. Individuals and corporations draw upon the value created by this openness. They transform that value into other value, which they then consume privately.
Contrast this with computer networks. The most striking feature of the early history of the Internet is the repeated assertion by those at its founding that they simply didn’t know what the network would be used for. Here they were building this large-scale computer network, with a large number of resources devoted to it, but none of them had a clear idea of the uses to which this network would be put. Many in the 1980s believed the Internet would be a fair substitute for telephones (they of course were wrong); none had any idea of the potential for many-to-many publishing that the World Wide Web would produce.
Where we have little understanding about how a resource will be used, we have more reason to keep that resource in the commons.
To the extent you view Napster as nothing more than a device for facilitating the theft of content, there is little usefulness in the new mode of distribution. But the extraordinary feature of Napster was not so much the ability to steal content as it is the range of content that Napster makes available. The important fact is not that a user can get Madonna’s latest songs for free; it is that one can find a recording of new Orleans jazz drummer Jason Marsalis’s band playing “There’s a Thing Called Rhythm.”
But in light of the emerging technologies for sharing, even the spectrum sold as property would be subject to an important qualification: Other users would be free to “share” that spectrum if they followed a “listen first” protocol – the technology would listen to see whether a certain chunk of the spectrum were being used at a particular time, and if it weren’t, it would be free for the taking.
I recognize that idea is jarring – that “my property” would be free for the taking just because I was not using it. But do you recognize why the idea is jarring? The assumption that fuels the dissonance about property “free for the taking” is that the taken property is exhaustible. I may not be using my car at the moment, but that doesn’t mean you should have the right to take it since your use of my care will, to some degree, deplete the property I have. Cars are exhaustible resources. Spectrum is not. When I use a bit of spectrum at a particular moment in time, that spectrum is just as good after I’m finished as it was before. My use in no way exhausts the resource. And more important, when spectrum is not used, its value as a resource is not saved. Unused spectrum, like an empty seat on an airplane, is a resource that is lost forever.
And pollution is precisely the way we should think about old uses of spectrum: large and stupid towers billow overly powerful broadcasts into the ether, making it impossible for smaller, quieter, more efficient uses of spectrum to flourish. Why should these smokestack technologies get protection, when the steel mills did not? Why not force them to improve their technology – to reduce the pollution they spew forth into the ether – so that others could innovate in yet unimagined ways?