THE WEALTH OF NETWORKS - HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM,
YOCHAI BENKLER
******************************************************************************


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ATTRIBUTION
-----------

*For Deb, Noam, and Ari*

"Human nature is not a machine to be built after a model, and set to do exactly
the work prescribed for it, but a tree, which requires to grow and develop
itself on all sides, according to the tendency of the inward forces which make
it a living thing." "Such are the differences among human beings in their
sources of pleasure, their susceptibilities of pain, and the operation on them
of different physical and moral agencies, that unless there is a corresponding
diversity in their modes of life, they neither obtain their fair share of
happiness, nor grow up to the mental, moral, and aesthetic stature of which
their nature is capable."

John Stuart Mill, On Liberty (1859)


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ACKNOWLEDGMENTS
---------------

Reading this manuscript was an act of heroic generosity. I owe my gratitude to
those who did and who therefore helped me to avoid at least some of the errors
that I would have made without their assistance. Bruce Ackerman spent countless
hours listening, and reading and challenging both this book and its precursor
bits and pieces since 2001. I owe much of its present conception and form to
his friendship. Jack Balkin not only read the manuscript, but in an act of
great generosity taught it to his seminar, imposed it on the fellows of Yale's
Information Society Project, and then spent hours with me working through the
limitations and pitfalls they found. Marvin Ammori, Ady Barkan, Elazar Barkan,
Becky Bolin, Eszter Hargittai, Niva Elkin Koren, Amy Kapczynski, Eddan Katz,
Zac Katz, Nimrod Koslovski, Orly Lobel, Katherine McDaniel, and Siva
Vaidhyanathan all read the manuscript and provided valuable thoughts and
insights. Michael O'Malley from Yale University Press deserves special thanks
for helping me decide to write the book that I really wanted to write, not
something else, and then stay the course. [[pg 10]]

This book has been more than a decade in the making. Its roots go back to
1993-1994: long nights of conversations, as only graduate students can have,
with Niva Elkin Koren about democracy in cyberspace; a series of formative
conversations with Mitch Kapor; a couple of madly imaginative sessions with
Charlie Nesson; and a moment of true understanding with Eben Moglen. Equally
central from around that time, but at an angle, were a paper under Terry
Fisher's guidance on nineteenth-century homesteading and the radical
republicans, and a series of classes and papers with Frank Michelman, Duncan
Kennedy, Mort Horwitz, Roberto Unger, and the late David Charny, which led me
to think quite fundamentally about the role of property and economic
organization in the construction of human freedom. It was Frank Michelman who
taught me that the hard trick was to do so as a liberal.

Since then, I have been fortunate in many and diverse intellectual friendships
and encounters, from people in different fields and foci, who shed light on
various aspects of this project. I met Larry Lessig for (almost) the first time
in 1998. By the end of a two-hour conversation, we had formed a friendship and
intellectual conversation that has been central to my work ever since. He has,
over the past few years, played a pivotal role in changing the public
understanding of control, freedom, and creativity in the digital environment.
Over the course of these years, I spent many hours learning from Jamie Boyle,
Terry Fisher, and Eben Moglen. In different ways and styles, each of them has
had significant influence on my work. There was a moment, sometime between the
conference Boyle organized at Yale in 1999 and the one he organized at Duke in
2001, when a range of people who had been doing similar things, pushing against
the wind with varying degrees of interconnection, seemed to cohere into a
single intellectual movement, centered on the importance of the commons to
information production and creativity generally, and to the digitally networked
environment in particular. In various contexts, both before this period and
since, I have learned much from Julie Cohen, Becky Eisenberg, Bernt Hugenholtz,
David Johnson, David Lange, Jessica Litman, Neil Netanel, Helen Nissenbaum,
Peggy Radin, Arti Rai, David Post, Jerry Reichman, Pam Samuelson, Jon Zittrain,
and Diane Zimmerman. One of the great pleasures of this field is the time I
have been able to spend with technologists, economists, sociologists, and
others who don't quite fit into any of these categories. Many have been very
patient with me and taught me much. In particular, I owe thanks to Sam Bowles,
Dave Clark, Dewayne Hendricks, Richard Jefferson, Natalie Jeremijenko, Tara
Lemmey, Josh Lerner, Andy Lippman, David Reed, Chuck Sabel, Jerry Saltzer, Tim
Shepard, Clay Shirky, and Eric von Hippel. In constitutional law and political
theory, I benefited early and consistently from the insights of Ed Baker, with
whom I spent many hours puzzling through practically every problem of political
theory that I tackle in this book; Chris Eisgruber, Dick Fallon, Larry Kramer,
Burt Neuborne, Larry Sager, and Kathleen Sullivan all helped in constructing
various components of the argument.

Much of the early work in this project was done at New York University, whose
law school offered me an intellectually engaging and institutionally safe
environment to explore some quite unorthodox views. A friend, visiting when I
gave a brown-bag workshop there in 1998, pointed out that at very few law
schools could I have presented "The Commons as a Neglected Factor of
Information Policy" as an untenured member of the faculty, to a room full of
law and economics scholars, without jeopardizing my career. Mark Geistfeld, in
particular, helped me work though the economics of sharing--as we shared many a
pleasant afternoon on the beach, watching our boys playing in the waves. I
benefited from the generosity of Al Engelberg, who funded the Engelberg Center
on Innovation Law and Policy and through it students and fellows, from whose
work I learned so much; and Arthur Penn, who funded the Information Law
Institute and through it that amazing intellectual moment, the 2000 conference
on "A Free Information Ecology in the Digital Environment," and the series of
workshops that became the Open Spectrum Project. During that period, I was
fortunate enough to have had wonderful students and fellows with whom I worked
in various ways that later informed this book, in particular Gaia Bernstein,
Mike Burstein, John Kuzin, Greg Pomerantz, Steve Snyder, and Alan Toner.

Since 2001, first as a visitor and now as a member, I have had the remarkable
pleasure of being part of the intellectual community that is Yale Law School.
The book in its present form, structure, and emphasis is a direct reflection of
my immersion in this wonderful community. Practically every single one of my
colleagues has read articles I have written over this period, attended
workshops where I presented my work, provided comments that helped to improve
the articles--and through them, this book, as well. I owe each and every one of
them thanks, not least to Tony Kronman, who made me see that it would be so. To
list them all would be redundant. To list some would inevitably underrepresent
the various contributions they have made. Still, I will try to say a few of the
special thanks, owing much yet to [[pg xii]] those I will not name. Working out
the economics was a precondition of being able to make the core political
claims. Bob Ellickson, Dan Kahan, and Carol Rose all engaged deeply with
questions of reciprocity and commonsbased production, while Jim Whitman kept my
feet to the fire on the relationship to the anthropology of the gift. Ian
Ayres, Ron Daniels during his visit, Al Klevorick, George Priest, Susan
Rose-Ackerman, and Alan Schwartz provided much-needed mixtures of skepticism
and help in constructing the arguments that would allay it. Akhil Amar, Owen
Fiss, Jerry Mashaw, Robert Post, Jed Rubenfeld, Reva Siegal, and Kenji Yoshino
helped me work on the normative and constitutional questions. The turn I took
to focusing on global development as the core aspect of the implications for
justice, as it is in chapter 9, resulted from an invitation from Harold Koh and
Oona Hathaway to speak at their seminar on globalization, and their thoughtful
comments to my paper. The greatest influence on that turn has been Amy
Kapczynski's work as a fellow at Yale, and with her, the students who invited
me to work with them on university licensing policy, in particular, Sam
Chaifetz.

Oddly enough, I have *never had the proper context* in which to give two more
basic thanks. My father, who was swept up in the resistance to British
colonialism and later in Israel's War of Independence, dropped out of high
school. He was left with a passionate intellectual hunger and a voracious
appetite for reading. He died too young to even imagine sitting, as I do today
with my own sons, with the greatest library in human history right there, at
the dinner table, with us. But he would have loved it. Another great debt is to
David Grais, who spent many hours mentoring me in my first law job, bought me
my first copy of Strunk and White, and, for all practical purposes, taught me
how to write in English; as he reads these words, he will be mortified, I fear,
to be associated with a work of authorship as undisciplined as this, with so
many excessively long sentences, replete with dependent clauses and
unnecessarily complex formulations of quite simple ideas.

Finally, to my best friend and tag-team partner in this tussle we call life,
Deborah Schrag, with whom I have shared nicely more or less everything since we
were barely adults. [[pg 1]]


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CHAPTER 1 - INTRODUCTION: A MOMENT OF OPPORTUNITY AND CHALLENGE
---------------------------------------------------------------

Information, knowledge, and culture are central to human freedom and human
development. How they are produced and exchanged in our society critically
affects the way we see the state of the world as it is and might be; who
decides these questions; and how we, as societies and polities, come to
understand what can and ought to be done. For more than 150 years, modern
complex democracies have depended in large measure on an industrial information
economy for these basic functions. In the past decade and a half, we have begun
to see a radical change in the organization of information production. Enabled
by technological change, we are beginning to see a series of economic, social,
and cultural adaptations that make possible a radical transformation of how we
make the information environment we occupy as autonomous individuals, citizens,
and members of cultural and social groups. It seems passe today to speak of
"the Internet revolution." In some academic circles, it is positively naïve.
But it should not be. The change brought about by the networked information
environment is deep. It is structural. It goes to the very foundations of how
liberal markets and liberal democracies have coevolved for almost two
centuries. [[pg 2]]

A series of changes in the technologies, economic organization, and social
practices of production in this environment has created new opportunities for
how we make and exchange information, knowledge, and culture. These changes
have increased the role of nonmarket and nonproprietary production, both by
individuals alone and by cooperative efforts in a wide range of loosely or
tightly woven collaborations. These newly emerging practices have seen
remarkable success in areas as diverse as software development and
investigative reporting, avant-garde video and multiplayer online games.
Together, they hint at the emergence of a new information environment, one in
which individuals are free to take a more active role than was possible in the
industrial information economy of the twentieth century. This new freedom holds
great practical promise: as a dimension of individual freedom; as a platform
for better democratic participation; as a medium to foster a more critical and
self-reflective culture; and, in an increasingly information dependent global
economy, as a mechanism to achieve improvements in human development
everywhere.

The rise of greater scope for individual and cooperative nonmarket production
of information and culture, however, threatens the incumbents of the industrial
information economy. At the beginning of the twenty-first century, we find
ourselves in the midst of a battle over the institutional ecology of the
digital environment. A wide range of laws and institutions-- from broad areas
like telecommunications, copyright, or international trade regulation, to
minutiae like the rules for registering domain names or whether digital
television receivers will be required by law to recognize a particular
code--are being tugged and warped in efforts to tilt the playing field toward
one way of doing things or the other. How these battles turn out over the next
decade or so will likely have a significant effect on how we come to know what
is going on in the world we occupy, and to what extent and in what forms we
will be able--as autonomous individuals, as citizens, and as participants in
cultures and communities--to affect how we and others see the world as it is
and as it might be.

THE EMERGENCE OF THE NETWORKED INFORMATION ECONOMY
..................................................

The most advanced economies in the world today have made two parallel shifts
that, paradoxically, make possible a significant attenuation of the limitations
that market-based production places on the pursuit of the political [[pg 3]]
values central to liberal societies. The first move, in the making for more
than a century, is to an economy centered on information (financial services,
accounting, software, science) and cultural (films, music) production, and the
manipulation of symbols (from making sneakers to branding them and
manufacturing the cultural significance of the Swoosh). The second is the move
to a communications environment built on cheap processors with high computation
capabilities, interconnected in a pervasive network--the phenomenon we
associate with the Internet. It is this second shift that allows for an
increasing role for nonmarket production in the information and cultural
production sector, organized in a radically more decentralized pattern than was
true of this sector in the twentieth century. The first shift means that these
new patterns of production--nonmarket and radically decentralized--will emerge,
if permitted, at the core, rather than the periphery of the most advanced
economies. It promises to enable social production and exchange to play a much
larger role, alongside property- and marketbased production, than they ever
have in modern democracies.

The first part of this book is dedicated to establishing a number of basic
economic observations. Its overarching claim is that we are seeing the
emergence of a new stage in the information economy, which I call the
"networked information economy." It is displacing the industrial information
economy that typified information production from about the second half of the
nineteenth century and throughout the twentieth century. What characterizes the
networked information economy is that decentralized individual
action--specifically, new and important cooperative and coordinate action
carried out through radically distributed, nonmarket mechanisms that do not
depend on proprietary strategies--plays a much greater role than it did, or
could have, in the industrial information economy. The catalyst for this change
is the happenstance of the fabrication technology of computation, and its
ripple effects throughout the technologies of communication and storage. The
declining price of computation, communication, and storage have, as a practical
matter, placed the material means of information and cultural production in the
hands of a significant fraction of the world's population--on the order of a
billion people around the globe. The core distinguishing feature of
communications, information, and cultural production since the mid-nineteenth
century was that effective communication spanning the ever-larger societies and
geographies that came to make up the relevant political and economic units of
the day required ever-larger investments of physical capital. Large-circulation
mechanical presses, the telegraph [[pg 4]] system, powerful radio and later
television transmitters, cable and satellite, and the mainframe computer became
necessary to make information and communicate it on scales that went beyond the
very local. Wanting to communicate with others was not a sufficient condition
to being able to do so. As a result, information and cultural production took
on, over the course of this period, a more industrial model than the economics
of information itself would have required. The rise of the networked,
computer-mediated communications environment has changed this basic fact. The
material requirements for effective information production and communication
are now owned by numbers of individuals several orders of magnitude larger than
the number of owners of the basic means of information production and exchange
a mere two decades ago.

The removal of the physical constraints on effective information production has
made human creativity and the economics of information itself the core
structuring facts in the new networked information economy. These have quite
different characteristics than coal, steel, and manual human labor, which
characterized the industrial economy and structured our basic thinking about
economic production for the past century. They lead to three observations about
the emerging information production system. First, nonproprietary strategies
have always been more important in information production than they were in the
production of steel or automobiles, even when the economics of communication
weighed in favor of industrial models. Education, arts and sciences, political
debate, and theological disputation have always been much more importantly
infused with nonmarket motivations and actors than, say, the automobile
industry. As the material barrier that ultimately nonetheless drove much of our
information environment to be funneled through the proprietary, market-based
strategies is removed, these basic nonmarket, nonproprietary, motivations and
organizational forms should in principle become even more important to the
information production system.

Second, we have in fact seen the rise of nonmarket production to much greater
importance. Individuals can reach and inform or edify millions around the
world. Such a reach was simply unavailable to diversely motivated individuals
before, unless they funneled their efforts through either market organizations
or philanthropically or state-funded efforts. The fact that every such effort
is available to anyone connected to the network, from anywhere, has led to the
emergence of coordinate effects, where the aggregate effect of individual
action, even when it is not self-consciously cooperative, produces [[pg 5]] the
coordinate effect of a new and rich information environment. One needs only to
run a Google search on any subject of interest to see how the "information
good" that is the response to one's query is produced by the coordinate effects
of the uncoordinated actions of a wide and diverse range of individuals and
organizations acting on a wide range of motivations-- both market and
nonmarket, state-based and nonstate.

Third, and likely most radical, new, and difficult for observers to believe, is
the rise of effective, large-scale cooperative efforts--peer production of
information, knowledge, and culture. These are typified by the emergence of
free and open-source software. We are beginning to see the expansion of this
model not only to our core software platforms, but beyond them into every
domain of information and cultural production--and this book visits these in
many different domains--from peer production of encyclopedias, to news and
commentary, to immersive entertainment.

It is easy to miss these changes. They run against the grain of some of our
most basic Economics 101 intuitions, intuitions honed in the industrial economy
at a time when the only serious alternative seen was state Communism--an
alternative almost universally considered unattractive today. The undeniable
economic success of free software has prompted some leading-edge economists to
try to understand why many thousands of loosely networked free software
developers can compete with Microsoft at its own game and produce a massive
operating system--GNU/Linux. That growing literature, consistent with its own
goals, has focused on software and the particulars of the free and open-source
software development communities, although Eric von Hippel's notion of
"user-driven innovation" has begun to expand that focus to thinking about how
individual need and creativity drive innovation at the individual level, and
its diffusion through networks of likeminded individuals. The political
implications of free software have been central to the free software movement
and its founder, Richard Stallman, and were developed provocatively and with
great insight by Eben Moglen. Free software is but one salient example of a
much broader phenomenon. Why can fifty thousand volunteers successfully
coauthor /Wikipedia/, the most serious online alternative to the Encyclopedia
Britannica, and then turn around and give it away for free? Why do 4.5 million
volunteers contribute their leftover computer cycles to create the most
powerful supercomputer on Earth, SETI@Home? Without a broadly accepted analytic
model to explain these phenomena, we tend to treat them as curiosities, perhaps
transient fads, possibly of significance in one market segment or another. We
[[pg 6]] should try instead to see them for what they are: a new mode of
production emerging in the middle of the most advanced economies in the world--
those that are the most fully computer networked and for which information
goods and services have come to occupy the highest-valued roles.

Human beings are, and always have been, diversely motivated beings. We act
instrumentally, but also noninstrumentally. We act for material gain, but also
for psychological well-being and gratification, and for social connectedness.
There is nothing new or earth-shattering about this, except perhaps to some
economists. In the industrial economy in general, and the industrial
information economy as well, most opportunities to make things that were
valuable and important to many people were constrained by the physical capital
requirements of making them. From the steam engine to the assembly line, from
the double-rotary printing press to the communications satellite, the capital
constraints on action were such that simply wanting to do something was rarely
a sufficient condition to enable one to do it. Financing the necessary physical
capital, in turn, oriented the necessarily capital-intensive projects toward a
production and organizational strategy that could justify the investments. In
market economies, that meant orienting toward market production. In state-run
economies, that meant orienting production toward the goals of the state
bureaucracy. In either case, the practical individual freedom to cooperate with
others in making things of value was limited by the extent of the capital
requirements of production.

In the networked information economy, the physical capital required for
production is broadly distributed throughout society. Personal computers and
network connections are ubiquitous. This does not mean that they cannot be used
for markets, or that individuals cease to seek market opportunities. It does
mean, however, that whenever someone, somewhere, among the billion connected
human beings, and ultimately among all those who will be connected, wants to
make something that requires human creativity, a computer, and a network
connection, he or she can do so--alone, or in cooperation with others. He or
she already has the capital capacity necessary to do so; if not alone, then at
least in cooperation with other individuals acting for complementary reasons.
The result is that a good deal more that human beings value can now be done by
individuals, who interact with each other socially, as human beings and as
social beings, rather than as market actors through the price system.
Sometimes, under conditions I specify in some detail, these nonmarket
collaborations can be better at motivating effort and can allow creative people
to work on information projects more [[pg 7]] efficiently than would
traditional market mechanisms and corporations. The result is a flourishing
nonmarket sector of information, knowledge, and cultural production, based in
the networked environment, and applied to anything that the many individuals
connected to it can imagine. Its outputs, in turn, are not treated as exclusive
property. They are instead subject to an increasingly robust ethic of open
sharing, open for all others to build on, extend, and make their own.

Because the presence and importance of nonmarket production has become so
counterintuitive to people living in market-based economies at the end of the
twentieth century, part I of this volume is fairly detailed and technical;
overcoming what we intuitively "know" requires disciplined analysis. Readers
who are not inclined toward economic analysis should at least read the
introduction to part I, the segments entitled "When Information Production
Meets the Computer Network" and "Diversity of Strategies in our Current
Production System" in chapter 2, and the case studies in chapter 3. These
should provide enough of an intuitive feel for what I mean by the diversity of
production strategies for information and the emergence of nonmarket individual
and cooperative production, to serve as the basis for the more normatively
oriented parts of the book. Readers who are genuinely skeptical of the
possibility that nonmarket production is sustainable and effective, and in many
cases is an efficient strategy for information, knowledge, and cultural
production, should take the time to read part I in its entirety. The emergence
of precisely this possibility and practice lies at the very heart of my claims
about the ways in which liberal commitments are translated into lived
experiences in the networked environment, and forms the factual foundation of
the political-theoretical and the institutional-legal discussion that occupies
the remainder of the book.

NETWORKED INFORMATION ECONOMY AND LIBERAL, DEMOCRATIC SOCIETIES
...............................................................

How we make information, how we get it, how we speak to others, and how others
speak to us are core components of the shape of freedom in any society. Part II
of this book provides a detailed look at how the changes in the technological,
economic, and social affordances of the networked information environment
affect a series of core commitments of a wide range of liberal democracies. The
basic claim is that the diversity of ways of organizing information production
and use opens a range of possibilities for pursuing % [[pg 8]] the core
political values of liberal societies--individual freedom, a more genuinely
participatory political system, a critical culture, and social justice. These
values provide the vectors of political morality along which the shape and
dimensions of any liberal society can be plotted. Because their practical
policy implications are often contradictory, rather than complementary, the
pursuit of each places certain limits on how we pursue the others, leading
different liberal societies to respect them in different patterns. How much a
society constrains the democratic decision-making powers of the majority in
favor of individual freedom, or to what extent it pursues social justice, have
always been attributes that define the political contours and nature of that
society. But the economics of industrial production, and our pursuit of
productivity and growth, have imposed a limit on how we can pursue any mix of
arrangements to implement our commitments to freedom and justice. Singapore is
commonly trotted out as an extreme example of the trade-off of freedom for
welfare, but all democracies with advanced capitalist economies have made some
such trade-off. Predictions of how well we will be able to feed ourselves are
always an important consideration in thinking about whether, for example, to
democratize wheat production or make it more egalitarian. Efforts to push
workplace democracy have also often foundered on the shoals--real or
imagined--of these limits, as have many plans for redistribution in the name of
social justice. Market-based, proprietary production has often seemed simply
too productive to tinker with. The emergence of the networked information
economy promises to expand the horizons of the feasible in political
imagination. Different liberal polities can pursue different mixtures of
respect for different liberal commitments. However, the overarching constraint
represented by the seeming necessity of the industrial model of information and
cultural production has significantly shifted as an effective constraint on the
pursuit of liberal commitments.

ENHANCED AUTONOMY
.................

The networked information economy improves the practical capacities of
individuals along three dimensions: (1) it improves their capacity to do more
for and by themselves; (2) it enhances their capacity to do more in loose
commonality with others, without being constrained to organize their
relationship through a price system or in traditional hierarchical models of
social and economic organization; and (3) it improves the capacity of
individuals to do more in formal organizations that operate outside the market
sphere. This enhanced autonomy is at the core of all the other improvements I
[[pg 9]] describe. Individuals are using their newly expanded practical freedom
to act and cooperate with others in ways that improve the practiced experience
of democracy, justice and development, a critical culture, and community.

I begin, therefore, with an analysis of the effects of networked information
economy on individual autonomy. First, individuals can do more for themselves
independently of the permission or cooperation of others. They can create their
own expressions, and they can seek out the information they need, with
substantially less dependence on the commercial mass media of the twentieth
century. Second, and no less importantly, individuals can do more in loose
affiliation with others, rather than requiring stable, long-term relations,
like coworker relations or participation in formal organizations, to underwrite
effective cooperation. Very few individuals living in the industrial
information economy could, in any realistic sense, decide to build a new
Library of Alexandria of global reach, or to start an encyclopedia. As
collaboration among far-flung individuals becomes more common, the idea of
doing things that require cooperation with others becomes much more attainable,
and the range of projects individuals can choose as their own therefore
qualitatively increases. The very fluidity and low commitment required of any
given cooperative relationship increases the range and diversity of cooperative
relations people can enter, and therefore of collaborative projects they can
conceive of as open to them.

These ways in which autonomy is enhanced require a fairly substantive and rich
conception of autonomy as a practical lived experience, rather than the formal
conception preferred by many who think of autonomy as a philosophical concept.
But even from a narrower perspective, which spans a broader range of
conceptions of autonomy, at a minimum we can say that individuals are less
susceptible to manipulation by a legally defined class of others--the owners of
communications infrastructure and media. The networked information economy
provides varied alternative platforms for communication, so that it moderates
the power of the traditional mass-media model, where ownership of the means of
communication enables an owner to select what others view, and thereby to
affect their perceptions of what they can and cannot do. Moreover, the
diversity of perspectives on the way the world is and the way it could be for
any given individual is qualitatively increased. This gives individuals a
significantly greater role in authoring their own lives, by enabling them to
perceive a broader range of possibilities, and by providing them a richer
baseline against which to measure the choices they in fact make.

DEMOCRACY: THE NETWORKED PUBLIC SPHERE
......................................

The second major implication of the networked information economy is the shift
it enables from the mass-mediated public sphere to a networked public sphere.
This shift is also based on the increasing freedom individuals enjoy to
participate in creating information and knowledge, and the possibilities it
presents for a new public sphere to emerge alongside the commercial, mass-media
markets. The idea that the Internet democratizes is hardly new. It has been a
staple of writing about the Internet since the early 1990s. The relatively
simple first-generation claims about the liberating effects of the Internet,
summarized in the U.S. Supreme Court's celebration of its potential to make
everyone a pamphleteer, came under a variety of criticisms and attacks over the
course of the past half decade or so. Here, I offer a detailed analysis of how
the emergence of a networked information economy in particular, as an
alternative to mass media, improves the political public sphere. The
first-generation critique of the democratizing effect of the Internet was based
on various implications of the problem of information overload, or the Babel
objection. According to the Babel objection, when everyone can speak, no one
can be heard, and we devolve either to a cacophony or to the reemergence of
money as the distinguishing factor between statements that are heard and those
that wallow in obscurity. The second-generation critique was that the Internet
is not as decentralized as we thought in the 1990s. The emerging patterns of
Internet use show that very few sites capture an exceedingly large amount of
attention, and millions of sites go unnoticed. In this world, the Babel
objection is perhaps avoided, but only at the expense of the very promise of
the Internet as a democratic medium.

In chapters 6 and 7, I offer a detailed and updated analysis of this, perhaps
the best-known and most contentious claim about the Internet's liberalizing
effects. First, it is important to understand that any consideration of the
democratizing effects of the Internet must measure its effects as compared to
the commercial, mass-media-based public sphere, not as compared to an idealized
utopia that we embraced a decade ago of how the Internet might be. Commercial
mass media that have dominated the public spheres of all modern democracies
have been studied extensively. They have been shown in extensive literature to
exhibit a series of failures as platforms for public discourse. First, they
provide a relatively limited intake basin--that is, too many observations and
concerns of too many people in complex modern [[pg 11]] societies are left
unobserved and unattended to by the small cadre of commercial journalists
charged with perceiving the range of issues of public concern in any given
society. Second, particularly where the market is concentrated, they give their
owners inordinate power to shape opinion and information. This power they can
either use themselves or sell to the highest bidder. And third, whenever the
owners of commercial media choose not to exercise their power in this way, they
then tend to program toward the inane and soothing, rather than toward that
which will be politically engaging, and they tend to oversimplify complex
public discussions. On the background of these limitations of the mass media, I
suggest that the networked public sphere enables many more individuals to
communicate their observations and their viewpoints to many others, and to do
so in a way that cannot be controlled by media owners and is not as easily
corruptible by money as were the mass media.

The empirical and theoretical literature about network topology and use
provides answers to all the major critiques of the claim that the Internet
improves the structure of the public sphere. In particular, I show how a wide
range of mechanisms--starting from the simple mailing list, through static Web
pages, the emergence of writable Web capabilities, and mobility--are being
embedded in a social system for the collection of politically salient
information, observations, and comments, and provide a platform for discourse.
These platforms solve some of the basic limitations of the commercial,
concentrated mass media as the core platform of the public sphere in
contemporary complex democracies. They enable anyone, anywhere, to go through
his or her practical life, observing the social environment through new
eyes--the eyes of someone who could actually inject a thought, a criticism, or
a concern into the public debate. Individuals become less passive, and thus
more engaged observers of social spaces that could potentially become subjects
for political conversation; they become more engaged participants in the
debates about their observations. The various formats of the networked public
sphere provide anyone with an outlet to speak, to inquire, to investigate,
without need to access the resources of a major media organization. We are
seeing the emergence of new, decentralized approaches to fulfilling the
watchdog function and to engaging in political debate and organization. These
are being undertaken in a distinctly nonmarket form, in ways that would have
been much more difficult to pursue effectively, as a standard part of the
construction of the public sphere, before the networked information
environment. Working through detailed examples, I try [[pg 12]] to render the
optimism about the democratic advantages of the networked public sphere a fully
specified argument.

The networked public sphere has also begun to respond to the information
overload problem, but without re-creating the power of mass media at the points
of filtering and accreditation. There are two core elements to these
developments: First, we are beginning to see the emergence of nonmarket,
peer-produced alternative sources of filtration and accreditation in place of
the market-based alternatives. Relevance and accreditation are themselves
information goods, just like software or an encyclopedia. What we are seeing on
the network is that filtering for both relevance and accreditation has become
the object of widespread practices of mutual pointing, of peer review, of
pointing to original sources of claims, and its complement, the social practice
that those who have some ability to evaluate the claims in fact do comment on
them. The second element is a contingent but empirically confirmed observation
of how users actually use the network. As a descriptive matter, information
flow in the network is much more ordered than a simple random walk in the
cacophony of information flow would suggest, and significantly less centralized
than the mass media environment was. Some sites are much more visible and
widely read than others. This is true both when one looks at the Web as a
whole, and when one looks at smaller clusters of similar sites or users who
tend to cluster. Most commentators who have looked at this pattern have
interpreted it as a reemergence of mass media--the dominance of the few visible
sites. But a full consideration of the various elements of the network topology
literature supports a very different interpretation, in which order emerges in
the networked environment without re-creating the failures of the
mass-media-dominated public sphere. Sites cluster around communities of
interest: Australian fire brigades tend to link to other Australian fire
brigades, conservative political blogs (Web logs or online journals) in the
United States to other conservative political blogs in the United States, and
to a lesser but still significant extent, to liberal political blogs. In each
of these clusters, the pattern of some high visibility nodes continues, but as
the clusters become small enough, many more of the sites are moderately linked
to each other in the cluster. Through this pattern, the network seems to be
forming into an attention backbone. "Local" clusters--communities of
interest--can provide initial vetting and "peer-review-like" qualities to
individual contributions made within an interest cluster. Observations that are
seen as significant within a community [[pg 13]] of interest make their way to
the relatively visible sites in that cluster, from where they become visible to
people in larger ("regional") clusters. This continues until an observation
makes its way to the "superstar" sites that hundreds of thousands of people
might read and use. This path is complemented by the practice of relatively
easy commenting and posting directly to many of the superstar sites, which
creates shortcuts to wide attention. It is fairly simple to grasp intuitively
why these patterns might emerge. Users tend to treat other people's choices
about what to link to and to read as good indicators of what is worthwhile for
them. They are not slavish in this, though; they apply some judgment of their
own as to whether certain types of users--say, political junkies of a
particular stripe, or fans of a specific television program--are the best
predictors of what will be interesting for them. The result is that attention
in the networked environment is more dependent on being interesting to an
engaged group of people than it is in the mass-media environment, where
moderate interest to large numbers of weakly engaged viewers is preferable.
Because of the redundancy of clusters and links, and because many clusters are
based on mutual interest, not on capital investment, it is more difficult to
buy attention on the Internet than it is in mass media outlets, and harder
still to use money to squelch an opposing view. These characteristics save the
networked environment from the Babel objection without reintroducing excessive
power in any single party or small cluster of them, and without causing a
resurgence in the role of money as a precondition to the ability to speak
publicly.

JUSTICE AND HUMAN DEVELOPMENT
.............................

Information, knowledge, and information-rich goods and tools play a significant
role in economic opportunity and human development. While the networked
information economy cannot solve global hunger and disease, its emergence does
open reasonably well-defined new avenues for addressing and constructing some
of the basic requirements of justice and human development. Because the outputs
of the networked information economy are usually nonproprietary, it provides
free access to a set of the basic instrumentalities of economic opportunity and
the basic outputs of the information economy. From a liberal perspective
concerned with justice, at a minimum, these outputs become more readily
available as "finished goods" to those who are least well off. More
importantly, the availability of free information resources makes participating
in the economy less dependent on [[pg 14]] surmounting access barriers to
financing and social-transactional networks that made working out of poverty
difficult in industrial economies. These resources and tools thus improve
equality of opportunity.

From a more substantive and global perspective focused on human development,
the freedom to use basic resources and capabilities allows improved
participation in the production of information and information-dependent
components of human development. First, and currently most advanced, the
emergence of a broad range of free software utilities makes it easier for poor
and middle-income countries to obtain core software capabilities. More
importantly, free software enables the emergence of local capabilities to
provide software services, both for national uses and as a basis for
participating in a global software services industry, without need to rely on
permission from multinational software companies. Scientific publication is
beginning to use commons-based strategies to publish important sources of
information in a way that makes the outputs freely available in poorer
countries. More ambitiously, we begin to see in agricultural research a
combined effort of public, nonprofit, and open-source-like efforts being
developed and applied to problems of agricultural innovation. The ultimate
purpose is to develop a set of basic capabilities that would allow
collaboration among farmers and scientists, in both poor countries and around
the globe, to develop better, more nutritious crops to improve food security
throughout the poorer regions of the world. Equally ambitious, but less
operationally advanced, we are beginning to see early efforts to translate this
system of innovation to health-related products.

All these efforts are aimed at solving one of the most glaring problems of
poverty and poor human development in the global information economy: Even as
opulence increases in the wealthier economies--as information and innovation
offer longer and healthier lives that are enriched by better access to
information, knowledge, and culture--in many places, life expectancy is
decreasing, morbidity is increasing, and illiteracy remains rampant. Some,
although by no means all, of this global injustice is due to the fact that we
have come to rely ever-more exclusively on proprietary business models of the
industrial economy to provide some of the most basic information components of
human development. As the networked information economy develops new ways of
producing information, whose outputs are not treated as proprietary and
exclusive but can be made available freely to everyone, it offers modest but
meaningful opportunities for improving human development everywhere. We are
seeing early signs of the emergence of an innovation [[pg 15]] ecosystem made
of public funding, traditional nonprofits, and the newly emerging sector of
peer production that is making it possible to advance human development through
cooperative efforts in both rich countries and poor.

A CRITICAL CULTURE AND NETWORKED SOCIAL RELATIONS
.................................................

The networked information economy also allows for the emergence of a more
critical and self-reflective culture. In the past decade, a number of legal
scholars--Niva Elkin Koren, Terry Fisher, Larry Lessig, and Jack Balkin-- have
begun to examine how the Internet democratizes culture. Following this work and
rooted in the deliberative strand of democratic theory, I suggest that the
networked information environment offers us a more attractive cultural
production system in two distinct ways: (1) it makes culture more transparent,
and (2) it makes culture more malleable. Together, these mean that we are
seeing the emergence of a new folk culture--a practice that has been largely
suppressed in the industrial era of cultural production--where many more of us
participate actively in making cultural moves and finding meaning in the world
around us. These practices make their practitioners better "readers" of their
own culture and more self-reflective and critical of the culture they occupy,
thereby enabling them to become more self-reflective participants in
conversations within that culture. This also allows individuals much greater
freedom to participate in tugging and pulling at the cultural creations of
others, "glomming on" to them, as Balkin puts it, and making the culture they
occupy more their own than was possible with mass-media culture. In these
senses, we can say that culture is becoming more democratic: self-reflective
and participatory.

Throughout much of this book, I underscore the increased capabilities of
individuals as the core driving social force behind the networked information
economy. This heightened individual capacity has raised concerns by many that
the Internet further fragments community, continuing the long trend of
industrialization. A substantial body of empirical literature suggests,
however, that we are in fact using the Internet largely at the expense of
television, and that this exchange is a good one from the perspective of social
ties. We use the Internet to keep in touch with family and intimate friends,
both geographically proximate and distant. To the extent we do see a shift in
social ties, it is because, in addition to strengthening our strong bonds, we
are also increasing the range and diversity of weaker connections. Following
[[pg 16]] Manuel Castells and Barry Wellman, I suggest that we have become more
adept at filling some of the same emotional and context-generating functions
that have traditionally been associated with the importance of community with a
network of overlapping social ties that are limited in duration or intensity.

FOUR METHODOLOGICAL COMMENTS
............................

There are four methodological choices represented by the thesis that I have
outlined up to this point, and therefore in this book as a whole, which require
explication and defense. The first is that I assign a very significant role to
technology. The second is that I offer an explanation centered on social
relations, but operating in the domain of economics, rather than sociology. The
third and fourth are more internal to liberal political theory. The third is
that I am offering a liberal political theory, but taking a path that has
usually been resisted in that literature--considering economic structure and
the limits of the market and its supporting institutions from the perspective
of freedom, rather than accepting the market as it is, and defending or
criticizing adjustments through the lens of distributive justice. Fourth, my
approach heavily emphasizes individual action in nonmarket relations. Much of
the discussion revolves around the choice between markets and nonmarket social
behavior. In much of it, the state plays no role, or is perceived as playing a
primarily negative role, in a way that is alien to the progressive branches of
liberal political thought. In this, it seems more of a libertarian or an
anarchistic thesis than a liberal one. I do not completely discount the state,
as I will explain. But I do suggest that what is special about our moment is
the rising efficacy of individuals and loose, nonmarket affiliations as agents
of political economy. Just like the market, the state will have to adjust to
this new emerging modality of human action. Liberal political theory must first
recognize and understand it before it can begin to renegotiate its agenda for
the liberal state, progressive or otherwise.

THE ROLE OF TECHNOLOGY IN HUMAN AFFAIRS
.......................................

The first methodological choice concerns how one should treat the role of
technology in the development of human affairs. The kind of technological
determinism that typified Lewis Mumford, or, specifically in the area of
communications, Marshall McLuhan, is widely perceived in academia today [[pg
17]] as being too deterministic, though perhaps not so in popular culture. The
contemporary effort to offer more nuanced, institution-based, and
politicalchoice-based explanations is perhaps best typified by Paul Starr's
recent and excellent work on the creation of the media. While these
contemporary efforts are indeed powerful, one should not confuse a work like
Elizabeth Eisenstein's carefully argued and detailed The Printing Press as an
Agent of Change, with McLuhan's determinism. Assuming that technologies are
just tools that happen, more or less, to be there, and are employed in any
given society in a pattern that depends only on what that society and culture
makes of them is too constrained. A society that has no wheel and no writing
has certain limits on what it can do. Barry Wellman has imported into sociology
a term borrowed from engineering--affordances.[^1] Langdon Winner called these
the "political properties" of technologies.[^2] An earlier version of this idea
is Harold Innis's concept of "the bias of communications."[^3] In Internet law
and policy debates this approach has become widely adopted through the
influential work of Lawrence Lessig, who characterized it as "code is law."[^4]

The idea is simple to explain, and distinct from a naïve determinism.
Different technologies make different kinds of human action and interaction
easier or harder to perform. All other things being equal, things that are
easier to do are more likely to be done, and things that are harder to do are
less likely to be done. All other things are never equal. That is why
technological determinism in the strict sense--if you have technology "t," you
should expect social structure or relation "s" to emerge--is false. Ocean
navigation had a different adoption and use when introduced in states whose
land empire ambitions were effectively countered by strong neighbors--like
Spain and Portugal--than in nations that were focused on building a vast inland
empire, like China. Print had different effects on literacy in countries where
religion encouraged individual reading--like Prussia, Scotland, England, and
New England--than where religion discouraged individual, unmediated interaction
with texts, like France and Spain. This form of understanding the role of
technology is adopted here. Neither deterministic nor wholly malleable,
technology sets some parameters of individual and social action. It can make
some actions, relationships, organizations, and institutions easier to pursue,
and others harder. In a challenging environment--be the challenges natural or
human--it can make some behaviors obsolete by increasing the efficacy of
directly competitive strategies. However, within the realm of the
feasible--uses not rendered impossible by the adoption or rejection of a
technology--different patterns of adoption and use [[pg 18]] can result in very
different social relations that emerge around a technology. Unless these
patterns are in competition, or unless even in competition they are not
catastrophically less effective at meeting the challenges, different societies
can persist with different patterns of use over long periods. It is the
feasibility of long-term sustainability of different patterns of use that makes
this book relevant to policy, not purely to theory. The same technologies of
networked computers can be adopted in very different patterns. There is no
guarantee that networked information technology will lead to the improvements
in innovation, freedom, and justice that I suggest are possible. That is a
choice we face as a society. The way we develop will, in significant measure,
depend on choices we make in the next decade or so.

THE ROLE OF ECONOMIC ANALYSIS AND METHODOLOGICAL INDIVIDUALISM
..............................................................

It should be emphasized, as the second point, that this book has a descriptive
methodology that is distinctly individualist and economic in orientation, which
is hardly the only way to approach this problem. Manuel Castells's magisterial
treatment of the networked society[^5] locates its central characteristic in
the shift from groups and hierarchies to networks as social and organizational
models--looser, flexible arrangements of human affairs. Castells develops this
theory as he describes a wide range of changes, from transportation networks to
globalization and industrialization. In his work, the Internet fits into this
trend, enabling better coordination and cooperation in these sorts of loosely
affiliated networks. My own emphasis is on the specific relative roles of
market and nonmarket sectors, and how that change anchors the radical
decentralization that he too observes, as a matter of sociological observation.
I place at the core of the shift the technical and economic characteristics of
computer networks and information. These provide the pivot for the shift toward
radical decentralization of production. They underlie the shift from an
information environment dominated by proprietary, market-oriented action, to a
world in which nonproprietary, nonmarket transactional frameworks play a large
role alongside market production. This newly emerging, nonproprietary sector
affects to a substantial degree the entire information environment in which
individuals and societies live their lives. If there is one lesson we can learn
from globalization and the ever-increasing reach of the market, it is that the
logic of the market exerts enormous pressure on existing social structures. If
we are indeed seeing the emergence of a substantial component of nonmarket
production at the very [[pg 19]] core of our economic engine--the production
and exchange of information, and through it of information-based goods, tools,
services, and capabilities-- then this change suggests a genuine limit on the
extent of the market. Such a limit, growing from within the very market that it
limits, in its most advanced loci, would represent a genuine shift in direction
for what appeared to be the ever-increasing global reach of the market economy
and society in the past half century.

ECONOMIC STRUCTURE IN LIBERAL POLITICAL THEORY
..............................................

The third point has to do with the role of economic structure in liberal
political theory. My analysis in this regard is practical and human centric. By
this, I mean to say two things: First, I am concerned with human beings, with
individuals as the bearers of moral claims regarding the structure of the
political and economic systems they inhabit. Within the liberal tradition, the
position I take is humanistic and general, as opposed to political and
particular. It is concerned first and foremost with the claims of human beings
as human beings, rather than with the requirements of democracy or the
entitlements of citizenship or membership in a legitimate or meaningfully
self-governed political community. There are diverse ways of respecting the
basic claims of human freedom, dignity, and well-being. Different liberal
polities do so with different mixes of constitutional and policy practices. The
rise of global information economic structures and relationships affects human
beings everywhere. In some places, it complements democratic traditions. In
others, it destabilizes constraints on liberty. An understanding of how we can
think of this moment in terms of human freedom and development must transcend
the particular traditions, both liberal and illiberal, of any single nation.
The actual practice of freedom that we see emerging from the networked
environment allows people to reach across national or social boundaries, across
space and political division. It allows people to solve problems together in
new associations that are outside the boundaries of formal, legal-political
association. In this fluid social economic environment, the individual's claims
provide a moral anchor for considering the structures of power and opportunity,
of freedom and well-being. Furthermore, while it is often convenient and widely
accepted to treat organizations or communities as legal entities, as "persons,"
they are not moral agents. Their role in an analysis of freedom and justice is
derivative from their role--both enabling and constraining--as structuring
context in which human beings, [[pg 20]] the actual moral agents of political
economy, find themselves. In this regard, my positions here are decidedly
"liberal," as opposed to either communitarian or critical.

Second, I am concerned with actual human beings in actual historical settings,
not with representations of human beings abstracted from their settings. These
commitments mean that freedom and justice for historically situated individuals
are measured from a first-person, practical perspective. No constraints on
individual freedom and no sources of inequality are categorically exempt from
review, nor are any considered privileged under this view. Neither economy nor
cultural heritage is given independent moral weight. A person whose life and
relations are fully regimented by external forces is unfree, no matter whether
the source of regimentation can be understood as market-based, authoritarian,
or traditional community values. This does not entail a radical anarchism or
libertarianism. Organizations, communities, and other external structures are
pervasively necessary for human beings to flourish and to act freely and
effectively. This does mean, however, that I think of these structures only
from the perspective of their effects on human beings. Their value is purely
derivative from their importance to the actual human beings that inhabit them
and are structured--for better or worse--by them. As a practical matter, this
places concern with market structure and economic organization much closer to
the core of questions of freedom than liberal theory usually is willing to do.
Liberals have tended to leave the basic structure of property and markets
either to libertarians--who, like Friedrich Hayek, accepted its present
contours as "natural," and a core constituent element of freedom--or to
Marxists and neo-Marxists. I treat property and markets as just one domain of
human action, with affordances and limitations. Their presence enhances freedom
along some dimensions, but their institutional requirements can become sources
of constraint when they squelch freedom of action in nonmarket contexts.
Calibrating the reach of the market, then, becomes central not only to the
shape of justice or welfare in a society, but also to freedom.

WHITHER THE STATE?
..................

The fourth and last point emerges in various places throughout this book, but
deserves explicit note here. What I find new and interesting about the
networked information economy is the rise of individual practical capabilities,
and the role that these new capabilities play in increasing the relative
salience of nonproprietary, often nonmarket individual and social behavior.
[[pg 21]]

In my discussion of autonomy and democracy, of justice and a critical culture,
I emphasize the rise of individual and cooperative private action and the
relative decrease in the dominance of market-based and proprietary action.
Where in all this is the state? For the most part, as you will see particularly
in chapter 11, the state in both the United States and Europe has played a role
in supporting the market-based industrial incumbents of the twentieth-century
information production system at the expense of the individuals who make up the
emerging networked information economy. Most state interventions have been in
the form of either captured legislation catering to incumbents, or, at best,
well-intentioned but wrongheaded efforts to optimize the institutional ecology
for outdated modes of information and cultural production. In the traditional
mapping of political theory, a position such as the one I present here--that
freedom and justice can and should best be achieved by a combination of market
action and private, voluntary (not to say charitable) nonmarket action, and
that the state is a relatively suspect actor--is libertarian. Perhaps, given
that I subject to similar criticism rules styled by their proponents as
"property"--like "intellectual property" or "spectrum property rights"--it is
anarchist, focused on the role of mutual aid and highly skeptical of the state.
(It is quite fashionable nowadays to be libertarian, as it has been for a few
decades, and more fashionable to be anarchist than it has been in a century.)

The more modest truth is that my position is not rooted in a theoretical
skepticism about the state, but in a practical diagnosis of opportunities,
barriers, and strategies for achieving improvements in human freedom and
development given the actual conditions of technology, economy, and politics. I
have no objection in principle to an effective, liberal state pursuing one of a
range of liberal projects and commitments. Here and there throughout this book
you will encounter instances where I suggest that the state could play
constructive roles, if it stopped listening to incumbents for long enough to
realize this. These include, for example, municipal funding of neutral
broadband networks, state funding of basic research, and possible strategic
regulatory interventions to negate monopoly control over essential resources in
the digital environment. However, the necessity for the state's affirmative
role is muted because of my diagnosis of the particular trajectory of markets,
on the one hand, and individual and social action, on the other hand, in the
digitally networked information environment. The particular economics of
computation and communications; the particular economics of information,
knowledge, and cultural production; and the relative role of [[pg 22]]
information in contemporary, advanced economies have coalesced to make
nonmarket individual and social action the most important domain of action in
the furtherance of the core liberal commitments. Given these particular
characteristics, there is more freedom to be found through opening up
institutional spaces for voluntary individual and cooperative action than there
is in intentional public action through the state. Nevertheless, I offer no
particular reasons to resist many of the roles traditionally played by the
liberal state. I offer no reason to think that, for example, education should
stop being primarily a state-funded, public activity and a core responsibility
of the liberal state, or that public health should not be so. I have every
reason to think that the rise of nonmarket production enhances, rather than
decreases, the justifiability of state funding for basic science and research,
as the spillover effects of publicly funded information production can now be
much greater and more effectively disseminated and used to enhance the general
welfare.

The important new fact about the networked environment, however, is the
efficacy and centrality of individual and collective social action. In most
domains, freedom of action for individuals, alone and in loose cooperation with
others, can achieve much of the liberal desiderata I consider throughout this
book. From a global perspective, enabling individuals to act in this way also
extends the benefits of liberalization across borders, increasing the
capacities of individuals in nonliberal states to grab greater freedom than
those who control their political systems would like. By contrast, as long as
states in the most advanced market-based economies continue to try to optimize
their institutional frameworks to support the incumbents of the industrial
information economy, they tend to threaten rather than support liberal
commitments. Once the networked information economy has stabilized and we come
to understand the relative importance of voluntary private action outside of
markets, the state can begin to adjust its policies to facilitate nonmarket
action and to take advantage of its outputs to improve its own support for core
liberal commitments.

THE STAKES OF IT ALL: THE BATTLE OVER THE INSTITUTIONAL ECOLOGY OF THE DIGITAL
ENVIRONMENT
..............................................................................

No benevolent historical force will inexorably lead this technologicaleconomic
moment to develop toward an open, diverse, liberal equilibrium. [[pg 23]] If
the transformation I describe as possible occurs, it will lead to substantial
redistribution of power and money from the twentieth-century industrial
producers of information, culture, and communications--like Hollywood, the
recording industry, and perhaps the broadcasters and some of the
telecommunications services giants--to a combination of widely diffuse
populations around the globe, and the market actors that will build the tools
that make this population better able to produce its own information
environment rather than buying it ready-made. None of the industrial giants of
yore are taking this reallocation lying down. The technology will not overcome
their resistance through an insurmountable progressive impulse. The
reorganization of production and the advances it can bring in freedom and
justice will emerge, therefore, only as a result of social and political action
aimed at protecting the new social patterns from the incumbents' assaults. It
is precisely to develop an understanding of what is at stake and why it is
worth fighting for that I write this book. I offer no reassurances, however,
that any of this will in fact come to pass.

The battle over the relative salience of the proprietary, industrial models of
information production and exchange and the emerging networked information
economy is being carried out in the domain of the institutional ecology of the
digital environment. In a wide range of contexts, a similar set of
institutional questions is being contested: To what extent will resources
necessary for information production and exchange be governed as a commons,
free for all to use and biased in their availability in favor of none? To what
extent will these resources be entirely proprietary, and available only to
those functioning within the market or within traditional forms of wellfunded
nonmarket action like the state and organized philanthropy? We see this battle
played out at all layers of the information environment: the physical devices
and network channels necessary to communicate; the existing information and
cultural resources out of which new statements must be made; and the logical
resources--the software and standards--necessary to translate what human beings
want to say to each other into signals that machines can process and transmit.
Its central question is whether there will, or will not, be a core common
infrastructure that is governed as a commons and therefore available to anyone
who wishes to participate in the networked information environment outside of
the market-based, proprietary framework.

This is not to say that property is in some sense inherently bad. Property,
together with contract, is the core institutional component of markets, and
[[pg 24]] a core institutional element of liberal societies. It is what enables
sellers to extract prices from buyers, and buyers to know that when they pay,
they will be secure in their ability to use what they bought. It underlies our
capacity to plan actions that require use of resources that, without
exclusivity, would be unavailable for us to use. But property also constrains
action. The rules of property are circumscribed and intended to elicit a
particular datum--willingness and ability to pay for exclusive control over a
resource. They constrain what one person or another can do with regard to a
resource; that is, use it in some ways but not others, reveal or hide
information with regard to it, and so forth. These constraints are necessary so
that people must transact with each other through markets, rather than through
force or social networks, but they do so at the expense of constraining action
outside of the market to the extent that it depends on access to these
resources.

Commons are another core institutional component of freedom of action in free
societies, but they are structured to enable action that is not based on
exclusive control over the resources necessary for action. For example, I can
plan an outdoor party with some degree of certainty by renting a private garden
or beach, through the property system. Alternatively, I can plan to meet my
friends on a public beach or at Sheep's Meadow in Central Park. I can buy an
easement from my neighbor to reach a nearby river, or I can walk around her
property using the public road that makes up our transportation commons. Each
institutional framework--property and commons--allows for a certain freedom of
action and a certain degree of predictability of access to resources. Their
complementary coexistence and relative salience as institutional frameworks for
action determine the relative reach of the market and the domain of nonmarket
action, both individual and social, in the resources they govern and the
activities that depend on access to those resources. Now that material
conditions have enabled the emergence of greater scope for nonmarket action,
the scope and existence of a core common infrastructure that includes the basic
resources necessary to produce and exchange information will shape the degree
to which individuals will be able to act in all the ways that I describe as
central to the emergence of a networked information economy and the freedoms it
makes possible.

At the physical layer, the transition to broadband has been accompanied by a
more concentrated market structure for physical wires and connections, and less
regulation of the degree to which owners can control the flow of [[pg 25]]
information on their networks. The emergence of open wireless networks, based
on "spectrum commons," counteracts this trend to some extent, as does the
current apparent business practice of broadband owners not to use their
ownership to control the flow of information over their networks. Efforts to
overcome the broadband market concentration through the development of
municipal broadband networks are currently highly contested in legislation and
courts. The single most threatening development at the physical layer has been
an effort driven primarily by Hollywood, over the past few years, to require
the manufacturers of computation devices to design their systems so as to
enforce the copyright claims and permissions imposed by the owners of digital
copyrighted works. Should this effort succeed, the core characteristic of
computers--that they are general-purpose devices whose abilities can be
configured and changed over time by their owners as uses and preferences
change--will be abandoned in favor of machines that can be trusted to perform
according to factory specifications, irrespective of what their owners wish.
The primary reason that these laws have not yet passed, and are unlikely to
pass, is that the computer hardware and software, and electronics and
telecommunications industries all understand that such a law would undermine
their innovation and creativity. At the logical layer, we are seeing a
concerted effort, again headed primarily by Hollywood and the recording
industry, to shape the software and standards to make sure that digitally
encoded cultural products can continue to be sold as packaged goods. The
Digital Millennium Copyright Act and the assault on peer-to-peer technologies
are the most obvious in this regard.

More generally information, knowledge, and culture are being subjected to a
second enclosure movement, as James Boyle has recently explored in depth. The
freedom of action for individuals who wish to produce information, knowledge,
and culture is being systematically curtailed in order to secure the economic
returns demanded by the manufacturers of the industrial information economy. A
rich literature in law has developed in response to this increasing enclosure
over the past twenty years. It started with David Lange's evocative exploration
of the public domain and Pamela Samuelson's prescient critique of the
application of copyright to computer programs and digital materials, and
continued through Jessica Litman's work on the public domain and digital
copyright and Boyle's exploration of the basic romantic assumptions underlying
our emerging "intellectual property" construct and the need for an
environmentalist framework for preserving the public domain. It reached its
most eloquent expression in Lawrence Lessig's arguments [[pg 26]] for the
centrality of free exchange of ideas and information to our most creative
endeavors, and his diagnoses of the destructive effects of the present
enclosure movement. This growing skepticism among legal academics has been
matched by a long-standing skepticism among economists (to which I devote much
discussion in chapter 2). The lack of either analytic or empirical foundation
for the regulatory drive toward ever-stronger proprietary rights has not,
however, resulted in a transformed politics of the regulation of intellectual
production. Only recently have we begun to see a politics of information policy
and "intellectual property" emerge from a combination of popular politics among
computer engineers, college students, and activists concerned with the global
poor; a reorientation of traditional media advocates; and a very gradual
realization by high-technology firms that rules pushed by Hollywood can impede
the growth of computer-based businesses. This political countermovement is tied
to quite basic characteristics of the technology of computer communications,
and to the persistent and growing social practices of sharing--some, like p2p
(peer-to-peer) file sharing, in direct opposition to proprietary claims;
others, increasingly, are instances of the emerging practices of making
information on nonproprietary models and of individuals sharing what they
themselves made in social, rather than market patterns. These economic and
social forces are pushing at each other in opposite directions, and each is
trying to mold the legal environment to better accommodate its requirements. We
still stand at a point where information production could be regulated so that,
for most users, it will be forced back into the industrial model, squelching
the emerging model of individual, radically decentralized, and nonmarket
production and its attendant improvements in freedom and justice.

Social and economic organization is not infinitely malleable. Neither is it
always equally open to affirmative design. The actual practices of human
interaction with information, knowledge, and culture and with production and
consumption are the consequence of a feedback effect between social practices,
economic organization, technological affordances, and formal constraints on
behavior through law and similar institutional forms. These components of the
constraints and affordances of human behavior tend to adapt dynamically to each
other, so that the tension between the technological affordances, the social
and economic practices, and the law are often not too great. During periods of
stability, these components of the structure within which human beings live are
mostly aligned and mutually reinforce [[pg 27]] each other, but the stability
is subject to shock at any one of these dimensions. Sometimes shock can come in
the form of economic crisis, as it did in the United States during the Great
Depression. Often it can come from an external physical threat to social
institutions, like a war. Sometimes, though probably rarely, it can come from
law, as, some would argue, it came from the desegregation decision in /Brown v.
Board of Education/. Sometimes it can come from technology; the introduction of
print was such a perturbation, as was, surely, the steam engine. The
introduction of the highcapacity mechanical presses and telegraph ushered in
the era of mass media. The introduction of radio created a similar
perturbation, which for a brief moment destabilized the mass-media model, but
quickly converged to it. In each case, the period of perturbation offered more
opportunities and greater risks than the periods of relative stability. During
periods of perturbation, more of the ways in which society organizes itself are
up for grabs; more can be renegotiated, as the various other components of
human stability adjust to the changes. To borrow Stephen Jay Gould's term from
evolutionary theory, human societies exist in a series of punctuated
equilibria. The periods of disequilibrium are not necessarily long. A mere
twenty-five years passed between the invention of radio and its adaptation to
the mass-media model. A similar period passed between the introduction of
telephony and its adoption of the monopoly utility form that enabled only
one-to-one limited communications. In each of these periods, various paths
could have been taken. Radio showed us even within the past century how, in
some societies, different paths were in fact taken and then sustained over
decades. After a period of instability, however, the various elements of human
behavioral constraint and affordances settled on a new stable alignment. During
periods of stability, we can probably hope for little more than tinkering at
the edges of the human condition.

This book is offered, then, as a challenge to contemporary liberal democracies.
We are in the midst of a technological, economic, and organizational
transformation that allows us to renegotiate the terms of freedom, justice, and
productivity in the information society. How we shall live in this new
environment will in some significant measure depend on policy choices that we
make over the next decade or so. To be able to understand these choices, to be
able to make them well, we must recognize that they are part of what is
fundamentally a social and political choice--a choice about how to be free,
equal, productive human beings under a new set of technological and [[pg 28]]
economic conditions. As economic policy, allowing yesterday's winners to
dictate the terms of tomorrow's economic competition would be disastrous. As
social policy, missing an opportunity to enrich democracy, freedom, and justice
in our society while maintaining or even enhancing our productivity would be
unforgivable. [[pg 29]]


----------------------------------------
PART ONE - THE NETWORKED INFORMATION ECONOMY
============================================


----------------------------------------
INTRODUCTION
------------

For more than 150 years, new communications technologies have tended to
concentrate and commercialize the production and exchange of information, while
extending the geographic and social reach of information distribution networks.
High-volume mechanical presses and the telegraph combined with new business
practices to change newspapers from small-circulation local efforts into mass
media. Newspapers became means of communications intended to reach ever-larger
and more dispersed audiences, and their management required substantial capital
investment. As the size of the audience and its geographic and social
dispersion increased, public discourse developed an increasingly one-way model.
Information and opinion that was widely known and formed the shared basis for
political conversation and broad social relations flowed from ever more
capital-intensive commercial and professional producers to passive,
undifferentiated consumers. It was a model easily adopted and amplified by
radio, television, and later cable and satellite communications. This trend did
not cover all forms of communication and culture. Telephones and personal
interactions, most importantly, [[pg 30]] and small-scale distributions, like
mimeographed handbills, were obvious alternatives. Yet the growth of efficient
transportation and effective large-scale managerial and administrative
structures meant that the sources of effective political and economic power
extended over larger geographic areas and required reaching a larger and more
geographically dispersed population. The economics of long-distance mass
distribution systems necessary to reach this constantly increasing and more
dispersed relevant population were typified by high up-front costs and low
marginal costs of distribution. These cost characteristics drove cultural
production toward delivery to everwider audiences of increasingly high
production-value goods, whose fixed costs could be spread over ever-larger
audiences--like television series, recorded music, and movies. Because of these
economic characteristics, the mass-media model of information and cultural
production and transmission became the dominant form of public communication in
the twentieth century.

The Internet presents the possibility of a radical reversal of this long trend.
It is the first modern communications medium that expands its reach by
decentralizing the capital structure of production and distribution of
information, culture, and knowledge. Much of the physical capital that embeds
most of the intelligence in the network is widely diffused and owned by end
users. Network routers and servers are not qualitatively different from the
computers that end users own, unlike broadcast stations or cable systems, which
are radically different in economic and technical terms from the televisions
that receive their signals. This basic change in the material conditions of
information and cultural production and distribution have substantial effects
on how we come to know the world we occupy and the alternative courses of
action open to us as individuals and as social actors. Through these effects,
the emerging networked environment structures how we perceive and pursue core
values in modern liberal societies.

Technology alone does not, however, determine social structure. The
introduction of print in China and Korea did not induce the kind of profound
religious and political reformation that followed the printed Bible and
disputations in Europe. But technology is not irrelevant, either. Luther's were
not the first disputations nailed to a church door. Print, however, made it
practically feasible for more than 300,000 copies of Luther's publications to
be circulated between 1517 and 1520 in a way that earlier disputations could
not have been.[^6] Vernacular reading of the Bible became a feasible form of
religious self-direction only when printing these Bibles and making them [[pg
31]] available to individual households became economically feasible, and not
when all copyists were either monks or otherwise dependent on the church.
Technology creates feasibility spaces for social practice. Some things become
easier and cheaper, others harder and more expensive to do or to prevent under
different technological conditions. The interaction between these
technological-economic feasibility spaces, and the social responses to these
changes--both in terms of institutional changes, like law and regulation, and
in terms of changing social practices--define the qualities of a period. The
way life is actually lived by people within a given set of interlocking
technological, economic, institutional, and social practices is what makes a
society attractive or unattractive, what renders its practices laudable or
lamentable.

A particular confluence of technical and economic changes is now altering the
way we produce and exchange information, knowledge, and culture in ways that
could redefine basic practices, first in the most advanced economies, and
eventually around the globe. The potential break from the past 150 years is
masked by the somewhat liberal use of the term "information economy" in various
permutations since the 1970s. The term has been used widely to signify the
dramatic increase in the importance of usable information as a means of
controlling production and the flow of inputs, outputs, and services. While
often evoked as parallel to the "postindustrial" stage, in fact, the
information economy was tightly linked throughout the twentieth century with
controlling the processes of the industrial economy. This is clearest in the
case of accounting firms and financial markets, but is true of the industrial
modalities of organizing cultural production as well. Hollywood, the broadcast
networks, and the recording industry were built around a physical production
model. Once the cultural utterances, the songs or movies, were initially
produced and fixed in some means of storage and transmission, the economics of
production and distribution of these physical goods took over. Making the
initial utterances and the physical goods that embodied them required high
capital investment up front. Making many copies was not much more expensive
than making few copies, and very much cheaper on a per-copy basis. These
industries therefore organized themselves to invest large sums in making a
small number of high production-value cultural "artifacts," which were then
either replicated and stamped onto many low-cost copies of each artifact, or
broadcast or distributed through high-cost systems for low marginal cost
ephemeral consumption on screens and with receivers. This required an effort to
manage demand for those [[pg 32]] products that were in fact recorded and
replicated or distributed, so as to make sure that the producers could sell
many units of a small number of cultural utterances at a low per-unit cost,
rather than few units each of many cultural utterances at higher per-unit
costs. Because of its focus around capital-intensive production and
distribution techniques, this first stage might best be thought of as the
"industrial information economy."

Radical decentralization of intelligence in our communications network and the
centrality of information, knowledge, culture, and ideas to advanced economic
activity are leading to a new stage of the information economy-- the networked
information economy. In this new stage, we can harness many more of the diverse
paths and mechanisms for cultural transmission that were muted by the economies
of scale that led to the rise of the concentrated, controlled form of mass
media, whether commercial or state-run. The most important aspect of the
networked information economy is the possibility it opens for reversing the
control focus of the industrial information economy. In particular, it holds
out the possibility of reversing two trends in cultural production central to
the project of control: concentration and commercialization.

Two fundamental facts have changed in the economic ecology in which the
industrial information enterprises have arisen. First, the basic output that
has become dominant in the most advanced economies is human meaning and
communication. Second, the basic physical capital necessary to express and
communicate human meaning is the connected personal computer. The core
functionalities of processing, storage, and communications are widely owned
throughout the population of users. Together, these changes destabilize the
industrial stage of the information economy. Both the capacity to make
meaning--to encode and decode humanly meaningful statements-- and the capacity
to communicate one's meaning around the world, are held by, or readily
available to, at least many hundreds of millions of users around the globe. Any
person who has information can connect with any other person who wants it, and
anyone who wants to make it mean something in some context, can do so. The high
capital costs that were a prerequisite to gathering, working, and communicating
information, knowledge, and culture, have now been widely distributed in the
society. The entry barrier they posed no longer offers a condensation point for
the large organizations that once dominated the information environment.
Instead, emerging models of information and cultural production, radically
decentralized and based on [[pg 33]] emergent patterns of cooperation and
sharing, but also of simple coordinate coexistence, are beginning to take on an
ever-larger role in how we produce meaning--information, knowledge, and
culture--in the networked information economy.

A Google response to a query, which returns dozens or more sites with answers
to an information question you may have, is an example of coordinate
coexistence producing information. As Jessica Litman demonstrated in Sharing
and Stealing, hundreds of independent producers of information, acting for
reasons ranging from hobby and fun to work and sales, produce information,
independently and at widely varying costs, related to what you were looking
for. They all coexist without knowing of each other, most of them without
thinking or planning on serving you in particular, or even a class of user like
you. Yet the sheer volume and diversity of interests and sources allows their
distributed, unrelated efforts to be coordinated-- through the Google algorithm
in this case, but also through many others-- into a picture that has meaning
and provides the answer to your question. Other, more deeply engaged and
cooperative enterprises are also emerging on the Internet. /Wikipedia/, a
multilingual encyclopedia coauthored by fifty thousand volunteers, is one
particularly effective example of many such enterprises.

The technical conditions of communication and information processing are
enabling the emergence of new social and economic practices of information and
knowledge production. Eisenstein carefully documented how print loosened the
power of the church over information and knowledge production in Europe, and
enabled, particularly in the Protestant North, the emergence of early modern
capitalist enterprises in the form of print shops. These printers were able to
use their market revenues to become independent of the church or the princes,
as copyists never were, and to form the economic and social basis of a liberal,
market-based freedom of thought and communication. Over the past century and a
half, these early printers turned into the commercial mass media: A particular
type of market-based production--concentrated, largely homogenous, and highly
commercialized--that came to dominate our information environment by the end of
the twentieth century. On the background of that dominant role, the possibility
that a radically different form of information production will
emerge--decentralized; socially, no less than commercially, driven; and as
diverse as human thought itself--offers the promise of a deep change in how we
see the world [[pg 34]] around us, how we come to know about it and evaluate
it, and how we are capable of communicating with others about what we know,
believe, and plan.

This part of the book is dedicated to explaining the technological-economic
transformation that is making these practices possible. Not because economics
drives all; not because technology determines the way society or communication
go; but because it is the technological shock, combined with the economic
sustainability of the emerging social practices, that creates the new set of
social and political opportunities that are the subject of this book. By
working out the economics of these practices, we can understand the economic
parameters within which practical political imagination and fulfillment can
operate in the digitally networked environment. I describe sustained productive
enterprises that take the form of decentralized and nonmarket-based production,
and explain why productivity and growth are consistent with a shift toward such
modes of production. What I describe is not an exercise in pastoral utopianism.
It is not a vision of a return to production in a preindustrial world. It is a
practical possibility that directly results from our economic understanding of
information and culture as objects of production. It flows from fairly standard
economic analysis applied to a very nonstandard economic reality: one in which
all the means of producing and exchanging information and culture are placed in
the hands of hundreds of millions, and eventually billions, of people around
the world, available for them to work with not only when they are functioning
in the market to keep body and soul together, but also, and with equal
efficacy, when they are functioning in society and alone, trying to give
meaning to their lives as individuals and as social beings. [[pg 35]]


----------------------------------------
CHAPTER 2 - SOME BASIC ECONOMICS OF INFORMATION PRODUCTION AND INNOVATION
-------------------------------------------------------------------------

There are no noncommercial automobile manufacturers. There are no volunteer
steel foundries. You would never choose to have your primary source of bread
depend on voluntary contributions from others. Nevertheless, scientists working
at noncommercial research institutes funded by nonprofit educational
institutions and government grants produce most of our basic science.
Widespread cooperative networks of volunteers write the software and standards
that run most of the Internet and enable what we do with it. Many people turn
to National Public Radio or the BBC as a reliable source of news. What is it
about information that explains this difference? Why do we rely almost
exclusively on markets and commercial firms to produce cars, steel, and wheat,
but much less so for the most critical information our advanced societies
depend on? Is this a historical contingency, or is there something about
information as an object of production that makes nonmarket production
attractive?

The technical economic answer is that certain characteristics of information
and culture lead us to understand them as "public [[pg 36]] goods," rather than
as "pure private goods" or standard "economic goods." When economists speak of
information, they usually say that it is "nonrival." We consider a good to be
nonrival when its consumption by one person does not make it any less available
for consumption by another. Once such a good is produced, no more social
resources need be invested in creating more of it to satisfy the next consumer.
Apples are rival. If I eat this apple, you cannot eat it. If you nonetheless
want to eat an apple, more resources (trees, labor) need to be diverted from,
say, building chairs, to growing apples, to satisfy you. The social cost of
your consuming the second apple is the cost of not using the resources needed
to grow the second apple (the wood from the tree) in their next best use. In
other words, it is the cost to society of not having the additional chairs that
could have been made from the tree. Information is nonrival. Once a scientist
has established a fact, or once Tolstoy has written War and Peace, neither the
scientist nor Tolstoy need spend a single second on producing additional War
and Peace manuscripts or studies for the one-hundredth, one-thousandth, or
one-millionth user of what they wrote. The physical paper for the book or
journal costs something, but the information itself need only be created once.
Economists call such goods "public" because a market will not produce them if
priced at their marginal cost--zero. In order to provide Tolstoy or the
scientist with income, we regulate publishing: We pass laws that enable their
publishers to prevent competitors from entering the market. Because no
competitors are permitted into the market for copies of War and Peace, the
publishers can price the contents of the book or journal at above their actual
marginal cost of zero. They can then turn some of that excess revenue over to
Tolstoy. Even if these laws are therefore necessary to create the incentives
for publication, the market that develops based on them will, from the
technical economic perspective, systematically be inefficient. As Kenneth Arrow
put it in 1962, "precisely to the extent that [property] is effective, there is
underutilization of the information."[^7] Because welfare economics defines a
market as producing a good efficiently only when it is pricing the good at its
marginal cost, a good like information (and culture and knowledge are, for
purposes of economics, forms of information), which can never be sold both at a
positive (greater than zero) price and at its marginal cost, is fundamentally a
candidate for substantial nonmarket production.

This widely held explanation of the economics of information production has led
to an understanding that markets based on patents or copyrights involve a
trade-off between static and dynamic efficiency. That is, looking [[pg 37]] at
the state of the world on any given day, it is inefficient that people and
firms sell the information they possess. From the perspective of a society's
overall welfare, the most efficient thing would be for those who possess
information to give it away for free--or rather, for the cost of communicating
it and no more. On any given day, enforcing copyright law leads to inefficient
underutilization of copyrighted information. However, looking at the problem of
information production over time, the standard defense of exclusive rights like
copyright expects firms and people not to produce if they know that their
products will be available for anyone to take for free. In order to harness the
efforts of individuals and firms that want to make money, we are willing to
trade off some static inefficiency to achieve dynamic efficiency. That is, we
are willing to have some inefficient lack of access to information every day,
in exchange for getting more people involved in information production over
time. Authors and inventors or, more commonly, companies that contract with
musicians and filmmakers, scientists, and engineers, will invest in research
and create cultural goods because they expect to sell their information
products. Over time, this incentive effect will give us more innovation and
creativity, which will outweigh the inefficiency at any given moment caused by
selling the information at above its marginal cost. This defense of exclusive
rights is limited by the extent to which it correctly describes the motivations
of information producers and the business models open to them to appropriate
the benefits of their investments. If some information producers do not need to
capture the economic benefits of their particular information outputs, or if
some businesses can capture the economic value of their information production
by means other than exclusive control over their products, then the
justification for regulating access by granting copyrights or patents is
weakened. As I will discuss in detail, both of these limits on the standard
defense are in fact the case.

Nonrivalry, moreover, is not the only quirky characteristic of information
production as an economic phenomenon. The other crucial quirkiness is that
information is both input and output of its own production process. In order to
write today's academic or news article, I need access to yesterday's articles
and reports. In order to write today's novel, movie, or song, I need to use and
rework existing cultural forms, such as story lines and twists. This
characteristic is known to economists as the "on the shoulders of giants"
effect, recalling a statement attributed to Isaac Newton: "If I have seen
farther it is because I stand on the shoulders of giants."[^8] This second
quirkiness [[pg 38]] of information as a production good makes property-like
exclusive rights less appealing as the dominant institutional arrangement for
information and cultural production than it would have been had the sole quirky
characteristic of information been its nonrivalry. The reason is that if any
new information good or innovation builds on existing information, then
strengthening intellectual property rights increases the prices that those who
invest in producing information today must pay to those who did so yesterday,
in addition to increasing the rewards an information producer can get tomorrow.
Given the nonrivalry, those payments made today for yesterday's information are
all inefficiently too high, from today's perspective. They are all above the
marginal cost--zero. Today's users of information are not only today's readers
and consumers. They are also today's producers and tomorrow's innovators. Their
net benefit from a strengthened patent or copyright regime, given not only
increased potential revenues but also the increased costs, may be negative. If
we pass a law that regulates information production too strictly, allowing its
beneficiaries to impose prices that are too high on today's innovators, then we
will have not only too little consumption of information today, but also too
little production of new information for tomorrow.

Perhaps the most amazing document of the consensus among economists today that,
because of the combination of nonrivalry and the "on the shoulders of giants"
effect, excessive expansion of "intellectual property" protection is
economically detrimental, was the economists' brief filed in the Supreme Court
case of /Eldred v. Ashcroft/.[^9] The case challenged a law that extended the
term of copyright protection from lasting for the life of the author plus fifty
years, to life of the author plus seventy years, or from seventy-five years to
ninety-five years for copyrights owned by corporations. If information were
like land or iron, the ideal length of property rights would be infinite from
the economists' perspective. In this case, however, where the "property right"
was copyright, more than two dozen leading economists volunteered to sign a
brief opposing the law, counting among their number five Nobel laureates,
including that well-known market skeptic, Milton Friedman.

The efficiency of regulating information, knowledge, and cultural production
through strong copyright and patent is not only theoretically ambiguous, it
also lacks empirical basis. The empirical work trying to assess the impact of
intellectual property on innovation has focused to date on patents. The
evidence provides little basis to support stronger and increasing exclusive
[[pg 39]] rights of the type we saw in the last two and a half decades of the
twentieth century. Practically no studies show a clear-cut benefit to stronger
or longer patents.[^10] In perhaps one of the most startling papers on the
economics of innovation published in the past few years, Josh Lerner looked at
changes in intellectual property law in sixty countries over a period of 150
years. He studied close to three hundred policy changes, and found that, both
in developing countries and in economically advanced countries that already
have patent law, patenting both at home and abroad by domestic firms of the
country that made the policy change, a proxy for their investment in research
and development, decreases slightly when patent law is strengthened![^11] The
implication is that when a country--either one that already has a significant
patent system, or a developing nation--increases its patent protection, it
slightly decreases the level of investment in innovation by local firms. Going
on intuitions alone, without understanding the background theory, this seems
implausible--why would inventors or companies innovate less when they get more
protection? Once you understand the interaction of nonrivalry and the "on the
shoulders of giants" effect, the findings are entirely consistent with theory.
Increasing patent protection, both in developing nations that are net importers
of existing technology and science, and in developed nations that already have
a degree of patent protection, and therefore some nontrivial protection for
inventors, increases the costs that current innovators have to pay on existing
knowledge more than it increases their ability to appropriate the value of
their own contributions. When one cuts through the rent-seeking politics of
intellectual property lobbies like the pharmaceutical companies or Hollywood
and the recording industry; when one overcomes the honestly erroneous, but
nonetheless conscience-soothing beliefs of lawyers who defend the copyright and
patent-dependent industries and the judges they later become, the reality of
both theory and empirics in the economics of intellectual property is that both
in theory and as far as empirical evidence shows, there is remarkably little
support in economics for regulating information, knowledge, and cultural
production through the tools of intellectual property law.

Where does innovation and information production come from, then, if it does
not come as much from intellectual-property-based market actors, as many
generally believe? The answer is that it comes mostly from a mixture of (1)
nonmarket sources--both state and nonstate--and (2) market actors whose
business models do not depend on the regulatory framework of intellectual
property. The former type of producer is the expected answer, [[pg 40]] within
mainstream economics, for a public goods problem like information production.
The National Institutes of Health, the National Science Foundation, and the
Defense Department are major sources of funding for research in the United
States, as are government agencies in Europe, at the national and European
level, Japan, and other major industrialized nations. The latter type--that is,
the presence and importance of market-based producers whose business models do
not require and do not depend on intellectual property protection--is not
theoretically predicted by that model, but is entirely obvious once you begin
to think about it.

Consider a daily newspaper. Normally, we think of newspapers as dependent on
copyrights. In fact, however, that would be a mistake. No daily newspaper would
survive if it depended for its business on waiting until a competitor came out
with an edition, then copied the stories, and reproduced them in a competing
edition. Daily newspapers earn their revenue from a combination of low-priced
newsstand sales or subscriptions together with advertising revenues. Neither of
those is copyright dependent once we understand that consumers will not wait
half a day until the competitor's paper comes out to save a nickel or a quarter
on the price of the newspaper. If all copyright on newspapers were abolished,
the revenues of newspapers would be little affected.[^12] Take, for example,
the 2003 annual reports of a few of the leading newspaper companies in the
United States. The New York Times Company receives a little more than $3
billion a year from advertising and circulation revenues, and a little more
than $200 million a year in revenues from all other sources. Even if the entire
amount of "other sources" were from syndication of stories and photos--which
likely overstates the role of these copyright-dependent sources--it would
account for little more than 6 percent of total revenues. The net operating
revenues for the Gannett Company were more than $5.6 billion in newspaper
advertising and circulation revenue, relative to about $380 million in all
other revenues. As with the New York Times, at most a little more than 6
percent of revenues could be attributed to copyright-dependent activities. For
Knight Ridder, the 2003 numbers were $2.8 billion and $100 million,
respectively, or a maximum of about 3.5 percent from copyrights. Given these
numbers, it is safe to say that daily newspapers are not a copyright-dependent
industry, although they are clearly a market-based information production
industry.

As it turns out, repeated survey studies since 1981 have shown that in all
industrial sectors except for very few--most notably pharmaceuticals--firm
managers do not see patents as the most important way they capture the [[pg
41]] benefits of their research and developments.[^13] They rank the advantages
that strong research and development gives them in lowering the cost or
improving the quality of manufacture, being the first in the market, or
developing strong marketing relationships as more important than patents. The
term "intellectual property" has high cultural visibility today. Hollywood, the
recording industry, and pharmaceuticals occupy center stage on the national and
international policy agenda for information policy. However, in the overall mix
of our information, knowledge, and cultural production system, the total weight
of these exclusivity-based market actors is surprisingly small relative to the
combination of nonmarket sectors, government and nonprofit, and market-based
actors whose business models do not depend on proprietary exclusion from their
information outputs.

The upshot of the mainstream economic analysis of information production today
is that the widely held intuition that markets are more or less the best way to
produce goods, that property rights and contracts are efficient ways of
organizing production decisions, and that subsidies distort production
decisions, is only very ambiguously applicable to information. While exclusive
rights-based production can partially solve the problem of how information will
be produced in our society, a comprehensive regulatory system that tries to
mimic property in this area--such as both the United States and the European
Union have tried to implement internally and through international
agreements--simply cannot work perfectly, even in an ideal market posited by
the most abstract economics models. Instead, we find the majority of businesses
in most sectors reporting that they do not rely on intellectual property as a
primary mechanism for appropriating the benefits of their research and
development investments. In addition, we find mainstream economists believing
that there is a substantial role for government funding; that nonprofit
research can be more efficient than for-profit research; and, otherwise, that
nonproprietary production can play an important role in our information
production system.

THE DIVERSITY OF STRATEGIES IN OUR CURRENT INFORMATION PRODUCTION SYSTEM
........................................................................

The actual universe of information production in the economy then, is not as
dependent on property rights and markets in information goods as the last
quarter century's increasing obsession with "intellectual property" might [[pg
42]] suggest. Instead, what we see both from empirical work and theoretical
work is that individuals and firms in the economy produce information using a
wide range of strategies. Some of these strategies indeed rely on exclusive
rights like patents or copyrights, and aim at selling information as a good
into an information market. Many, however, do not. In order to provide some
texture to what these models look like, we can outline a series of ideal-type
"business" strategies for producing information. The point here is not to
provide an exhaustive map of the empirical business literature. It is, instead,
to offer a simple analytic framework within which to understand the mix of
strategies available for firms and individuals to appropriate the benefits of
their investments--of time, money, or both, in activities that result in the
production of information, knowledge, and culture. The differentiating
parameters are simple: cost minimization and benefit maximization. Any of these
strategies could use inputs that are already owned--such as existing lyrics for
a song or a patented invention to improve on--by buying a license from the
owner of the exclusive rights for the existing information. Cost minimization
here refers purely to ideal-type strategies for obtaining as many of the
information inputs as possible at their marginal cost of zero, instead of
buying licenses to inputs at a positive market price. It can be pursued by
using materials from the public domain, by using materials the producer itself
owns, or by sharing/bartering for information inputs owned by others in
exchange for one's own information inputs. Benefits can be obtained either in
reliance on asserting one's exclusive rights, or by following a non-exclusive
strategy, using some other mechanism that improves the position of the
information producer because they invested in producing the information.
Nonexclusive strategies for benefit maximization can be pursued both by market
actors and by nonmarket actors. Table 2.1 maps nine ideal-type strategies
characterized by these components.

The ideal-type strategy that underlies patents and copyrights can be thought of
as the "Romantic Maximizer." It conceives of the information producer as a
single author or inventor laboring creatively--hence romantic--but in
expectation of royalties, rather than immortality, beauty, or truth. An
individual or small start-up firm that sells software it developed to a larger
firm, or an author selling rights to a book or a film typify this model. The
second ideal type that arises within exclusive-rights based industries,
"Mickey," is a larger firm that already owns an inventory of exclusive rights,
some through in-house development, some by buying from Romantic Maximizers.
[[pg 43]]


----------------------------------------
*Table 2.1: Ideal-Type Information Production Strategies*

Cost Minimization/ Benefit Acquisition┆Public Domain┆Intrafirm┆Barter/Sharing
Rights based exclusion (make money by exercising exclusive rights - licensing or blocking competition)┆Romantic Maximizers (authors, composers; sell to publishers; sometimes sell to Mickeys)┆Mikey (Disney reuses inventory for derivative works; buy outputs of Romantic Maximizers)┆RCA (small number of companies hold blocking patents; they create patent pools to build valuable goods)
Nonexclusion - Market (make money from information production but not by exercising the exclusive rights)┆Scholarly Lawyers (write articles to get clients; other examples include bands that give music out for free as advertisements for touring and charge money for performance; software developers who develop software and make money from customizing it to a particular client, on-site management, advice and training, not from licensing)┆Know-How (firms that have cheaper or better production processes because of their research, lower their costs or improve the quality of other goods or services; lawyer offices that build on existing forms)┆Learning Networks (share information with similar organizations - make money from early access to information. For example, newspapers join together to create a wire service; firms where engineers and scientists from different firms attend professional societies to diffuse knowledge)
Nonexclusion - Nonmarket┆Joe Einstein (give away information for free in return for status, benefits to reputation, value for the innovation to themselves; wide range of motivations. Includes members of amateur choirs who perform for free, academics who write articles for fame, people who write opeds, contribute to mailing lists; many free software developers and free software generally for most uses)┆Los Alamos (share in-house information, rely on in-house inputs to produce valuable public goods used to secure additional government funding and status)┆Limited sharing networks (release paper to small number of colleagues to get comments so you can improve it before publication. Make use of time delay to gain relative advantage later on using Joe Einstein strategy. Share one's information on formal condition of reciprocity: like "copyleft" conditions on derivative works for distribution)

- A defining cost-reduction mechanism for Mickey is that it applies creative
people to work on its own inventory, for which it need not pay above marginal
cost prices in the market. This strategy is the most advantageous in an
environment of very strong exclusive rights protection for a number of reasons.
First, the ability to extract higher rents from the existing inventory of
information goods is greatest for firms that (a) have an inventory and (b) rely
on asserting exclusive rights as their mode of extracting value. Second, the
increased costs of production associated with strong exclusive rights are
cushioned by the ability of such firms to rework their existing inventory,
rather than trying to work with materials from an evershrinking public domain
or paying for every source of inspiration and element of a new composition. The
coarsest version of this strategy might be found if Disney were to produce a
"winter sports" thirty-minute television program by tying together scenes from
existing cartoons, say, one in which Goofy plays hockey followed by a snippet
of Donald Duck ice skating, and so on. More subtle, and representative of the
type of reuse relevant to the analysis here, would be the case where Disney
buys the rights to Winniethe-Pooh, and, after producing an animated version of
stories from the original books, then continues to work with the same
characters and relationships to create a new film, say,
Winnie-the-Pooh--Frankenpooh (or Beauty and the Beast--Enchanted Christmas; or
The Little Mermaid--Stormy the Wild Seahorse). The third exclusive-rights-based
strategy, which I call "RCA," is barter among the owners of inventories. Patent
pools, cross-licensing, and market-sharing agreements among the radio patents
holders in 1920-1921, which I describe in chapter 6, are a perfect example.
RCA, GE, AT&T, and Westinghouse held blocking patents that prevented each other
and anyone else from manufacturing the best radios possible given technology at
that time. The four companies entered an agreement to combine their patents and
divide the radio equipment and services markets, which they used throughout the
1920s to exclude competitors and to capture precisely the postinnovation
monopoly rents sought to be created by patents.

Exclusive-rights-based business models, however, represent only a fraction of
our information production system. There are both market-based and nonmarket
models to sustain and organize information production. Together, these account
for a substantial portion of our information output. Indeed, industry surveys
concerned with patents have shown that the vast majority of industrial R&D is
pursued with strategies that do not rely primarily on patents. This does not
mean that most or any of the firms that [[pg 45]] pursue these strategies
possess or seek no exclusive rights in their information products. It simply
means that their production strategy does not depend on asserting these rights
through exclusion. One such cluster of strategies, which I call "Scholarly
Lawyers," relies on demand-side effects of access to the information the
producer distributes. It relies on the fact that sometimes using an information
good that one has produced makes its users seek out a relationship with the
author. The author then charges for the relationship, not for the information.
Doctors or lawyers who publish in trade journals, become known, and get
business as a result are an instance of this strategy. An enormously creative
industry, much of which operates on this model, is software. About two-thirds
of industry revenues in software development come from activities that the
Economic Census describes as: (1) writing, modifying, testing, and supporting
software to meet the needs of a particular customer; (2) planning and designing
computer systems that integrate computer hardware, software, and communication
technologies; (3) on-site management and operation of clients' computer systems
and/or data processing facilities; and (4) other professional and technical
computer-related advice and services, systems consultants, and computer
training. "Software publishing," by contrast, the business model that relies on
sales based on copyright, accounts for a little more than one-third of the
industry's revenues.[^14] Interestingly, this is the model of appropriation
that more than a decade ago, Esther Dyson and John Perry Barlow heralded as the
future of music and musicians. They argued in the early 1990s for more or less
free access to copies of recordings distributed online, which would lead to
greater attendance at live gigs. Revenue from performances, rather than
recording, would pay artists.

The most common models of industrial R&D outside of pharmaceuticals, however,
depend on supply-side effects of information production. One central reason to
pursue research is its effects on firm-specific advantages, like production
know-how, which permit the firm to produce more efficiently than competitors
and sell better or cheaper competing products. Daily newspapers collectively
fund news agencies, and individually fund reporters, because their ability to
find information and report it is a necessary input into their product--timely
news. As I have already suggested, they do not need copyright to protect their
revenues. Those are protected by the short half-life of dailies. The
investments come in order to be able to play in the market for daily
newspapers. Similarly, the learning curve and knowhow effects in semiconductors
are such that early entry into the market for [[pg 46]] a new chip will give
the first mover significant advantages over competitors. Investment is then
made to capture that position, and the investment is captured by the
quasi-rents available from the first-mover advantage. In some cases, innovation
is necessary in order to be able to produce at the state of the art. Firms
participate in "Learning Networks" to gain the benefits of being at the state
of the art, and sharing their respective improvements. However, they can only
participate if they innovate. If they do not innovate, they lack the in-house
capacity to understand the state of the art and play at it. Their investments
are then recouped not from asserting their exclusive rights, but from the fact
that they sell into one of a set of markets, access into which is protected by
the relatively small number of firms with such absorption capacity, or the
ability to function at the edge of the state of the art. Firms of this sort
might barter their information for access, or simply be part of a small group
of organizations with enough knowledge to exploit the information generated and
informally shared by all participants in these learning networks. They obtain
rents from the concentrated market structure, not from assertion of property
rights.[^15]

An excellent example of a business strategy based on nonexclusivity is IBM's.
The firm has obtained the largest number of patents every year from 1993 to
2004, amassing in total more than 29,000 patents. IBM has also, however, been
one of the firms most aggressively engaged in adapting its business model to
the emergence of free software. Figure 2.1 shows what happened to the relative
weight of patent royalties, licenses, and sales in IBM's revenues and revenues
that the firm described as coming from "Linuxrelated services." Within a span
of four years, the Linux-related services category moved from accounting for
practically no revenues, to providing double the revenues from all
patent-related sources, of the firm that has been the most patent-productive in
the United States. IBM has described itself as investing more than a billion
dollars in free software developers, hired programmers to help develop the
Linux kernel and other free software; and donated patents to the Free Software
Foundation. What this does for the firm is provide it with a better operating
system for its server business-- making the servers better, faster, more
reliable, and therefore more valuable to consumers. Participating in free
software development has also allowed IBM to develop service relationships with
its customers, building on free software to offer customer-specific solutions.
In other words, IBM has combined both supply-side and demand-side strategies to
adopt a nonproprietary business model that has generated more than $2 billion
yearly of business [[pg 47]] for the firm. Its strategy is, if not symbiotic,
certainly complementary to free software.

won_benkler_2_1.png 420x342 "Figure 2.1: Selected IBM Revenues, 2000-2003"
[link: <http://www.jus.uio.no/sisu/>]

I began this chapter with a puzzle--advanced economies rely on nonmarket
organizations for information production much more than they do in other
sectors. The puzzle reflects the fact that alongside the diversity of
market-oriented business models for information production there is a wide
diversity of nonmarket models as well. At a broad level of abstraction, I
designate this diversity of motivations and organizational forms as "Joe
Einstein"--to underscore the breadth of the range of social practices and
practitioners of nonmarket production. These include universities and other
research institutes; government research labs that publicize their work, or
government information agencies like the Census Bureau. They also include
individuals, like academics; authors and artists who play to "immortality"
rather than seek to maximize the revenue from their creation. Eric von Hippel
has for many years documented user innovation in areas ranging from surfboard
design to new mechanisms for pushing electric wiring through insulation
tiles.[^16] The Oratorio Society of New York, whose chorus [[pg 48]] members
are all volunteers, has filled Carnegie Hall every December with a performance
of Handel's Messiah since the theatre's first season in 1891. Political
parties, advocacy groups, and churches are but few of the stable social
organizations that fill our information environment with news and views. For
symmetry purposes in table 2.1, we also see reliance on internal inventories by
some nonmarket organizations, like secret government labs that do not release
their information outputs, but use it to continue to obtain public funding.
This is what I call "Los Alamos." Sharing in limited networks also occurs in
nonmarket relationships, as when academic colleagues circulate a draft to get
comments. In the nonmarket, nonproprietary domain, however, these strategies
were in the past relatively smaller in scope and significance than the simple
act of taking from the public domain and contributing back to it that typifies
most Joe Einstein behaviors. Only since the mid-1980s have we begun to see a
shift from releasing into the public domain to adoption of commons-binding
licensing, like the "copyleft" strategies I describe in chapter 3. What makes
these strategies distinct from Joe Einstein is that they formalize the
requirement of reciprocity, at least for some set of rights shared.

My point is not to provide an exhaustive list of all the ways we produce
information. It is simply to offer some texture to the statement that
information, knowledge, and culture are produced in diverse ways in
contemporary society. Doing so allows us to understand the comparatively
limited role that production based purely on exclusive rights--like patents,
copyrights, and similar regulatory constraints on the use and exchange of
information--has played in our information production system to this day. It is
not new or mysterious to suggest that nonmarket production is important to
information production. It is not new or mysterious to suggest that efficiency
increases whenever it is possible to produce information in a way that allows
the producer--whether market actor or not--to appropriate the benefits of
production without actually charging a price for use of the information itself.
Such strategies are legion among both market and nonmarket actors. Recognizing
this raises two distinct questions: First, how does the cluster of mechanisms
that make up intellectual property law affect this mix? Second, how do we
account for the mix of strategies at any given time? Why, for example, did
proprietary, market-based production become so salient in music and movies in
the twentieth century, and what is it about the digitally networked environment
that could change this mix? [[pg 49]]

THE EFFECTS OF EXCLUSIVE RIGHTS
...............................

Once we recognize that there are diverse strategies of appropriation for
information production, we come to see a new source of inefficiency caused by
strong "intellectual property"-type rights. Recall that in the mainstream
analysis, exclusive rights always cause static inefficiency--that is, they
allow producers to charge positive prices for products (information) that have
a zero marginal cost. Exclusive rights have a more ambiguous effect
dynamically. They raise the expected returns from information production, and
thereby are thought to induce investment in information production and
innovation. However, they also increase the costs of information inputs. If
existing innovations are more likely covered by patent, then current producers
will more likely have to pay for innovations or uses that in the past would
have been available freely from the public domain. Whether, overall, any given
regulatory change that increases the scope of exclusive rights improves or
undermines new innovation therefore depends on whether, given the level of
appropriability that preceded it, it increased input costs more or less than it
increased the prospect of being paid for one's outputs.

The diversity of appropriation strategies adds one more kink to this story.
Consider the following very simple hypothetical. Imagine an industry that
produces "infowidgets." There are ten firms in the business. Two of them are
infowidget publishers on the Romantic Maximizer model. They produce infowidgets
as finished goods, and sell them based on patent. Six firms produce infowidgets
on supply-side (Know-How) or demand-side (Scholarly Lawyer) effects: they make
their Realwidgets or Servicewidgets more efficient or desirable to consumers,
respectively. Two firms are nonprofit infowidget producers that exist on a
fixed, philanthropically endowed income. Each firm produces five infowidgets,
for a total market supply of fifty. Now imagine a change in law that increases
exclusivity. Assume that this is a change in law that, absent diversity of
appropriation, would be considered efficient. Say it increases input costs by
10 percent and appropriability by 20 percent, for a net expected gain of 10
percent. The two infowidget publishers would each see a 10 percent net gain,
and let us assume that this would cause each to increase its efforts by 10
percent and produce 10 percent more infowidgets. Looking at these two firms
alone, the change in law caused an increase from ten infowidgets to eleven--a
gain for the policy change. Looking at the market as a whole, however, eight
firms see an increase of 10 percent in costs, and no gain in appropriability.
This is because none of these firms [[pg 50]] actually relies on exclusive
rights to appropriate its product's value. If, commensurate with our assumption
for the publishers, we assume that this results in a decline in effort and
productivity of 10 percent for the eight firms, we would see these firms
decline from forty infowidgets to thirty-six, and total market production would
decline from fifty infowidgets to forty-seven.

Another kind of effect for the change in law may be to persuade some of the
firms to shift strategies or to consolidate. Imagine, for example, that most of
the inputs required by the two publishers were owned by the other infowidget
publisher. If the two firms merged into one Mickey, each could use the outputs
of the other at its marginal cost--zero--instead of at its exclusive-rights
market price. The increase in exclusive rights would then not affect the merged
firm's costs, only the costs of outside firms that would have to buy the merged
firm's outputs from the market. Given this dynamic, strong exclusive rights
drive concentration of inventory owners. We see this very clearly in the
increasing sizes of inventory-based firms like Disney. Moreover, the increased
appropriability in the exclusive-rights market will likely shift some firms at
the margin of the nonproprietary business models to adopt proprietary business
models. This, in turn, will increase the amount of information available only
from proprietary sources. The feedback effect will further accelerate the rise
in information input costs, increasing the gains from shifting to a proprietary
strategy and to consolidating larger inventories with new production.

Given diverse strategies, the primary unambiguous effect of increasing the
scope and force of exclusive rights is to shape the population of business
strategies. Strong exclusive rights increase the attractiveness of
exclusiverights-based strategies at the expense of nonproprietary strategies,
whether market-based or nonmarket based. They also increase the value and
attraction of consolidation of large inventories of existing information with
new production.

WHEN INFORMATION PRODUCTION MEETS THE COMPUTER NETWORK
......................................................

Music in the nineteenth century was largely a relational good. It was something
people did in the physical presence of each other: in the folk way through
hearing, repeating, and improvising; in the middle-class way of buying sheet
music and playing for guests or attending public performances; or in the
upper-class way of hiring musicians. Capital was widely distributed [[pg 51]]
among musicians in the form of instruments, or geographically dispersed in the
hands of performance hall (and drawing room) owners. Market-based production
depended on performance through presence. It provided opportunities for artists
to live and perform locally, or to reach stardom in cultural centers, but
without displacing the local performers. With the introduction of the
phonograph, a new, more passive relationship to played music was made possible
in reliance on the high-capital requirements of recording, copying, and
distributing specific instantiations of recorded music--records. What developed
was a concentrated, commercial industry, based on massive financial investments
in advertising, or preference formation, aimed at getting ever-larger crowds to
want those recordings that the recording executives had chosen. In other words,
the music industry took on a more industrial model of production, and many of
the local venues--from the living room to the local dance hall--came to be
occupied by mechanical recordings rather than amateur and professional local
performances. This model crowded out some, but not all, of the
live-performance-based markets (for example, jazz clubs, piano bars, or
weddings), and created new live-performance markets--the megastar concert tour.
The music industry shifted from a reliance on Scholarly Lawyer and Joe Einstein
models to reliance on Romantic Maximizer and Mickey models. As computers became
more music-capable and digital networks became a ubiquitously available
distribution medium, we saw the emergence of the present conflict over the
regulation of cultural production--the law of copyright--between the
twentieth-century, industrial model recording industry and the emerging amateur
distribution systems coupled, at least according to its supporters, to a
reemergence of decentralized, relation-based markets for professional
performance artists.

This stylized story of the music industry typifies the mass media more
generally. Since the introduction of the mechanical press and the telegraph,
followed by the phonograph, film, the high-powered radio transmitter, and
through to the cable plant or satellite, the capital costs of fixing
information and cultural goods in a transmission medium--a high-circulation
newspaper, a record or movie, a radio or television program--have been high and
increasing. The high physical and financial capital costs involved in making a
widely accessible information good and distributing it to the increasingly
larger communities (brought together by better transportation systems and more
interlinked economic and political systems) muted the relative role of
nonmarket production, and emphasized the role of those firms that could [[pg
52]] muster the financial and physical capital necessary to communicate on a
mass scale. Just as these large, industrial-age machine requirements increased
the capital costs involved in information and cultural production, thereby
triggering commercialization and concentration of much of this sector, so too
ubiquitously available cheap processors have dramatically reduced the capital
input costs required to fix information and cultural expressions and
communicate them globally. By doing so, they have rendered feasible a radical
reorganization of our information and cultural production system, away from
heavy reliance on commercial, concentrated business models and toward greater
reliance on nonproprietary appropriation strategies, in particular nonmarket
strategies whose efficacy was dampened throughout the industrial period by the
high capital costs of effective communication.

Information and cultural production have three primary categories of inputs.
The first is existing information and culture. We already know that existing
information is a nonrival good--that is, its real marginal cost at any given
moment is zero. The second major cost is that of the mechanical means of
sensing our environment, processing it, and communicating new information
goods. This is the high cost that typified the industrial model, and which has
drastically declined in computer networks. The third factor is human
communicative capacity--the creativity, experience, and cultural awareness
necessary to take from the universe of existing information and cultural
resources and turn them into new insights, symbols, or representations
meaningful to others with whom we converse. Given the zero cost of existing
information and the declining cost of communication and processing, human
capacity becomes the primary scarce resource in the networked information
economy.

Human communicative capacity, however, is an input with radically different
characteristics than those of, say, printing presses or satellites. It is held
by each individual, and cannot be "transferred" from one person to another or
aggregated like so many machines. It is something each of us innately has,
though in divergent quanta and qualities. Individual human capacities, rather
than the capacity to aggregate financial capital, become the economic core of
our information and cultural production. Some of that human capacity is
currently, and will continue to be, traded through markets in creative labor.
However, its liberation from the constraints of physical capital leaves
creative human beings much freer to engage in a wide range of information and
cultural production practices than those they could afford to participate in
when, in addition to creativity, experience, cultural awareness [[pg 53]] and
time, one needed a few million dollars to engage in information production.
From our friendships to our communities we live life and exchange ideas,
insights, and expressions in many more diverse relations than those mediated by
the market. In the physical economy, these relationships were largely relegated
to spaces outside of our economic production system. The promise of the
networked information economy is to bring this rich diversity of social life
smack into the middle of our economy and our productive lives.

Let's do a little experiment. Imagine that you were performing a Web search
with me. Imagine that we were using Google as our search engine, and that what
we wanted to do was answer the questions of an inquisitive six-year-old about
Viking ships. What would we get, sitting in front of our computers and plugging
in a search request for "Viking Ships"? The first site is Canadian, and
includes a collection of resources, essays, and worksheets. An enterprising
elementary school teacher at the Gander Academy in Newfoundland seems to have
put these together. He has essays on different questions, and links to sites
hosted by a wide range of individuals and organizations, such as a Swedish
museum, individual sites hosted on geocities, and even to a specific picture of
a replica Viking ship, hosted on a commercial site dedicated to selling
nautical replicas. In other words, it is a Joe Einstein site that points to
other sites, which in turn use either Joe Einstein or Scholarly Lawyer
strategies. This multiplicity of sources of information that show up on the
very first site is then replicated as one continues to explore the remaining
links. The second link is to a Norwegian site called "the Viking Network," a
Web ring dedicated to preparing and hosting short essays on Vikings. It
includes brief essays, maps, and external links, such as one to an article in
Scientific American. "To become a member you must produce an Information Sheet
on the Vikings in your local area and send it in electronic format to Viking
Network. Your info-sheet will then be included in the Viking Network web." The
third site is maintained by a Danish commercial photographer, and hosted in
Copenhagen, in a portion dedicated to photographs of archeological finds and
replicas of Danish Viking ships. A retired professor from the University of
Pittsburgh runs the fourth. The fifth is somewhere between a hobby and a
showcase for the services of an individual, independent Web publisher offering
publishing-related services. The sixth and seventh are museums, in Norway and
Virginia, respectively. The eighth is the Web site of a hobbyists' group
dedicated to building Viking Ship replicas. The ninth includes classroom
materials and [[pg 54]] teaching guides made freely available on the Internet
by PBS, the American Public Broadcasting Service. Certainly, if you perform
this search now, as you read this book, the rankings will change from those I
saw when I ran it; but I venture that the mix, the range and diversity of
producers, and the relative salience of nonmarket producers will not change
significantly.

The difference that the digitally networked environment makes is its capacity
to increase the efficacy, and therefore the importance, of many more, and more
diverse, nonmarket producers falling within the general category of Joe
Einstein. It makes nonmarket strategies--from individual hobbyists to formal,
well-funded nonprofits--vastly more effective than they could be in the
mass-media environment. The economics of this phenomenon are neither mysterious
nor complex. Imagine the grade-school teacher who wishes to put together ten to
twenty pages of materials on Viking ships for schoolchildren. Pre-Internet, he
would need to go to one or more libraries and museums, find books with
pictures, maps, and text, or take his own photographs (assuming he was
permitted by the museums) and write his own texts, combining this research. He
would then need to select portions, clear the copyrights to reprint them, find
a printing house that would set his text and pictures in a press, pay to print
a number of copies, and then distribute them to all children who wanted them.
Clearly, research today is simpler and cheaper. Cutting and pasting pictures
and texts that are digital is cheaper. Depending on where the teacher is
located, it is possible that these initial steps would have been
insurmountable, particularly for a teacher in a poorly endowed community
without easy access to books on the subject, where research would have required
substantial travel. Even once these barriers were surmounted, in the
precomputer, pre-Internet days, turning out materials that looked and felt like
a high quality product, with highresolution pictures and maps, and legible
print required access to capitalintensive facilities. The cost of creating even
one copy of such a product would likely dissuade the teacher from producing the
booklet. At most, he might have produced a mimeographed bibliography, and
perhaps some text reproduced on a photocopier. Now, place the teacher with a
computer and a high-speed Internet connection, at home or in the school
library. The cost of production and distribution of the products of his effort
are trivial. A Web site can be maintained for a few dollars a month. The
computer itself is widely accessible throughout the developed world. It becomes
trivial for a teacher to produce the "booklet"--with more information,
available to anyone in the world, anywhere, at any time, as long as he is
willing to spend [[pg 55]] some of his free time putting together the booklet
rather than watching television or reading a book.

When you multiply these very simple stylized facts by the roughly billion
people who live in societies sufficiently wealthy to allow cheap ubiquitous
Internet access, the breadth and depth of the transformation we are undergoing
begins to become clear. A billion people in advanced economies may have between
two billion and six billion spare hours among them, every day. In order to
harness these billions of hours, it would take the whole workforce of almost
340,000 workers employed by the entire motion picture and recording industries
in the United States put together, assuming each worker worked forty-hour weeks
without taking a single vacation, for between three and eight and a half years!
Beyond the sheer potential quantitative capacity, however one wishes to
discount it to account for different levels of talent, knowledge, and
motivation, a billion volunteers have qualities that make them more likely to
produce what others want to read, see, listen to, or experience. They have
diverse interests--as diverse as human culture itself. Some care about Viking
ships, others about the integrity of voting machines. Some care about obscure
music bands, others share a passion for baking. As Eben Moglen put it, "if you
wrap the Internet around every person on the planet and spin the planet,
software flows in the network. It's an emergent property of connected human
minds that they create things for one another's pleasure and to conquer their
uneasy sense of being too alone."[^17] It is this combination of a will to
create and to communicate with others, and a shared cultural experience that
makes it likely that each of us wants to talk about something that we believe
others will also want to talk about, that makes the billion potential
participants in today's online conversation, and the six billion in tomorrow's
conversation, affirmatively better than the commercial industrial model. When
the economics of industrial production require high up-front costs and low
marginal costs, the producers must focus on creating a few superstars and
making sure that everyone tunes in to listen or watch them. This requires that
they focus on averaging out what consumers are most likely to buy. This works
reasonably well as long as there is no better substitute. As long as it is
expensive to produce music or the evening news, there are indeed few
competitors for top billing, and the star system can function. Once every
person on the planet, or even only every person living in a wealthy economy and
10-20 percent of those living in poorer countries, can easily talk to their
friends and compatriots, the competition becomes tougher. It does not mean that
there is no continued role [[pg 56]] for the mass-produced and mass-marketed
cultural products--be they Britney Spears or the broadcast news. It does,
however, mean that many more "niche markets"--if markets, rather than
conversations, are what they should be called--begin to play an ever-increasing
role in the total mix of our cultural production system. The economics of
production in a digital environment should lead us to expect an increase in the
relative salience of nonmarket production models in the overall mix of our
information production system, and it is efficient for this to happen--more
information will be produced, and much of it will be available for its users at
its marginal cost.

The known quirky characteristics of information and knowledge as production
goods have always given nonmarket production a much greater role in this
production system than was common in capitalist economies for tangible goods.
The dramatic decline in the cost of the material means of producing and
exchanging information, knowledge, and culture has substantially decreased the
costs of information expression and exchange, and thereby increased the
relative efficacy of nonmarket production. When these facts are layered over
the fact that information, knowledge, and culture have become the central
high-value-added economic activities of the most advanced economies, we find
ourselves in a new and unfamiliar social and economic condition. Social
behavior that traditionally was relegated to the peripheries of the economy has
become central to the most advanced economies. Nonmarket behavior is becoming
central to producing our information and cultural environment. Sources of
knowledge and cultural edification, through which we come to know and
comprehend the world, to form our opinions about it, and to express ourselves
in communication with others about what we see and believe have shifted from
heavy reliance on commercial, concentrated media, to being produced on a much
more widely distributed model, by many actors who are not driven by the
imperatives of advertising or the sale of entertainment goods.

STRONG EXCLUSIVE RIGHTS IN THE DIGITAL ENVIRONMENT
..................................................

We now have the basic elements of a clash between incumbent institutions and
emerging social practice. Technologies of information and cultural production
initially led to the increasing salience of commercial, industrialmodel
production in these areas. Over the course of the twentieth century, [[pg 57]]
in some of the most culturally visible industries like movies and music,
copyright law coevolved with the industrial model. By the end of the twentieth
century, copyright was longer, broader, and vastly more encompassing than it
had been at the beginning of that century. Other exclusive rights in
information, culture, and the fruits of innovation expanded following a similar
logic. Strong, broad, exclusive rights like these have predictable effects.
They preferentially improve the returns to business models that rely on
exclusive rights, like copyrights and patents, at the expense of information
and cultural production outside the market or in market relationships that do
not depend on exclusive appropriation. They make it more lucrative to
consolidate inventories of existing materials. The businesses that developed
around the material capital required for production fed back into the political
system, which responded by serially optimizing the institutional ecology to fit
the needs of the industrial information economy firms at the expense of other
information producers.

The networked information economy has upset the apple cart on the technical,
material cost side of information production and exchange. The institutional
ecology, the political framework (the lobbyists, the habits of legislatures),
and the legal culture (the beliefs of judges, the practices of lawyers) have
not changed. They are as they developed over the course of the twentieth
century--centered on optimizing the conditions of those commercial firms that
thrive in the presence of strong exclusive rights in information and culture.
The outcome of the conflict between the industrial information economy and its
emerging networked alternative will determine whether we evolve into a
permission culture, as Lessig warns and projects, or into a society marked by
social practice of nonmarket production and cooperative sharing of information,
knowledge, and culture of the type I describe throughout this book, and which I
argue will improve freedom and justice in liberal societies. Chapter 11
chronicles many of the arenas in which this basic conflict is played out.
However, for the remainder of this part and part II, the basic economic
understanding I offer here is all that is necessary.

There are diverse motivations and strategies for organizing information
production. Their relative attractiveness is to some extent dependent on
technology, to some extent on institutional arrangements. The rise that we see
today in the efficacy and scope of nonmarket production, and of the peer
production that I describe and analyze in the following two chapters, are well
within the predictable, given our understanding of the economics of information
production. The social practices of information production [[pg 58]] that form
the basis of much of the normative analysis I offer in part II are internally
sustainable given the material conditions of information production and
exchange in the digitally networked environment. These patterns are unfamiliar
to us. They grate on our intuitions about how production happens. They grate on
the institutional arrangements we developed over the course of the twentieth
century to regulate information and cultural production. But that is because
they arise from a quite basically different set of material conditions. We must
understand these new modes of production. We must learn to evaluate them and
compare their advantages and disadvantages to those of the industrial
information producers. And then we must adjust our institutional environment to
make way for the new social practices made possible by the networked
environment. [[pg 59]]


----------------------------------------
CHAPTER 3 - PEER PRODUCTION AND SHARING
---------------------------------------

At the heart of the economic engine, of the world's most advanced economies, we
are beginning to notice a persistent and quite amazing phenomenon. A new model
of production has taken root; one that should not be there, at least according
to our most widely held beliefs about economic behavior. It should not, the
intuitions of the late-twentieth-century American would say, be the case that
thousands of volunteers will come together to collaborate on a complex economic
project. It certainly should not be that these volunteers will beat the largest
and best-financed business enterprises in the world at their own game. And yet,
this is precisely what is happening in the software world.

Industrial organization literature provides a prominent place for the
transaction costs view of markets and firms, based on insights of Ronald Coase
and Oliver Williamson. On this view, people use markets when the gains from
doing so, net of transaction costs, exceed the gains from doing the same thing
in a managed firm, net of the costs of organizing and managing a firm. Firms
emerge when the opposite is true, and transaction costs can best be reduced by
[[pg 60]] bringing an activity into a managed context that requires no
individual transactions to allocate this resource or that effort. The emergence
of free and open-source software, and the phenomenal success of its flagships,
the GNU/ Linux operating system, the Apache Web server, Perl, and many others,
should cause us to take a second look at this dominant paradigm.[^18] Free
software projects do not rely on markets or on managerial hierarchies to
organize production. Programmers do not generally participate in a project
because someone who is their boss told them to, though some do. They do not
generally participate in a project because someone offers them a price to do
so, though some participants do focus on long-term appropriation through
money-oriented activities, like consulting or service contracts. However, the
critical mass of participation in projects cannot be explained by the direct
presence of a price or even a future monetary return. This is particularly true
of the all-important, microlevel decisions: who will work, with what software,
on what project. In other words, programmers participate in free software
projects without following the signals generated by marketbased, firm-based, or
hybrid models. In chapter 2 I focused on how the networked information economy
departs from the industrial information economy by improving the efficacy of
nonmarket production generally. Free software offers a glimpse at a more basic
and radical challenge. It suggests that the networked environment makes
possible a new modality of organizing production: radically decentralized,
collaborative, and nonproprietary; based on sharing resources and outputs among
widely distributed, loosely connected individuals who cooperate with each other
without relying on either market signals or managerial commands. This is what I
call "commons-based peer production."

"Commons" refers to a particular institutional form of structuring the rights
to access, use, and control resources. It is the opposite of "property" in the
following sense: With property, law determines one particular person who has
the authority to decide how the resource will be used. That person may sell it,
or give it away, more or less as he or she pleases. "More or less" because
property doesn't mean anything goes. We cannot, for example, decide that we
will give our property away to one branch of our family, as long as that branch
has boys, and then if that branch has no boys, decree that the property will
revert to some other branch of the family. That type of provision, once common
in English property law, is now legally void for public policy reasons. There
are many other things we cannot do with our property--like build on wetlands.
However, the core characteristic of property [[pg 61]] as the institutional
foundation of markets is that the allocation of power to decide how a resource
will be used is systematically and drastically asymmetric. That asymmetry
permits the existence of "an owner" who can decide what to do, and with whom.
We know that transactions must be made-- rent, purchase, and so forth--if we
want the resource to be put to some other use. The salient characteristic of
commons, as opposed to property, is that no single person has exclusive control
over the use and disposition of any particular resource in the commons.
Instead, resources governed by commons may be used or disposed of by anyone
among some (more or less well-defined) number of persons, under rules that may
range from "anything goes" to quite crisply articulated formal rules that are
effectively enforced.

Commons can be divided into four types based on two parameters. The first
parameter is whether they are open to anyone or only to a defined group. The
oceans, the air, and highway systems are clear examples of open commons.
Various traditional pasture arrangements in Swiss villages or irrigation
regions in Spain are now classic examples, described by Eleanor Ostrom, of
limited-access common resources--where access is limited only to members of the
village or association that collectively "owns" some defined pasturelands or
irrigation system.[^19] As Carol Rose noted, these are better thought of as
limited common property regimes, rather than commons, because they behave as
property vis-a-vis the entire world except members ` of the group who together
hold them in common. The second parameter is whether a commons system is
regulated or unregulated. Practically all well-studied, limited common property
regimes are regulated by more or less elaborate rules--some formal, some
social-conventional--governing the use of the resources. Open commons, on the
other hand, vary widely. Some commons, called open access, are governed by no
rule. Anyone can use resources within these types of commons at will and
without payment. Air is such a resource, with respect to air intake (breathing,
feeding a turbine). However, air is a regulated commons with regard to outtake.
For individual human beings, breathing out is mildly regulated by social
convention--you do not breath too heavily on another human being's face unless
forced to. Air is a more extensively regulated commons for industrial
exhalation--in the shape of pollution controls. The most successful and obvious
regulated commons in contemporary landscapes are the sidewalks, streets, roads,
and highways that cover our land and regulate the material foundation of our
ability to move from one place to the other. In all these cases, however, the
characteristic of commons is that the constraints, if any, are symmetric [[pg
62]] among all users, and cannot be unilaterally controlled by any single
individual. The term "commons-based" is intended to underscore that what is
characteristic of the cooperative enterprises I describe in this chapter is
that they are not built around the asymmetric exclusion typical of property.
Rather, the inputs and outputs of the process are shared, freely or
conditionally, in an institutional form that leaves them equally available for
all to use as they choose at their individual discretion. This latter
characteristic-- that commons leave individuals free to make their own choices
with regard to resources managed as a commons--is at the foundation of the
freedom they make possible. This is a freedom I return to in the discussion of
autonomy. Not all commons-based production efforts qualify as peer production.
Any production strategy that manages its inputs and outputs as commons locates
that production modality outside the proprietary system, in a framework of
social relations. It is the freedom to interact with resources and projects
without seeking anyone's permission that marks commons-based production
generally, and it is also that freedom that underlies the particular
efficiencies of peer production, which I explore in chapter 4.

The term "peer production" characterizes a subset of commons-based production
practices. It refers to production systems that depend on individual action
that is self-selected and decentralized, rather than hierarchically assigned.
"Centralization" is a particular response to the problem of how to make the
behavior of many individual agents cohere into an effective pattern or achieve
an effective result. Its primary attribute is the separation of the locus of
opportunities for action from the authority to choose the action that the agent
will undertake. Government authorities, firm managers, teachers in a classroom,
all occupy a context in which potentially many individual wills could lead to
action, and reduce the number of people whose will is permitted to affect the
actual behavior patterns that the agents will adopt. "Decentralization"
describes conditions under which the actions of many agents cohere and are
effective despite the fact that they do not rely on reducing the number of
people whose will counts to direct effective action. A substantial literature
in the past twenty years, typified, for example, by Charles Sabel's work, has
focused on the ways in which firms have tried to overcome the rigidities of
managerial pyramids by decentralizing learning, planning, and execution of the
firm's functions in the hands of employees or teams. The most pervasive mode of
"decentralization," however, is the ideal market. Each individual agent acts
according to his or her will. Coherence and efficacy emerge because individuals
signal their wishes, and plan [[pg 63]] their behavior not in cooperation with
others, but by coordinating, understanding the will of others and expressing
their own through the price system.

What we are seeing now is the emergence of more effective collective action
practices that are decentralized but do not rely on either the price system or
a managerial structure for coordination. In this, they complement the
increasing salience of uncoordinated nonmarket behavior that we saw in chapter
2. The networked environment not only provides a more effective platform for
action to nonprofit organizations that organize action like firms or to
hobbyists who merely coexist coordinately. It also provides a platform for new
mechanisms for widely dispersed agents to adopt radically decentralized
cooperation strategies other than by using proprietary and contractual claims
to elicit prices or impose managerial commands. This kind of information
production by agents operating on a decentralized, nonproprietary model is not
completely new. Science is built by many people contributing incrementally--not
operating on market signals, not being handed their research marching orders by
a boss--independently deciding what to research, bringing their collaboration
together, and creating science. What we see in the networked information
economy is a dramatic increase in the importance and the centrality of
information produced in this way.

FREE/OPEN-SOURCE SOFTWARE
.........................

The quintessential instance of commons-based peer production has been free
software. Free software, or open source, is an approach to software development
that is based on shared effort on a nonproprietary model. It depends on many
individuals contributing to a common project, with a variety of motivations,
and sharing their respective contributions without any single person or entity
asserting rights to exclude either from the contributed components or from the
resulting whole. In order to avoid having the joint product appropriated by any
single party, participants usually retain copyrights in their contribution, but
license them to anyone--participant or stranger--on a model that combines a
universal license to use the materials with licensing constraints that make it
difficult, if not impossible, for any single contributor or third party to
appropriate the project. This model of licensing is the most important
institutional innovation of the free software movement. Its central instance is
the GNU General Public License, or GPL. [[pg 64]]

This requires anyone who modifies software and distributes the modified version
to license it under the same free terms as the original software. While there
have been many arguments about how widely the provisions that prevent
downstream appropriation should be used, the practical adoption patterns have
been dominated by forms of licensing that prevent anyone from exclusively
appropriating the contributions or the joint product. More than 85 percent of
active free software projects include some version of the GPL or similarly
structured license.[^20]

Free software has played a critical role in the recognition of peer production,
because software is a functional good with measurable qualities. It can be more
or less authoritatively tested against its market-based competitors. And, in
many instances, free software has prevailed. About 70 percent of Web server
software, in particular for critical e-commerce sites, runs on the Apache Web
server--free software.[^21] More than half of all back-office e-mail functions
are run by one free software program or another. Google, Amazon, and CNN.com,
for example, run their Web servers on the GNU/Linux operating system. They do
this, presumably, because they believe this peerproduced operating system is
more reliable than the alternatives, not because the system is "free." It would
be absurd to risk a higher rate of failure in their core business activities in
order to save a few hundred thousand dollars on licensing fees. Companies like
IBM and Hewlett Packard, consumer electronics manufacturers, as well as
military and other mission-critical government agencies around the world have
begun to adopt business and service strategies that rely and extend free
software. They do this because it allows them to build better equipment, sell
better services, or better fulfill their public role, even though they do not
control the software development process and cannot claim proprietary rights of
exclusion in the products of their contributions.

The story of free software begins in 1984, when Richard Stallman started
working on a project of building a nonproprietary operating system he called
GNU (GNU's Not Unix). Stallman, then at the Massachusetts Institute of
Technology (MIT), operated from political conviction. He wanted a world in
which software enabled people to use information freely, where no one would
have to ask permission to change the software they use to fit their needs or to
share it with a friend for whom it would be helpful. These freedoms to share
and to make your own software were fundamentally incompatible with a model of
production that relies on property rights and markets, he thought, because in
order for there to be a market in uses of [[pg 65]] software, owners must be
able to make the software unavailable to people who need it. These people would
then pay the provider in exchange for access to the software or modification
they need. If anyone can make software or share software they possess with
friends, it becomes very difficult to write software on a business model that
relies on excluding people from software they need unless they pay. As a
practical matter, Stallman started writing software himself, and wrote a good
bit of it. More fundamentally, he adopted a legal technique that started a
snowball rolling. He could not write a whole operating system by himself.
Instead, he released pieces of his code under a license that allowed anyone to
copy, distribute, and modify the software in whatever way they pleased. He
required only that, if the person who modified the software then distributed it
to others, he or she do so under the exact same conditions that he had
distributed his software. In this way, he invited all other programmers to
collaborate with him on this development program, if they wanted to, on the
condition that they be as generous with making their contributions available to
others as he had been with his. Because he retained the copyright to the
software he distributed, he could write this condition into the license that he
attached to the software. This meant that anyone using or distributing the
software as is, without modifying it, would not violate Stallman's license.
They could also modify the software for their own use, and this would not
violate the license. However, if they chose to distribute the modified
software, they would violate Stallman's copyright unless they included a
license identical to his with the software they distributed. This license
became the GNU General Public License, or GPL. The legal jujitsu Stallman
used--asserting his own copyright claims, but only to force all downstream
users who wanted to rely on his contributions to make their own contributions
available to everyone else--came to be known as "copyleft," an ironic twist on
copyright. This legal artifice allowed anyone to contribute to the GNU project
without worrying that one day they would wake up and find that someone had
locked them out of the system they had helped to build.

The next major step came when a person with a more practical, rather than
prophetic, approach to his work began developing one central component of the
operating system--the kernel. Linus Torvalds began to share the early
implementations of his kernel, called Linux, with others, under the GPL. These
others then modified, added, contributed, and shared among themselves these
pieces of the operating system. Building on top of Stallman's foundation,
Torvalds crystallized a model of production that was fundamentally [[pg 66]]
different from those that preceded it. His model was based on voluntary
contributions and ubiquitous, recursive sharing; on small incremental
improvements to a project by widely dispersed people, some of whom contributed
a lot, others a little. Based on our usual assumptions about volunteer projects
and decentralized production processes that have no managers, this was a model
that could not succeed. But it did.

It took almost a decade for the mainstream technology industry to recognize the
value of free or open-source software development and its collaborative
production methodology. As the process expanded and came to encompass more
participants, and produce more of the basic tools of Internet connectivity--Web
server, e-mail server, scripting--more of those who participated sought to
"normalize" it, or, more specifically, to render it apolitical. Free software
is about freedom ("free as in free speech, not free beer" is Stallman's epitaph
for it). "Open-source software" was chosen as a term that would not carry the
political connotations. It was simply a mode of organizing software production
that may be more effective than market-based production. This move to
depoliticize peer production of software led to something of a schism between
the free software movement and the communities of open source software
developers. It is important to understand, however, that from the perspective
of society at large and the historical trajectory of information production
generally the abandonment of political motivation and the importation of free
software into the mainstream have not made it less politically interesting, but
more so. Open source and its wide adoption in the business and bureaucratic
mainstream allowed free software to emerge from the fringes of the software
world and move to the center of the public debate about practical alternatives
to the current way of doing things.

So what is open-source software development? The best source for a
phenomenology of open-source development continues to be Eric Raymond's
/Cathedral and Bazaar/, written in 1998. Imagine that one person, or a small
group of friends, wants a utility. It could be a text editor, photo-retouching
software, or an operating system. The person or small group starts by
developing a part of this project, up to a point where the whole utility--if it
is simple enough--or some important part of it, is functional, though it might
have much room for improvement. At this point, the person makes the program
freely available to others, with its source code--instructions in a
human-readable language that explain how the software does whatever it does
when compiled into a machine-readable language. When others begin [[pg 67]] to
use it, they may find bugs, or related utilities that they want to add (e.g.,
the photo-retouching software only increases size and sharpness, and one of its
users wants it to allow changing colors as well). The person who has found the
bug or is interested in how to add functions to the software may or may not be
the best person in the world to actually write the software fix. Nevertheless,
he reports the bug or the new need in an Internet forum of users of the
software. That person, or someone else, then thinks that they have a way of
tweaking the software to fix the bug or add the new utility. They then do so,
just as the first person did, and release a new version of the software with
the fix or the added utility. The result is a collaboration between three
people--the first author, who wrote the initial software; the second person,
who identified a problem or shortcoming; and the third person, who fixed it.
This collaboration is not managed by anyone who organizes the three, but is
instead the outcome of them all reading the same Internet-based forum and using
the same software, which is released under an open, rather than proprietary,
license. This enables some of its users to identify problems and others to fix
these problems without asking anyone's permission and without engaging in any
transactions.

The most surprising thing that the open source movement has shown, in real
life, is that this simple model can operate on very different scales, from the
small, three-person model I described for simple projects, up to the many
thousands of people involved in writing the Linux kernel and the GNU/ Linux
operating system--an immensely difficult production task. SourceForge, the most
popular hosting-meeting place of such projects, has close to 100,000 registered
projects, and nearly a million registered users. The economics of this
phenomenon are complex. In the larger-scale models, actual organization form is
more diverse than the simple, three-person model. In particular, in some of the
larger projects, most prominently the Linux kernel development process, a
certain kind of meritocratic hierarchy is clearly present. However, it is a
hierarchy that is very different in style, practical implementation, and
organizational role than that of the manager in the firm. I explain this in
chapter 4, as part of the analysis of the organizational forms of peer
production. For now, all we need is a broad outline of how peer-production
projects look, as we turn to observe case studies of kindred production models
in areas outside of software. [[pg 68]]

PEER PRODUCTION OF INFORMATION, KNOWLEDGE, AND CULTURE GENERALLY
................................................................

Free software is, without a doubt, the most visible instance of peer production
at the turn of the twenty-first century. It is by no means, however, the only
instance. Ubiquitous computer communications networks are bringing about a
dramatic change in the scope, scale, and efficacy of peer production throughout
the information and cultural production system. As computers become cheaper and
as network connections become faster, cheaper, and ubiquitous, we are seeing
the phenomenon of peer production of information scale to much larger sizes,
performing more complex tasks than were possible in the past for
nonprofessional production. To make this phenomenon more tangible, I describe a
number of such enterprises, organized to demonstrate the feasibility of this
approach throughout the information production and exchange chain. While it is
possible to break an act of communication into finer-grained subcomponents,
largely we see three distinct functions involved in the process. First, there
is an initial utterance of a humanly meaningful statement. Writing an article
or drawing a picture, whether done by a professional or an amateur, whether
high quality or low, is such an action. Second, there is a separate function of
mapping the initial utterances on a knowledge map. In particular, an utterance
must be understood as "relevant" in some sense, and "credible." Relevance is a
subjective question of mapping an utterance on the conceptual map of a given
user seeking information for a particular purpose defined by that individual.
Credibility is a question of quality by some objective measure that the
individual adopts as appropriate for purposes of evaluating a given utterance.
The distinction between the two is somewhat artificial, however, because very
often the utility of a piece of information will depend on a combined valuation
of its credibility and relevance. I therefore refer to
"relevance/accreditation" as a single function for purposes of this discussion,
keeping in mind that the two are complementary and not entirely separable
functions that an individual requires as part of being able to use utterances
that others have uttered in putting together the user's understanding of the
world. Finally, there is the function of distribution, or how one takes an
utterance produced by one person and distributes it to other people who find it
credible and relevant. In the mass-media world, these functions were often,
though by no means always, integrated. NBC news produced the utterances, gave
them credibility by clearing them on the evening news, and distributed [[pg
69]] them simultaneously. What the Internet is permitting is much greater
disaggregation of these functions.

UTTERING CONTENT
................

NASA Clickworkers was "an experiment to see if public volunteers, each working
for a few minutes here and there can do some routine science analysis that
would normally be done by a scientist or graduate student working for months on
end." Users could mark craters on maps of Mars, classify craters that have
already been marked, or search the Mars landscape for "honeycomb" terrain. The
project was "a pilot study with limited funding, run part-time by one software
engineer, with occasional input from two scientists." In its first six months
of operation, more than 85,000 users visited the site, with many contributing
to the effort, making more than 1.9 million entries (including redundant
entries of the same craters, used to average out errors). An analysis of the
quality of markings showed "that the automaticallycomputed consensus of a large
number of clickworkers is virtually indistinguishable from the inputs of a
geologist with years of experience in identifying Mars craters."[^22] The tasks
performed by clickworkers (like marking craters) were discrete, each easily
performed in a matter of minutes. As a result, users could choose to work for a
few minutes doing a single iteration or for hours by doing many. An early study
of the project suggested that some clickworkers indeed worked on the project
for weeks, but that 37 percent of the work was done by one-time
contributors.[^23]

The clickworkers project was a particularly clear example of how a complex
professional task that requires a number of highly trained individuals on
full-time salaries can be reorganized so as to be performed by tens of
thousands of volunteers in increments so minute that the tasks could be
performed on a much lower budget. The low budget would be devoted to
coordinating the volunteer effort. However, the raw human capital needed would
be contributed for the fun of it. The professionalism of the original
scientists was replaced by a combination of high modularization of the task.
The organizers broke a large, complex task into small, independent modules.
They built in redundancy and automated averaging out of both errors and
purposeful erroneous markings--like those of an errant art student who thought
it amusing to mark concentric circles on the map. What the NASA scientists
running this experiment had tapped into was a vast pool of fiveminute
increments of human judgment, applied with motivation to participate in a task
unrelated to "making a living." [[pg 70]]

While clickworkers was a distinct, self-conscious experiment, it suggests
characteristics of distributed production that are, in fact, quite widely
observable. We have already seen in chapter 2, in our little search for Viking
ships, how the Internet can produce encyclopedic or almanac-type information.
The power of the Web to answer such an encyclopedic question comes not from the
fact that one particular site has all the great answers. It is not an
Encyclopedia Britannica. The power comes from the fact that it allows a user
looking for specific information at a given time to collect answers from a
sufficiently large number of contributions. The task of sifting and accrediting
falls to the user, motivated by the need to find an answer to the question
posed. As long as there are tools to lower the cost of that task to a level
acceptable to the user, the Web shall have "produced" the information content
the user was looking for. These are not trivial considerations, but they are
also not intractable. As we shall see, some of the solutions can themselves be
peer produced, and some solutions are emerging as a function of the speed of
computation and communication, which enables more efficient technological
solutions.

Encyclopedic and almanac-type information emerges on the Web out of the
coordinate but entirely independent action of millions of users. This type of
information also provides the focus on one of the most successful collaborative
enterprises that has developed in the first five years of the twenty-first
century, /Wikipedia/. /Wikipedia/ was founded by an Internet entrepreneur,
Jimmy Wales. Wales had earlier tried to organize an encyclopedia named Nupedia,
which was built on a traditional production model, but whose outputs were to be
released freely: its contributors were to be PhDs, using a formal,
peer-reviewed process. That project appears to have failed to generate a
sufficient number of high-quality contributions, but its outputs were used in
/Wikipedia/ as the seeds for a radically new form of encyclopedia writing.
Founded in January 2001, /Wikipedia/ combines three core characteristics:
First, it uses a collaborative authorship tool, Wiki. This platform enables
anyone, including anonymous passersby, to edit almost any page in the entire
project. It stores all versions, makes changes easily visible, and enables
anyone to revert a document to any prior version as well as to add changes,
small and large. All contributions and changes are rendered transparent by the
software and database. Second, it is a self-conscious effort at creating an
encyclopedia--governed first and foremost by a collective informal undertaking
to strive for a neutral point of view, within the limits of substantial
self-awareness as to the difficulties of such an enterprise. An effort [[pg
71]] to represent sympathetically all views on a subject, rather than to
achieve objectivity, is the core operative characteristic of this effort.
Third, all the content generated by this collaboration is released under the
GNU Free Documentation License, an adaptation of the GNU GPL to texts. The
shift in strategy toward an open, peer-produced model proved enormously
successful. The site saw tremendous growth both in the number of contributors,
including the number of active and very active contributors, and in the number
of articles included in the encyclopedia (table 3.1). Most of the early growth
was in English, but more recently there has been an increase in the number of
articles in many other languages: most notably in German (more than 200,000
articles), Japanese (more than 120,000 articles), and French (about 100,000),
but also in another five languages that have between 40,000 and 70,000 articles
each, another eleven languages with 10,000 to 40,000 articles each, and
thirty-five languages with between 1,000 and 10,000 articles each.

The first systematic study of the quality of /Wikipedia/ articles was published
as this book was going to press. The journal Nature compared 42 science
articles from /Wikipedia/ to the gold standard of the Encyclopedia Britannica,
and concluded that "the difference in accuracy was not particularly
great."[^24] On November 15, 2004, Robert McHenry, a former editor in chief of
the Encyclopedia Britannica, published an article criticizing /Wikipedia/ as
"The Faith-Based Encyclopedia."[^25] As an example, McHenry mocked the
/Wikipedia/ article on Alexander Hamilton. He noted that Hamilton biographers
have a problem fixing his birth year--whether it is 1755 or 1757. /Wikipedia/
glossed over this error, fixing the date at 1755. McHenry then went on to
criticize the way the dates were treated throughout the article, using it as an
anchor to his general claim: /Wikipedia/ is unreliable because it is not
professionally produced. What McHenry did not note was that the other major
online encyclopedias--like Columbia or Encarta--similarly failed to deal with
the ambiguity surrounding Hamilton's birth date. Only the Britannica did.
However, McHenry's critique triggered the /Wikipedia/ distributed correction
mechanism. Within hours of the publication of McHenry's Web article, the
reference was corrected. The following few days saw intensive cleanup efforts
to conform all references in the biography to the newly corrected version.
Within a week or so, /Wikipedia/ had a correct, reasonably clean version. It
now stood alone with the Encyclopedia Britannica as a source of accurate basic
encyclopedic information. In coming to curse it, McHenry found himself blessing
/Wikipedia/. He had demonstrated [[pg 72]] precisely the correction mechanism
that makes /Wikipedia/, in the long term, a robust model of reasonably reliable
information.

*Table 3.1: Contributors to Wikipedia, January 2001 - June 2005*

┆Jan. 2001┆Jan. 2002┆Jan. 2003┆Jan. 2004┆July 2004┆June 2006
Contributors*┆10┆472┆2,188┆9,653┆25,011┆48,721
Active contributors**┆9┆212┆846┆3,228┆8,442┆16,945
Very active contributors***┆0┆31┆190┆692┆1,639┆3,016
No. of English language articles┆25┆16,000┆101,000┆190,000┆320,000┆630,000
No. of articles, all languages┆25┆19,000┆138,000┆490,000┆862,000┆1,600,000

* Contributed at least ten times; ** at least 5 times in last month; *** more
than 100 times in last month.

- Perhaps the most interesting characteristic about /Wikipedia/ is the
selfconscious social-norms-based dedication to objective writing. Unlike some
of the other projects that I describe in this chapter, /Wikipedia/ does not
include elaborate software-controlled access and editing capabilities. It is
generally open for anyone to edit the materials, delete another's change,
debate the desirable contents, survey archives for prior changes, and so forth.
It depends on self-conscious use of open discourse, usually aimed at consensus.
While there is the possibility that a user will call for a vote of the
participants on any given definition, such calls can, and usually are, ignored
by the community unless a sufficiently large number of users have decided that
debate has been exhausted. While the system operators and server host--
Wales--have the practical power to block users who are systematically
disruptive, this power seems to be used rarely. The project relies instead on
social norms to secure the dedication of project participants to objective
writing. So, while not entirely anarchic, the project is nonetheless
substantially more social, human, and intensively discourse- and trust-based
than the other major projects described here. The following fragments from an
early version of the self-described essential characteristics and basic
policies of /Wikipedia/ are illustrative:

  First and foremost, the /Wikipedia/ project is self-consciously an
  encyclopedia-- rather than a dictionary, discussion forum, web portal, etc.
  /Wikipedia/'s participants [[pg 73]] commonly follow, and enforce, a few
  basic policies that seem essential to keeping the project running smoothly
  and productively. First, because we have a huge variety of participants of
  all ideologies, and from around the world, /Wikipedia/ is committed to making
  its articles as unbiased as possible. The aim is not to write articles from a
  single objective point of view--this is a common misunderstanding of the
  policy--but rather, to fairly and sympathetically present all views on an
  issue. See "neutral point of view" page for further explanation. [^26]

The point to see from this quotation is that the participants of /Wikipedia/
are plainly people who like to write. Some of them participate in other
collaborative authorship projects. However, when they enter the common project
of /Wikipedia/, they undertake to participate in a particular way--a way that
the group has adopted to make its product be an encyclopedia. On their
interpretation, that means conveying in brief terms the state of the art on the
item, including divergent opinions about it, but not the author's opinion.
Whether that is an attainable goal is a subject of interpretive theory, and is
a question as applicable to a professional encyclopedia as it is to
/Wikipedia/. As the project has grown, it has developed more elaborate spaces
for discussing governance and for conflict resolution. It has developed
structures for mediation, and if that fails, arbitration, of disputes about
particular articles.

The important point is that /Wikipedia/ requires not only mechanical
cooperation among people, but a commitment to a particular style of writing and
describing concepts that is far from intuitive or natural to people. It
requires self-discipline. It enforces the behavior it requires primarily
through appeal to the common enterprise that the participants are engaged in,
coupled with a thoroughly transparent platform that faithfully records and
renders all individual interventions in the common project and facilitates
discourse among participants about how their contributions do, or do not,
contribute to this common enterprise. This combination of an explicit statement
of common purpose, transparency, and the ability of participants to identify
each other's actions and counteract them--that is, edit out "bad" or
"faithless" definitions--seems to have succeeded in keeping this community from
devolving into inefficacy or worse. A case study by IBM showed, for example,
that while there were many instances of vandalism on /Wikipedia/, including
deletion of entire versions of articles on controversial topics like
"abortion," the ability of users to see what was done and to fix it with a
single click by reverting to a past version meant that acts of vandalism were
[[pg 74]] corrected within minutes. Indeed, corrections were so rapid that
vandalism acts and their corrections did not even appear on a mechanically
generated image of the abortion definition as it changed over time.[^27] What
is perhaps surprising is that this success occurs not in a tightly knit
community with many social relations to reinforce the sense of common purpose
and the social norms embodying it, but in a large and geographically dispersed
group of otherwise unrelated participants. It suggests that even in a group of
this size, social norms coupled with a facility to allow any participant to
edit out purposeful or mistaken deviations in contravention of the social
norms, and a robust platform for largely unmediated conversation, keep the
group on track.

A very different cultural form of distributed content production is presented
by the rise of massive multiplayer online games (MMOGs) as immersive
entertainment. These fall in the same cultural "time slot" as television shows
and movies of the twentieth century. The interesting thing about these types of
games is that they organize the production of "scripts" very differently from
movies or television shows. In a game like Ultima Online or EverQuest, the role
of the commercial provider is not to tell a finished, highly polished story to
be consumed start to finish by passive consumers. Rather, the role of the game
provider is to build tools with which users collaborate to tell a story. There
have been observations about this approach for years, regarding MUDs
(Multi-User Dungeons) and MOOs (Multi-User Object Oriented games). The point to
understand about MMOGs is that they produce a discrete element of "content"
that was in the past dominated by centralized professional production. The
screenwriter of an immersive entertainment product like a movie is like the
scientist marking Mars craters--a professional producer of a finished good. In
MMOGs, this function is produced by using the appropriate software platform to
allow the story to be written by the many users as they experience it. The
individual contributions of the users/coauthors of the story line are literally
done for fun-- they are playing a game. However, they are spending real
economic goods-- their attention and substantial subscription fees--on a form
of entertainment that uses a platform for active coproduction of a story line
to displace what was once passive reception of a finished, commercially and
professionally manufactured good.

By 2003, a company called Linden Lab took this concept a major step forward by
building an online game environment called Second Life. Second Life began
almost entirely devoid of content. It was tools all the way down. [[pg 75]]
Within a matter of months, it had thousands of subscribers, inhabiting a
"world" that had thousands of characters, hundreds of thousands of objects,
multiple areas, villages, and "story lines." The individual users themselves
had created more than 99 percent of all objects in the game environment, and
all story lines and substantive frameworks for interaction--such as a
particular village or group of theme-based participants. The interactions in
the game environment involved a good deal of gift giving and a good deal of
trade, but also some very surprising structured behaviors. Some users set up a
university, where lessons were given in both in-game skills and in programming.
Others designed spaceships and engaged in alien abductions (undergoing one
seemed to become a status symbol within the game). At one point, aiming
(successfully) to prevent the company from changing its pricing policy, users
staged a demonstration by making signs and picketing the entry point to the
game; and a "tax revolt" by placing large numbers of "tea crates" around an
in-game reproduction of the Washington Monument. Within months, Second Life had
become an immersive experience, like a movie or book, but one where the
commercial provider offered a platform and tools, while the users wrote the
story lines, rendered the "set," and performed the entire play.

RELEVANCE/ACCREDITATION
.......................

How are we to know that the content produced by widely dispersed individuals is
not sheer gobbledygook? Can relevance and accreditation itself be produced on a
peer-production model? One type of answer is provided by looking at commercial
businesses that successfully break off precisely the "accreditation and
relevance" piece of their product, and rely on peer production to perform that
function. Amazon and Google are probably the two most prominent examples of
this strategy.

Amazon uses a mix of mechanisms to get in front of their buyers of books and
other products that the users are likely to purchase. A number of these
mechanisms produce relevance and accreditation by harnessing the users
themselves. At the simplest level, the recommendation "customers who bought
items you recently viewed also bought these items" is a mechanical means of
extracting judgments of relevance and accreditation from the actions of many
individuals, who produce the datum of relevance as byproduct of making their
own purchasing decisions. Amazon also allows users to create topical lists and
track other users as their "friends and favorites." Amazon, like many consumer
sites today, also provides users with the ability [[pg 76]] to rate books they
buy, generating a peer-produced rating by averaging the ratings. More
fundamentally, the core innovation of Google, widely recognized as the most
efficient general search engine during the first half of the 2000s, was to
introduce peer-based judgments of relevance. Like other search engines at the
time, Google used a text-based algorithm to retrieve a given universe of Web
pages initially. Its major innovation was its PageRank algorithm, which
harnesses peer production of ranking in the following way. The engine treats
links from other Web sites pointing to a given Web site as votes of confidence.
Whenever someone who authors a Web site links to someone else's page, that
person has stated quite explicitly that the linked page is worth a visit.
Google's search engine counts these links as distributed votes of confidence in
the quality of the page pointed to. Pages that are heavily linked-to count as
more important votes of confidence. If a highly linked-to site links to a given
page, that vote counts for more than the vote of a site that no one else thinks
is worth visiting. The point to take home from looking at Google and Amazon is
that corporations that have done immensely well at acquiring and retaining
users have harnessed peer production to enable users to find things they want
quickly and efficiently.

The most prominent example of a distributed project self-consciously devoted to
peer production of relevance is the Open Directory Project. The site relies on
more than sixty thousand volunteer editors to determine which links should be
included in the directory. Acceptance as a volunteer requires application.
Quality relies on a peer-review process based substantially on seniority as a
volunteer and level of engagement with the site. The site is hosted and
administered by Netscape, which pays for server space and a small number of
employees to administer the site and set up the initial guidelines. Licensing
is free and presumably adds value partly to America Online's (AOL's) and
Netscape's commercial search engine/portal and partly through goodwill.
Volunteers are not affiliated with Netscape and receive no compensation. They
spend time selecting sites for inclusion in the directory (in small increments
of perhaps fifteen minutes per site reviewed), producing the most
comprehensive, highest-quality human-edited directory of the Web--at this point
outshining the directory produced by the company that pioneered human edited
directories of the Web: Yahoo!.

Perhaps the most elaborate platform for peer production of relevance and
accreditation, at multiple layers, is used by Slashdot. Billed as "News for
Nerds," Slashdot has become a leading technology newsletter on the Web,
coproduced by hundreds of thousands of users. Slashdot primarily consists [[pg
77]] of users commenting on initial submissions that cover a variety of
technology-related topics. The submissions are typically a link to an off-site
story, coupled with commentary from the person who submits the piece. Users
follow up the initial submission with comments that often number in the
hundreds. The initial submissions themselves, and more importantly, the
approach to sifting through the comments of users for relevance and
accreditation, provide a rich example of how this function can be performed on
a distributed, peer-production model.

First, it is important to understand that the function of posting a story from
another site onto Slashdot, the first "utterance" in a chain of comments on
Slashdot, is itself an act of relevance production. The person submitting the
story is telling the community of Slashdot users, "here is a story that `News
for Nerds' readers should be interested in." This initial submission of a link
is itself very coarsely filtered by editors who are paid employees of Open
Source Technology Group (OSTG), which runs a number of similar platforms--like
SourceForge, the most important platform for free software developers. OSTG is
a subsidiary of VA Software, a software services company. The FAQ (Frequently
Asked Question) response to, "how do you verify the accuracy of Slashdot
stories?" is revealing: "We don't. You do. If something seems outrageous, we
might look for some corroboration, but as a rule, we regard this as the
responsibility of the submitter and the audience. This is why it's important to
read comments. You might find something that refutes, or supports, the story in
the main." In other words, Slashdot very self-consciously is organized as a
means of facilitating peer production of accreditation; it is at the comments
stage that the story undergoes its most important form of accreditation--peer
review ex-post.

Filtering and accreditation of comments on Slashdot offer the most interesting
case study of peer production of these functions. Users submit comments that
are displayed together with the initial submission of a story. Think of the
"content" produced in these comments as a cross between academic peer review of
journal submissions and a peer-produced substitute for television's "talking
heads." It is in the means of accrediting and evaluating these comments that
Slashdot's system provides a comprehensive example of peer production of
relevance and accreditation. Slashdot implements an automated system to select
moderators from the pool of users. Moderators are chosen according to several
criteria; they must be logged in (not anonymous), they must be regular users
(who use the site averagely, not one-time page loaders or compulsive users),
they must have been using [[pg 78]] the site for a while (this defeats people
who try to sign up just to moderate), they must be willing, and they must have
positive "karma." Karma is a number assigned to a user that primarily reflects
whether he or she has posted good or bad comments (according to ratings from
other moderators). If a user meets these criteria, the program assigns the user
moderator status and the user gets five "influence points" to review comments.
The moderator rates a comment of his choice using a drop-down list with words
such as "flamebait" and "informative." A positive word increases the rating of
a comment one point and a negative word decreases the rating a point. Each time
a moderator rates a comment, it costs one influence point, so he or she can
only rate five comments for each moderating period. The period lasts for three
days and if the user does not use the influence points, they expire. The
moderation setup is designed to give many users a small amount of power. This
decreases the effect of users with an ax to grind or with poor judgment. The
site also implements some automated "troll filters," which prevent users from
sabotaging the system. Troll filters stop users from posting more than once
every sixty seconds, prevent identical posts, and will ban a user for
twenty-four hours if he or she has been moderated down several times within a
short time frame. Slashdot then provides users with a "threshold" filter that
allows each user to block lower-quality comments. The scheme uses the numerical
rating of the comment (ranging from 1 to 5). Comments start out at 0 for
anonymous posters, 1 for registered users, and 2 for registered users with good
"karma." As a result, if a user sets his or her filter at 1, the user will not
see any comments from anonymous posters unless the comments' ratings were
increased by a moderator. A user can set his or her filter anywhere from 1
(viewing all of the comments) to 5 (where only the posts that have been
upgraded by several moderators will show up).

Relevance, as distinct from accreditation, is also tied into the Slashdot
scheme because off-topic posts should receive an "off topic" rating by the
moderators and sink below the threshold level (assuming the user has the
threshold set above the minimum). However, the moderation system is limited to
choices that sometimes are not mutually exclusive. For instance, a moderator
may have to choose between "funny" ( 1) and "off topic" ( 1) when a post is
both funny and off topic. As a result, an irrelevant post can increase in
ranking and rise above the threshold level because it is funny or informative.
It is unclear, however, whether this is a limitation on relevance, or indeed
mimics our own normal behavior, say in reading a newspaper or browsing a
library, where we might let our eyes linger longer on a funny or [[pg 79]]
informative tidbit, even after we have ascertained that it is not exactly
relevant to what we were looking for.

The primary function of moderation is to provide accreditation. If a user sets
a high threshold level, they will only see posts that are considered of high
quality by the moderators. Users also receive accreditation through their
karma. If their posts consistently receive high ratings, their karma will
increase. At a certain karma level, their comments will start off with a rating
of 2, thereby giving them a louder voice in the sense that users with a
threshold of 2 will now see their posts immediately, and fewer upward
moderations are needed to push their comments even higher. Conversely, a user
with bad karma from consistently poorly rated comments can lose accreditation
by having his or her posts initially start off at 0 or 1. In addition to the
mechanized means of selecting moderators and minimizing their power to skew the
accreditation system, Slashdot implements a system of peer-review accreditation
for the moderators themselves. Slashdot accomplishes this "metamoderation" by
making any user that has an account from the first 90 percent of accounts
created on the system eligible to evaluate the moderators. Each eligible user
who opts to perform metamoderation review is provided with ten random moderator
ratings of comments. The user/metamoderator then rates the moderator's rating
as either unfair, fair, or neither. The metamoderation process affects the
karma of the original moderator, which, when lowered sufficiently by cumulative
judgments of unfair ratings, will remove the moderator from the moderation
system.

Together, these mechanisms allow for distributed production of both relevance
and accreditation. Because there are many moderators who can moderate any given
comment, and thanks to the mechanisms that explicitly limit the power of any
one moderator to overinfluence the aggregate judgment, the system evens out
differences in evaluation by aggregating judgments. It then allows individual
users to determine what level of accreditation pronounced by this aggregate
system fits their particular time and needs by setting their filter to be more
or less inclusive. By introducing "karma," the system also allows users to
build reputation over time, and to gain greater control over the accreditation
of their own work relative to the power of the critics. Users, moderators, and
metamoderators are all volunteers.

The primary point to take from the Slashdot example is that the same dynamic
that we saw used for peer production of initial utterances, or content, can be
implemented to produce relevance and accreditation. Rather than using the
full-time effort of professional accreditation experts, the system [[pg 80]] is
designed to permit the aggregation of many small judgments, each of which
entails a trivial effort for the contributor, regarding both relevance and
accreditation of the materials. The software that mediates the communication
among the collaborating peers embeds both the means to facilitate the
participation and a variety of mechanisms designed to defend the common effort
from poor judgment or defection.

VALUE-ADDED DISTRIBUTION
........................

Finally, when we speak of information or cultural goods that exist (content has
been produced) and are made usable through some relevance and accreditation
mechanisms, there remains the question of distribution. To some extent, this is
a nonissue on the Internet. Distribution is cheap. All one needs is a server
and large pipes connecting one's server to the world. Nonetheless, this segment
of the publication process has also provided us with important examples of peer
production, including one of its earliest examples--Project Gutenberg.

Project Gutenberg entails hundreds of volunteers who scan in and correct books
so that they are freely available in digital form. It has amassed more than
13,000 books, and makes the collection available to everyone for free. The vast
majority of the "e-texts" offered are public domain materials. The site itself
presents the e-texts in ASCII format, the lowest technical common denominator,
but does not discourage volunteers from offering the e-texts in markup
languages. It contains a search engine that allows a reader to search for
typical fields such as subject, author, and title. Project Gutenberg volunteers
can select any book that is in the public domain to transform into an e-text.
The volunteer submits a copy of the title page of the book to Michael Hart--who
founded the project--for copyright research. The volunteer is notified to
proceed if the book passes the copyright clearance. The decision on which book
to convert to e-text is left up to the volunteer, subject to copyright
limitations. Typically, a volunteer converts a book to ASCII format using OCR
(optical character recognition) and proofreads it one time in order to screen
it for major errors. He or she then passes the ASCII file to a volunteer
proofreader. This exchange is orchestrated with very little supervision. The
volunteers use a Listserv mailing list and a bulletin board to initiate and
supervise the exchange. In addition, books are labeled with a version number
indicating how many times they have been proofed. The site encourages
volunteers to select a book that has a low number and proof it. The Project
Gutenberg proofing process is simple. [[pg 81]] Proofreaders (aside from the
first pass) are not expected to have access to the book, but merely review the
e-text for self-evident errors.

Distributed Proofreading, a site originally unaffiliated with Project
Gutenberg, is devoted to proofing Project Gutenberg e-texts more efficiently,
by distributing the volunteer proofreading function in smaller and more
information-rich modules. Charles Franks, a computer programmer from Las Vegas,
decided that he had a more efficient way to proofread these etexts. He built an
interface that allowed volunteers to compare scanned images of original texts
with the e-texts available on Project Gutenberg. In the Distributed
Proofreading process, scanned pages are stored on the site, and volunteers are
shown a scanned page and a page of the e-text simultaneously so that they can
compare the e-text to the original page. Because of the fine-grained
modularity, proofreaders can come on the site and proof one or a few pages and
submit them. By contrast, on the Project Gutenberg site, the entire book is
typically exchanged, or at minimum, a chapter. In this fashion, Distributed
Proofreading clears the proofing of tens of thousands of pages every month.
After a couple of years of working independently, Franks joined forces with
Hart. By late 2004, the site had proofread more than five thousand volumes
using this method.

SHARING OF PROCESSING, STORAGE, AND COMMUNICATIONS PLATFORMS
............................................................

All the examples of peer production that we have seen up to this point have
been examples where individuals pool their time, experience, wisdom, and
creativity to form new information, knowledge, and cultural goods. As we look
around the Internet, however, we find that users also cooperate in similar
loosely affiliated groups, without market signals or managerial commands, to
build supercomputers and massive data storage and retrieval systems. In their
radical decentralization and reliance on social relations and motivations,
these sharing practices are similar to peer production of information,
knowledge, and culture. They differ in one important aspect: Users are not
sharing their innate and acquired human capabilities, and, unlike information,
their inputs and outputs are not public goods. The participants are, instead,
sharing material goods that they privately own, mostly personal computers and
their components. They produce economic, not public, goods--computation,
storage, and communications capacity.

As of the middle of 2004, the fastest supercomputer in the world was SETI@home.
It ran about 75 percent faster than the supercomputer that [[pg 82]] was then
formally known as "the fastest supercomputer in the world": the IBM Blue
Gene/L. And yet, there was and is no single SETI@home computer. Instead, the
SETI@home project has developed software and a collaboration platform that have
enabled millions of participants to pool their computation resources into a
single powerful computer. Every user who participates in the project must
download a small screen saver. When a user's personal computer is idle, the
screen saver starts up, downloads problems for calculation--in SETI@home, these
are radio astronomy signals to be analyzed for regularities--and calculates the
problem it has downloaded. Once the program calculates a solution, it
automatically sends its results to the main site. The cycle continues for as
long as, and repeats every time that, the computer is idle from its user's
perspective. As of the middle of 2004, the project had harnessed the computers
of 4.5 million users, allowing it to run computations at speeds greater than
those achieved by the fastest supercomputers in the world that private firms,
using full-time engineers, developed for the largest and best-funded government
laboratories in the world. SETI@home is the most prominent, but is only one
among dozens of similarly structured Internet-based distributed computing
platforms. Another, whose structure has been the subject of the most extensive
formal analysis by its creators, is Folding@home. As of mid-2004, Folding@home
had amassed contributions of about 840,000 processors contributed by more than
365,000 users.

SETI@home and Folding@home provide a good basis for describing the fairly
common characteristics of Internet-based distributed computation projects.
First, these are noncommercial projects, engaged in pursuits understood as
scientific, for the general good, seeking to harness contributions of
individuals who wish to contribute to such larger-than-themselves goals.
SETI@home helps in the search for extraterrestrial intelligence. Folding@home
helps in protein folding research. Fightaids@home is dedicated to running
models that screen compounds for the likelihood that they will provide good
drug candidates to fight HIV/AIDS. Genome@home is dedicated to modeling
artificial genes that would be created to generate useful proteins. Other
sites, like those dedicated to cryptography or mathematics, have a narrower
appeal, and combine "altruistic" with hobby as their basic motivational appeal.
The absence of money is, in any event, typical of the large majority of active
distributed computing projects. Less than one-fifth of these projects mention
money at all. Most of those that do mention money refer to the contributors'
eligibility for a share of a generally available [[pg 83]] prize for solving a
scientific or mathematical challenge, and mix an appeal to hobby and altruism
with the promise of money. Only two of about sixty projects active in 2004 were
built on a pay-per-contribution basis, and these were quite small-scale by
comparison to many of the others.

Most of the distributed computing projects provide a series of utilities and
statistics intended to allow contributors to attach meaning to their
contributions in a variety of ways. The projects appear to be eclectic in their
implicit social and psychological theories of the motivations for participation
in the projects. Sites describe the scientific purpose of the models and the
specific scientific output, including posting articles that have used the
calculations. In these components, the project organizers seem to assume some
degree of taste for generalized altruism and the pursuit of meaning in
contributing to a common goal. They also implement a variety of mechanisms to
reinforce the sense of purpose, such as providing aggregate statistics about
the total computations performed by the project as a whole. However, the sites
also seem to assume a healthy dose of what is known in the anthropology of gift
literature as agonistic giving--that is, giving intended to show that the
person giving is greater than or more important than others, who gave less. For
example, most of the sites allow individuals to track their own contributions,
and provide "user of the month"-type rankings. An interesting characteristic of
quite a few of these is the ability to create "teams" of users, who in turn
compete on who has provided more cycles or work units. SETI@home in particular
taps into ready-made nationalisms, by offering country-level statistics. Some
of the team names on Folding@home also suggest other, out-of-project bonding
measures, such as national or ethnic bonds (for example, Overclockers Australia
or Alliance Francophone), technical minority status (for example, Linux or
MacAddict4Life), and organizational affiliation (University of Tennessee or
University of Alabama), as well as shared cultural reference points (Knights
who say Ni!). In addition, the sites offer platforms for simple connectedness
and mutual companionship, by offering user fora to discuss the science and the
social participation involved. It is possible that these sites are shooting in
the dark, as far as motivating sharing is concerned. It also possible, however,
that they have tapped into a valuable insight, which is that people behave
sociably and generously for all sorts of different reasons, and that at least
in this domain, adding reasons to participate--some agonistic, some altruistic,
some reciprocity-seeking--does not have a crowding-out effect.

Like distributed computing projects, peer-to-peer file-sharing networks are
[[pg 84]] an excellent example of a highly efficient system for storing and
accessing data in a computer network. These networks of sharing are much less
"mysterious," in terms of understanding the human motivation behind
participation. Nevertheless, they provide important lessons about the extent to
which large-scale collaboration among strangers or loosely affiliated users can
provide effective communications platforms. For fairly obvious reasons, we
usually think of peer-to-peer networks, beginning with Napster, as a "problem."
This is because they were initially overwhelmingly used to perform an act that,
by the analysis of almost any legal scholar, was copyright infringement. To a
significant extent, they are still used in this form. There were, and continue
to be, many arguments about whether the acts of the firms that provided
peer-to-peer software were responsible for the violations. However, there has
been little argument that anyone who allows thousands of other users to make
copies of his or her music files is violating copyright-- hence the public
interpretation of the creation of peer-to-peer networks as primarily a problem.
From the narrow perspective of the law of copyright or of the business model of
the recording industry and Hollywood, this may be an appropriate focus. From
the perspective of diagnosing what is happening to our social and economic
structure, the fact that the files traded on these networks were mostly music
in the first few years of this technology's implementation is little more than
a distraction. Let me explain why.

Imagine for a moment that someone--be it a legislator defining a policy goal or
a businessperson defining a desired service--had stood up in mid1999 and set
the following requirements: "We would like to develop a new music and movie
distribution system. We would like it to store all the music and movies ever
digitized. We would like it to be available from anywhere in the world. We
would like it to be able to serve tens of millions of users at any given
moment." Any person at the time would have predicted that building such a
system would cost tens if not hundreds of millions of dollars; that running it
would require large standing engineering staffs; that managing it so that users
could find what they wanted and not drown in the sea of content would require
some substantial number of "curators"--DJs and movie buffs--and that it would
take at least five to ten years to build. Instead, the system was built cheaply
by a wide range of actors, starting with Shawn Fanning's idea and
implementation of Napster. Once the idea was out, others perfected the idea
further, eliminating the need for even the one centralized feature that Napster
included--a list of who had what files on which computer that provided the
matchmaking function in the Napster [[pg 85]] network. Since then, under the
pressure of suits from the recording industry and a steady and persistent
demand for peer-to-peer music software, rapid successive generations of
Gnutella, and then the FastTrack clients KaZaa and Morpheus, Overnet and
eDonkey, the improvements of BitTorrent, and many others have enhanced the
reliability, coverage, and speed of the peer-to-peer music distribution
system--all under constant threat of litigation, fines, police searches and
even, in some countries, imprisonment of the developers or users of these
networks.

What is truly unique about peer-to-peer networks as a signal of what is to come
is the fact that with ridiculously low financial investment, a few teenagers
and twenty-something-year-olds were able to write software and protocols that
allowed tens of millions of computer users around the world to cooperate in
producing the most efficient and robust file storage and retrieval system in
the world. No major investment was necessary in creating a server farm to store
and make available the vast quantities of data represented by the media files.
The users' computers are themselves the "server farm." No massive investment in
dedicated distribution channels made of high-quality fiber optics was
necessary. The standard Internet connections of users, with some very
intelligent file transfer protocols, sufficed. Architecture oriented toward
enabling users to cooperate with each other in storage, search, retrieval, and
delivery of files was all that was necessary to build a content distribution
network that dwarfed anything that existed before.

Again, there is nothing mysterious about why users participate in peer-to-peer
networks. They want music; they can get it from these networks for free; so
they participate. The broader point to take from looking at peer-to-peer
file-sharing networks, however, is the sheer effectiveness of large-scale
collaboration among individuals once they possess, under their individual
control, the physical capital necessary to make their cooperation effective.
These systems are not "subsidized," in the sense that they do not pay the full
marginal cost of their service. Remember, music, like all information, is a
nonrival public good whose marginal cost, once produced, is zero. Moreover,
digital files are not "taken" from one place in order to be played in the
other. They are replicated wherever they are wanted, and thereby made more
ubiquitous, not scarce. The only actual social cost involved at the time of the
transmission is the storage capacity, communications capacity, and processing
capacity necessary to store, catalog, search, retrieve, and transfer the
information necessary to replicate the files from where copies reside to where
more copies are desired. As with any nonrival good, if Jane is willing [[pg
86]] to spend the actual social costs involved in replicating the music file
that already exists and that Jack possesses, then it is efficient that she do
so without paying the creator a dime. It may throw a monkey wrench into the
particular way in which our society has chosen to pay musicians and recording
executives. This, as we saw in chapter 2, trades off efficiency for longer-term
incentive effects for the recording industry. However, it is efficient within
the normal meaning of the term in economics in a way that it would not have
been had Jane and Jack used subsidized computers or network connections.

As with distributed computing, peer-to-peer file-sharing systems build on the
fact that individual users own vast quantities of excess capacity embedded in
their personal computers. As with distributed computing, peer-to-peer networks
developed architectures that allowed users to share this excess capacity with
each other. By cooperating in these sharing practices, users construct together
systems with capabilities far exceeding those that they could have developed by
themselves, as well as the capabilities that even the best-financed
corporations could provide using techniques that rely on components they fully
owned. The network components owned by any single music delivery service cannot
match the collective storage and retrieval capabilities of the universe of
users' hard drives and network connections. Similarly, the processors arrayed
in the supercomputers find it difficult to compete with the vast computation
resource available on the millions of personal computers connected to the
Internet, and the proprietary software development firms find themselves
competing, and in some areas losing to, the vast pool of programming talent
connected to the Internet in the form of participants in free and open source
software development projects.

In addition to computation and storage, the last major element of computer
communications networks is connectivity. Here, too, perhaps more dramatically
than in either of the two other functionalities, we have seen the development
of sharing-based techniques. The most direct transfer of the design
characteristics of peer-to-peer networks to communications has been the
successful development of Skype--an Internet telephony utility that allows the
owners of computers to have voice conversations with each other over the
Internet for free, and to dial into the public telephone network for a fee. As
of this writing, Skype is already used by more than two million users at any
given moment in time. They use a FastTrack-like architecture to share their
computing and communications resources to create a global [[pg 87]] telephone
system running on top of the Internet. It was created, and is run by, the
developers of KaZaa.

Most dramatically, however, we have seen these techniques emerging in wireless
communications. Throughout almost the entire twentieth century, radio
communications used a single engineering approach to allow multiple messages to
be sent wirelessly in a single geographic area. This approach was to transmit
each of the different simultaneous messages by generating separate
electromagnetic waves for each, which differed from each other by the frequency
of oscillation, or wavelength. The receiver could then separate out the
messages by ignoring all electromagnetic energy received at its antenna unless
it oscillated at the frequency of the desired message. This engineering
technique, adopted by Marconi in 1900, formed the basis of our notion of
"spectrum": the range of frequencies at which we know how to generate
electromagnetic waves with sufficient control and predictability that we can
encode and decode information with them, as well as the notion that there are
"channels" of spectrum that are "used" by a communication. For more than half a
century, radio communications regulation was thought necessary because spectrum
was scarce, and unless regulated, everyone would transmit at all frequencies
causing chaos and an inability to send messages. From 1959, when Ronald Coase
first published his critique of this regulatory approach, until the early
1990s, when spectrum auctions began, the terms of the debate over "spectrum
policy," or wireless communications regulation, revolved around whether the
exclusive right to transmit radio signals in a given geographic area should be
granted as a regulatory license or a tradable property right. In the 1990s,
with the introduction of auctions, we began to see the adoption of a primitive
version of a property-based system through "spectrum auctions." By the early
2000s, this system allowed the new "owners" of these exclusive rights to begin
to shift what were initially purely mobile telephony systems to mobile data
communications as well.

By this time, however, the century-old engineering assumptions that underlay
the regulation-versus-property conceptualization of the possibilities open for
the institutional framework of wireless communications had been rendered
obsolete by new computation and network technologies.[^28] The dramatic decline
in computation cost and improvements in digital signal processing, network
architecture, and antenna systems had fundamentally changed the design space of
wireless communications systems. Instead of having one primary parameter with
which to separate out messages--the [[pg 88]] frequency of oscillation of the
carrier wave--engineers could now use many different mechanisms to allow much
smarter receivers to separate out the message they wanted to receive from all
other sources of electromagnetic radiation in the geographic area they
occupied. Radio transmitters could now transmit at the same frequency,
simultaneously, without "interfering" with each other--that is, without
confusing the receivers as to which radiation carried the required message and
which did not. Just like automobiles that can share a commons-based medium--the
road--and unlike railroad cars, which must use dedicated, owned, and managed
railroad tracks--these new radios could share "the spectrum" as a commons. It
was no longer necessary, or even efficient, to pass laws--be they in the form
of regulations or of exclusive property-like rights--that carved up the usable
spectrum into exclusively controlled slices. Instead, large numbers of
transceivers, owned and operated by end users, could be deployed and use
equipment-embedded protocols to coordinate their communications.

The reasons that owners would share the excess capacity of their new radios are
relatively straightforward in this case. Users want to have wireless
connectivity all the time, to be reachable and immediately available
everywhere. However, they do not actually want to communicate every few
microseconds. They will therefore be willing to purchase and keep turned on
equipment that provides them with such connectivity. Manufacturers, in turn,
will develop and adhere to standards that will improve capacity and
connectivity. As a matter of engineering, what has been called "cooperation
gain"--the improved quality of the system gained when the nodes cooperate--is
the most promising source of capacity scaling for distributed wireless
systems.[^29] Cooperation gain is easy to understand from day-to-day
interactions. When we sit in a lecture and miss a word or two, we might turn to
a neighbor and ask, "Did you hear what she said?" In radio systems, this kind
of cooperation among the antennae (just like the ears) of neighbors is called
antenna diversity, and is the basis for the design of a number of systems to
improve reception. We might stand in a loud crowd without being able to shout
or walk over to the other end of the room, but ask a friend: "If you see so and
so, tell him x"; that friend then bumps into a friend of so and so and tells
that person: "If you see so and so, tell him x"; and so forth. When we do this,
we are using what in radio engineering is called repeater networks. These kinds
of cooperative systems can carry much higher loads without interference,
sharing wide swaths of spectrum, [[pg 89]] in ways that are more efficient than
systems that rely on explicit market transactions based on property in the
right to emit power in discrete frequencies. The design of such "ad hoc mesh
networks"--that is, networks of radios that can configure themselves into
cooperative networks as need arises, and help each other forward messages and
decipher incoming messages over the din of radio emissions--are the most
dynamic area in radio engineering today.

This technological shift gave rise to the fastest-growing sector in the
wireless communications arena in the first few years of the twenty-first
century-- WiFi and similar unlicensed wireless devices. The economic success of
the equipment market that utilizes the few primitive "spectrum commons"
available in the United States--originally intended for low-power devices like
garage openers and the spurious emissions of microwave ovens--led toward at
first slow, and more recently quite dramatic, change in U.S. wireless policy.
In the past two years alone, what have been called "commons-based" approaches
to wireless communications policy have come to be seen as a legitimate, indeed
a central, component of the Federal Communication Commission's (FCC's) wireless
policy.[^30] We are beginning to see in this space the most prominent example
of a system that was entirely oriented toward regulation aimed at improving the
institutional conditions of marketbased production of wireless transport
capacity sold as a finished good (connectivity minutes), shifting toward
enabling the emergence of a market in shareable goods (smart radios) designed
to provision transport on a sharing model.

I hope these detailed examples provide a common set of mental pictures of what
peer production looks like. In the next chapter I explain the economics of peer
production of information and the sharing of material resources for
computation, communications, and storage in particular, and of nonmarket,
social production more generally: why it is efficient, how we can explain the
motivations that lead people to participate in these great enterprises of
nonmarket cooperation, and why we see so much more of it online than we do
off-line. The moral and political discussion throughout the remainder of the
book does not, however, depend on your accepting the particular analysis I
offer in chapter 4 to "domesticate" these phenomena within more or less
standard economics. At this point, it is important that the stories have
provided a texture for, and established the plausibility of, [[pg 90]] the
claim that nonmarket production in general and peer production in particular
are phenomena of much wider application than free software, and exist in
important ways throughout the networked information economy. For purposes of
understanding the political implications that occupy most of this book, that is
all that is necessary. [[pg 91]]


----------------------------------------
CHAPTER 4 - THE ECONOMICS OF SOCIAL PRODUCTION
----------------------------------------------

The increasing salience of nonmarket production in general, and peer production
in particular, raises three puzzles from an economics perspective. First, why
do people participate? What is their motivation when they work for or
contribute resources to a project for which they are not paid or directly
rewarded? Second, why now, why here? What, if anything, is special about the
digitally networked environment that would lead us to believe that peer
production is here to stay as an important economic phenomenon, as opposed to a
fad that will pass as the medium matures and patterns of behavior settle toward
those more familiar to us from the economy of steel, coal, and temp agencies.
Third, is it efficient to have all these people sharing their computers and
donating their time and creative effort? Moving through the answers to these
questions, it becomes clear that the diverse and complex patterns of behavior
observed on the Internet, from Viking ship hobbyists to the developers of the
GNU/ Linux operating system, are perfectly consistent with much of our
contemporary understanding of human economic behavior. We need to assume no
fundamental change in the nature of humanity; [[pg 92]] we need not declare the
end of economics as we know it. We merely need to see that the material
conditions of production in the networked information economy have changed in
ways that increase the relative salience of social sharing and exchange as a
modality of economic production. That is, behaviors and motivation patterns
familiar to us from social relations generally continue to cohere in their own
patterns. What has changed is that now these patterns of behavior have become
effective beyond the domains of building social relations of mutual interest
and fulfilling our emotional and psychological needs of companionship and
mutual recognition. They have come to play a substantial role as modes of
motivating, informing, and organizing productive behavior at the very core of
the information economy. And it is this increasing role as a modality of
information production that ripples through the rest this book. It is the
feasibility of producing information, knowledge, and culture through social,
rather than market and proprietary relations--through cooperative peer
production and coordinate individual action--that creates the opportunities for
greater autonomous action, a more critical culture, a more discursively engaged
and better informed republic, and perhaps a more equitable global community.

MOTIVATION
..........

Much of economics achieves analytic tractability by adopting a very simple
model of human motivation. The basic assumption is that all human motivations
can be more or less reduced to something like positive and negative
utilities--things people want, and things people want to avoid. These are
capable of being summed, and are usually translatable into a universal medium
of exchange, like money. Adding more of something people want, like money, to
any given interaction will, all things considered, make that interaction more
desirable to rational people. While simplistic, this highly tractable model of
human motivation has enabled policy prescriptions that have proven far more
productive than prescriptions that depended on other models of human
motivation--such as assuming that benign administrators will be motivated to
serve their people, or that individuals will undertake self-sacrifice for the
good of the nation or the commune.

Of course, this simple model underlying much of contemporary economics is
wrong. At least it is wrong as a universal description of human motivation. If
you leave a fifty-dollar check on the table at the end of a dinner party at a
friend's house, you do not increase the probability that you will [[pg 93]] be
invited again. We live our lives in diverse social frames, and money has a
complex relationship with these--sometimes it adds to the motivation to
participate, sometimes it detracts from it. While this is probably a trivial
observation outside of the field of economics, it is quite radical within that
analytic framework. The present generation's efforts to formalize and engage it
began with the Titmuss-Arrow debate of the early 1970s. In a major work,
Richard Titmuss compared the U.S. and British blood supply systems. The former
was largely commercial at the time, organized by a mix of private for-profit
and nonprofit actors; the latter entirely voluntary and organized by the
National Health Service. Titmuss found that the British system had
higher-quality blood (as measured by the likelihood of recipients contracting
hepatitis from transfusions), less blood waste, and fewer blood shortages at
hospitals. Titmuss also attacked the U.S. system as inequitable, arguing that
the rich exploited the poor and desperate by buying their blood. He concluded
that an altruistic blood procurement system is both more ethical and more
efficient than a market system, and recommended that the market be kept out of
blood donation to protect the "right to give."[^31] Titmuss's argument came
under immediate attack from economists. Most relevant for our purposes here,
Kenneth Arrow agreed that the differences in blood quality indicated that the
U.S. blood system was flawed, but rejected Titmuss's central theoretical claim
that markets reduce donative activity. Arrow reported the alternative
hypothesis held by "economists typically," that if some people respond to
exhortation/moral incentives (donors), while others respond to prices and
market incentives (sellers), these two groups likely behave
independently--neither responds to the other's incentives. Thus, the decision
to allow or ban markets should have no effect on donative behavior. Removing a
market could, however, remove incentives of the "bad blood" suppliers to sell
blood, thereby improving the overall quality of the blood supply. Titmuss had
not established his hypothesis analytically, Arrow argued, and its proof or
refutation would lie in empirical study.[^32] Theoretical differences aside,
the U.S. blood supply system did in fact transition to an allvolunteer system
of social donation since the 1970s. In surveys since, blood donors have
reported that they "enjoy helping" others, experienced a sense of moral
obligation or responsibility, or exhibited characteristics of reciprocators
after they or their relatives received blood.

A number of scholars, primarily in psychology and economics, have attempted to
resolve this question both empirically and theoretically. The most systematic
work within economics is that of Swiss economist Bruno Frey [[pg 94]] and
various collaborators, building on the work of psychologist Edward Deci.[^33] A
simple statement of this model is that individuals have intrinsic and extrinsic
motivations. Extrinsic motivations are imposed on individuals from the outside.
They take the form of either offers of money for, or prices imposed on,
behavior, or threats of punishment or reward from a manager or a judge for
complying with, or failing to comply with, specifically prescribed behavior.
Intrinsic motivations are reasons for action that come from within the person,
such as pleasure or personal satisfaction. Extrinsic motivations are said to
"crowd out" intrinsic motivations because they (a) impair
self-determination--that is, people feel pressured by an external force, and
therefore feel overjustified in maintaining their intrinsic motivation rather
than complying with the will of the source of the extrinsic reward; or (b)
impair self-esteem--they cause individuals to feel that their internal
motivation is rejected, not valued, and as a result, their self-esteem is
diminished, causing them to reduce effort. Intuitively, this model relies on
there being a culturally contingent notion of what one "ought" to do if one is
a welladjusted human being and member of a decent society. Being offered money
to do something you know you "ought" to do, and that self-respecting members of
society usually in fact do, implies that the person offering the money believes
that you are not a well-adjusted human being or an equally respectable member
of society. This causes the person offered the money either to believe the
offerer, and thereby lose self-esteem and reduce effort, or to resent him and
resist the offer. A similar causal explanation is formalized by Roland Benabou
and Jean Tirole, who claim that the person receiving the monetary incentives
infers that the person offering the compensation does not trust the offeree to
do the right thing, or to do it well of their own accord. The offeree's
self-confidence and intrinsic motivation to succeed are reduced to the extent
that the offeree believes that the offerer--a manager or parent, for
example--is better situated to judge the offeree's abilities.[^34]

More powerful than the theoretical literature is the substantial empirical
literature--including field and laboratory experiments, econometrics, and
surveys--that has developed since the mid-1990s to test the hypotheses of this
model of human motivation. Across many different settings, researchers have
found substantial evidence that, under some circumstances, adding money for an
activity previously undertaken without price compensation reduces, rather than
increases, the level of activity. The work has covered contexts as diverse as
the willingness of employees to work more or to share their experience and
knowledge with team members, of communities to [[pg 95]] accept locally
undesirable land uses, or of parents to pick up children from day-care centers
punctually.[^35] The results of this empirical literature strongly suggest that
across various domains some displacement or crowding out can be identified
between monetary rewards and nonmonetary motivations. This does not mean that
offering monetary incentives does not increase extrinsic rewards--it does.
Where extrinsic rewards dominate, this will increase the activity rewarded as
usually predicted in economics. However, the effect on intrinsic motivation, at
least sometimes, operates in the opposite direction. Where intrinsic motivation
is an important factor because pricing and contracting are difficult to
achieve, or because the payment that can be offered is relatively low, the
aggregate effect may be negative. Persuading experienced employees to
communicate their tacit knowledge to the teams they work with is a good example
of the type of behavior that is very hard to specify for efficient pricing, and
therefore occurs more effectively through social motivations for teamwork than
through payments. Negative effects of small payments on participation in work
that was otherwise volunteer-based are an example of low payments recruiting
relatively few people, but making others shift their efforts elsewhere and
thereby reducing, rather than increasing, the total level of volunteering for
the job.

The psychology-based alternative to the "more money for an activity will mean
more of the activity" assumption implicit in most of these new economic models
is complemented by a sociology-based alternative. This comes from one branch of
the social capital literature--the branch that relates back to Mark
Granovetter's 1974 book, Getting a Job, and was initiated as a crossover from
sociology to economics by James Coleman.[^36] This line of literature rests on
the claim that, as Nan Lin puts it, "there are two ultimate (or primitive)
rewards for human beings in a social structure: economic standing and social
standing."[^37] These rewards are understood as instrumental and, in this
regard, are highly amenable to economics. Both economic and social aspects
represent "standing"--that is, a relational measure expressed in terms of one's
capacity to mobilize resources. Some resources can be mobilized by money.
Social relations can mobilize others. For a wide range of reasons--
institutional, cultural, and possibly technological--some resources are more
readily capable of being mobilized by social relations than by money. If you
want to get your nephew a job at a law firm in the United States today, a
friendly relationship with the firm's hiring partner is more likely to help
than passing on an envelope full of cash. If this theory of social capital is
correct, then sometimes you should be willing to trade off financial rewards
for social [[pg 96]] capital. Critically, the two are not fungible or
cumulative. A hiring partner paid in an economy where monetary bribes for job
interviews are standard does not acquire a social obligation. That same hiring
partner in that same culture, who is also a friend and therefore forgoes
payment, however, probably does acquire a social obligation, tenable for a
similar social situation in the future. The magnitude of the social debt,
however, may now be smaller. It is likely measured by the amount of money saved
from not having to pay the price, not by the value of getting the nephew a job,
as it would likely be in an economy where jobs cannot be had for bribes. There
are things and behaviors, then, that simply cannot be commodified for market
exchange, like friendship. Any effort to mix the two, to pay for one's
friendship, would render it something completely different--perhaps a
psychoanalysis session in our culture. There are things that, even if
commodified, can still be used for social exchange, but the meaning of the
social exchange would be diminished. One thinks of borrowing eggs from a
neighbor, or lending a hand to friends who are moving their furniture to a new
apartment. And there are things that, even when commodified, continue to be
available for social exchange with its full force. Consider gamete donations as
an example in contemporary American culture. It is important to see, though,
that there is nothing intrinsic about any given "thing" or behavior that makes
it fall into one or another of these categories. The categories are culturally
contingent and cross-culturally diverse. What matters for our purposes here,
though, is only the realization that for any given culture, there will be some
acts that a person would prefer to perform not for money, but for social
standing, recognition, and probably, ultimately, instrumental value obtainable
only if that person has performed the action through a social, rather than a
market, transaction.

It is not necessary to pin down precisely the correct or most complete theory
of motivation, or the full extent and dimensions of crowding out nonmarket
rewards by the introduction or use of market rewards. All that is required to
outline the framework for analysis is recognition that there is some form of
social and psychological motivation that is neither fungible with money nor
simply cumulative with it. Transacting within the price system may either
increase or decrease the social-psychological rewards (be they intrinsic or
extrinsic, functional or symbolic). The intuition is simple. As I have already
said, leaving a fifty-dollar check on the table after one has finished a
pleasant dinner at a friend's house would not increase the host's [[pg 97]]
social and psychological gains from the evening. Most likely, it would diminish
them sufficiently that one would never again be invited. A bottle of wine or a
bouquet of flowers would, to the contrary, improve the social gains. And if
dinner is not intuitively obvious, think of sex. The point is simple.
Money-oriented motivations are different from socially oriented motivations.
Sometimes they align. Sometimes they collide. Which of the two will be the case
is historically and culturally contingent. The presence of money in sports or
entertainment reduced the social psychological gains from performance in
late-nineteenth-century Victorian England, at least for members of the middle
and upper classes. This is reflected in the long-standing insistence on the
"amateur" status of the Olympics, or the status of "actors" in the Victorian
society. This has changed dramatically more than a century later, where
athletes' and popular entertainers' social standing is practically measured in
the millions of dollars their performances can command.

The relative relationships of money and social-psychological rewards are, then,
dependent on culture and context. Similar actions may have different meanings
in different social or cultural contexts. Consider three lawyers contemplating
whether to write a paper presenting their opinion--one is a practicing
attorney, the second is a judge, and the third is an academic. For the first,
money and honor are often, though not always, positively correlated. Being able
to command a very high hourly fee for writing the requested paper is a mode of
expressing one's standing in the profession, as well as a means of putting
caviar on the table. Yet, there are modes of acquiring esteem--like writing the
paper as a report for a bar committee-- that are not improved by the presence
of money, and are in fact undermined by it. This latter effect is sharpest for
the judge. If a judge is approached with an offer of money for writing an
opinion, not only is this not a mark of honor, it is a subversion of the social
role and would render corrupt the writing of the opinion. For the judge, the
intrinsic "rewards" for writing the opinion when matched by a payment for the
product would be guilt and shame, and the offer therefore an expression of
disrespect. Finally, if the same paper is requested of the academic, the
presence of money is located somewhere in between the judge and the
practitioner. To a high degree, like the judge, the academic who writes for
money is rendered suspect in her community of scholarship. A paper clearly
funded by a party, whose results support the party's regulatory or litigation
position, is practically worthless as an academic work. In a mirror image of
the practitioner, however, there [[pg 98]] are some forms of money that add to
and reinforce an academic's social psychological rewards--peer-reviewed grants
and prizes most prominent among them.

Moreover, individuals are not monolithic agents. While it is possible to posit
idealized avaricious money-grubbers, altruistic saints, or social climbers, the
reality of most people is a composite of these all, and one that is not like
any of them. Clearly, some people are more focused on making money, and others
are more generous; some more driven by social standing and esteem, others by a
psychological sense of well-being. The for-profit and nonprofit systems
probably draw people with different tastes for these desiderata. Academic
science and commercial science also probably draw scientists with similar
training but different tastes for types of rewards. However, welladjusted,
healthy individuals are rarely monolithic in their requirements. We would
normally think of someone who chose to ignore and betray friends and family to
obtain either more money or greater social recognition as a fetishist of some
form or another. We spend some of our time making money, some of our time
enjoying it hedonically; some of our time being with and helping family,
friends, and neighbors; some of our time creatively expressing ourselves,
exploring who we are and what we would like to become. Some of us, because of
economic conditions we occupy, or because of our tastes, spend very large
amounts of time trying to make money-- whether to become rich or, more
commonly, just to make ends meet. Others spend more time volunteering,
chatting, or writing.

For all of us, there comes a time on any given day, week, and month, every year
and in different degrees over our lifetimes, when we choose to act in some way
that is oriented toward fulfilling our social and psychological needs, not our
market-exchangeable needs. It is that part of our lives and our motivational
structure that social production taps, and on which it thrives. There is
nothing mysterious about this. It is evident to any of us who rush home to our
family or to a restaurant or bar with friends at the end of a workday, rather
than staying on for another hour of overtime or to increase our billable hours;
or at least regret it when we cannot. It is evident to any of us who has ever
brought a cup of tea to a sick friend or relative, or received one; to anyone
who has lent a hand moving a friend's belongings; played a game; told a joke,
or enjoyed one told by a friend. What needs to be understood now, however, is
under what conditions these many and diverse social actions can turn into an
important modality of economic production. When can all these acts, distinct
from our desire for [[pg 99]] money and motivated by social and psychological
needs, be mobilized, directed, and made effective in ways that we recognize as
economically valuable?

SOCIAL PRODUCTION: FEASIBILITY CONDITIONS AND ORGANIZATIONAL FORM
.................................................................

The core technologically contingent fact that enables social relations to
become a salient modality of production in the networked information economy is
that all the inputs necessary to effective productive activity are under the
control of individual users. Human creativity, wisdom, and life experience are
all possessed uniquely by individuals. The computer processors, data storage
devices, and communications capacity necessary to make new meaningful
conversational moves from the existing universe of information and stimuli, and
to render and communicate them to others near and far are also under the
control of these same individual users--at least in the advanced economies and
in some portions of the population of developing economies. This does not mean
that all the physical capital necessary to process, store, and communicate
information is under individual user control. That is not necessary. It is,
rather, that the majority of individuals in these societies have the threshold
level of material capacity required to explore the information environment they
occupy, to take from it, and to make their own contributions to it.

There is nothing about computation or communication that naturally or
necessarily enables this fact. It is a felicitous happenstance of the
fabrication technology of computing machines in the last quarter of the
twentieth century, and, it seems, in the reasonably foreseeable future. It is
cheaper to build freestanding computers that enable their owners to use a wide
and dynamically changing range of information applications, and that are cheap
enough that each machine is owned by an individual user or household, than it
is to build massive supercomputers with incredibly high-speed communications to
yet cheaper simple terminals, and to sell information services to individuals
on an on-demand or standardized package model. Natural or contingent, it is
nevertheless a fact of the industrial base of the networked information economy
that individual users--susceptible as they are to acting on diverse
motivations, in diverse relationships, some market-based, some social--possess
and control the physical capital necessary to make effective the human
capacities they uniquely and individually possess. [[pg 100]]

Now, having the core inputs of information production ubiquitously distributed
in society is a core enabling fact, but it alone cannot assure that social
production will become economically significant. Children and teenagers,
retirees, and very rich individuals can spend most of their lives socializing
or volunteering; most other people cannot. While creative capacity and judgment
are universally distributed in a population, available time and attention are
not, and human creative capacity cannot be fully dedicated to nonmarket,
nonproprietary production all the time. Someone needs to work for money, at
least some of the time, to pay the rent and put food on the table. Personal
computers too are only used for earnings-generating activities some of the
time. In both these resources, there remain large quantities of excess
capacity--time and interest in human beings; processing, storage, and
communications capacity in computers--available to be used for activities whose
rewards are not monetary or monetizable, directly or indirectly.

For this excess capacity to be harnessed and become effective, the information
production process must effectively integrate widely dispersed contributions,
from many individual human beings and machines. These contributions are diverse
in their quality, quantity, and focus, in their timing and geographic location.
The great success of the Internet generally, and peer-production processes in
particular, has been the adoption of technical and organizational architectures
that have allowed them to pool such diverse efforts effectively. The core
characteristics underlying the success of these enterprises are their
modularity and their capacity to integrate many finegrained contributions.

"Modularity" is a property of a project that describes the extent to which it
can be broken down into smaller components, or modules, that can be
independently produced before they are assembled into a whole. If modules are
independent, individual contributors can choose what and when to contribute
independently of each other. This maximizes their autonomy and flexibility to
define the nature, extent, and timing of their participation in the project.
Breaking up the maps of Mars involved in the clickworkers project (described in
chapter 3) and rendering them in small segments with a simple marking tool is a
way of modularizing the task of mapping craters. In the SETI@home project (see
chapter 3), the task of scanning radio astronomy signals is broken down into
millions of little computations as a way of modularizing the calculations
involved.

"Granularity" refers to the size of the modules, in terms of the time and
effort that an individual must invest in producing them. The five minutes [[pg
101]] required for moderating a comment on Slashdot, or for metamoderating a
moderator, is more fine-grained than the hours necessary to participate in
writing a bug fix in an open-source project. More people can participate in the
former than in the latter, independent of the differences in the knowledge
required for participation. The number of people who can, in principle,
participate in a project is therefore inversely related to the size of the
smallest-scale contribution necessary to produce a usable module. The
granularity of the modules therefore sets the smallest possible individual
investment necessary to participate in a project. If this investment is
sufficiently low, then "incentives" for producing that component of a modular
project can be of trivial magnitude. Most importantly for our purposes of
understanding the rising role of nonmarket production, the time can be drawn
from the excess time we normally dedicate to having fun and participating in
social interactions. If the finest-grained contributions are relatively large
and would require a large investment of time and effort, the universe of
potential contributors decreases. A successful large-scale peer-production
project must therefore have a predominate portion of its modules be relatively
fine-grained.

Perhaps the clearest example of how large-grained modules can make projects
falter is the condition, as of the middle of 2005, of efforts to peer produce
open textbooks. The largest such effort is Wikibooks, a site associated with
/Wikipedia/, which has not taken off as did its famous parent project. Very few
texts there have reached maturity to the extent that they could be usable as a
partial textbook, and those few that have were largely written by one
individual with minor contributions by others. Similarly, an ambitious
initiative launched in California in 2004 still had not gone far beyond an
impassioned plea for help by mid-2005. The project that seems most successful
as of 2005 was a South African project, Free High School Science Texts (FHSST),
founded by a physics graduate student, Mark Horner. As of this writing, that
three-year-old project had more or less completed a physics text, and was about
halfway through chemistry and mathematics textbooks. The whole FHSST project
involves a substantially more managed approach than is common in
peer-production efforts, with a core group of dedicated graduate student
administrators recruiting contributors, assigning tasks, and integrating the
contributions. Horner suggests that the basic limiting factor is that in order
to write a high school textbook, the output must comply with state-imposed
guidelines for content and form. To achieve these requirements, the various
modules must cohere to a degree [[pg 102]] much larger than necessary in a
project like /Wikipedia/, which can endure high diversity in style and
development without losing its utility. As a result, the individual
contributions have been kept at a high level of abstraction-- an idea or
principle explained at a time. The minimal time commitment required of each
contributor is therefore large, and has led many of those who volunteered
initially to not complete their contributions. In this case, the guideline
requirements constrained the project's granularity, and thereby impeded its
ability to grow and capture the necessary thousands of smallgrained
contributions. With orders of magnitude fewer contributors, each must be much
more highly motivated and available than is necessary in /Wikipedia/, Slashdot,
and similar successful projects.

It is not necessary, however, that each and every chunk or module be fine
grained. Free software projects in particular have shown us that successful
peer-production projects may also be structured, technically and culturally, in
ways that make it possible for different individuals to contribute vastly
different levels of effort commensurate with their ability, motivation, and
availability. The large free software projects might integrate thousands of
people who are acting primarily for social psychological reasons--because it is
fun or cool; a few hundred young programmers aiming to make a name for
themselves so as to become employable; and dozens of programmers who are paid
to write free software by firms that follow one of the nonproprietary
strategies described in chapter 2. IBM and Red Hat are the quintessential
examples of firms that contribute paid employee time to peer-production
projects in this form. This form of link between a commercial firm and a peer
production community is by no means necessary for a peer-production process to
succeed; it does, however, provide one constructive interface between market-
and nonmarket-motivated behavior, through which actions on the two types of
motivation can reinforce, rather than undermine, each other.

The characteristics of planned modularization of a problem are highly visible
and explicit in some peer-production projects--the distributed computing
projects like SETI@home are particularly good examples of this. However, if we
were to step back and look at the entire phenomenon of Web-based publication
from a bird's-eye view, we would see that the architecture of the World Wide
Web, in particular the persistence of personal Web pages and blogs and their
self-contained, technical independence of each other, give the Web as a whole
the characteristics of modularity and variable but fine-grained granularity.
Imagine that you were trying to evaluate [[pg 103]] how, if at all, the Web is
performing the task of media watchdog. Consider one example, which I return to
in chapter 7: The Memory Hole, a Web site created and maintained by Russ Kick,
a freelance author and editor. Kick spent some number of hours preparing and
filing a Freedom of Information Act request with the Defense Department,
seeking photographs of coffins of U.S. military personnel killed in Iraq. He
was able to do so over some period, not having to rely on "getting the scoop"
to earn his dinner. At the same time, tens of thousands of other individual Web
publishers and bloggers were similarly spending their time hunting down stories
that moved them, or that they happened to stumble across in their own daily
lives. When Kick eventually got the photographs, he could upload them onto his
Web site, where they were immediately available for anyone to see. Because each
contribution like Kick's can be independently created and stored, because no
single permission point or failure point is present in the architecture of the
Web--it is merely a way of conveniently labeling documents stored independently
by many people who are connected to the Internet and use HTML (hypertext markup
language) and HTTP (hypertext transfer protocol)--as an "information service,"
it is highly modular and diversely granular. Each independent contribution
comprises as large or small an investment as its owner-operator chooses to
make. Together, they form a vast almanac, trivia trove, and news and commentary
facility, to name but a few, produced by millions of people at their
leisure--whenever they can or want to, about whatever they want.

The independence of Web sites is what marks their major difference from more
organized peer-production processes, where contributions are marked not by
their independence but by their interdependence. The Web as a whole requires no
formal structure of cooperation. As an "information good" or medium, it emerges
as a pattern out of coordinate coexistence of millions of entirely independent
acts. All it requires is a pattern recognition utility superimposed over the
outputs of these acts--a search engine or directory. Peer-production processes,
to the contrary, do generally require some substantive cooperation among users.
A single rating of an individual comment on Slashdot does not by itself
moderate the comment up or down, neither does an individual marking of a
crater. Spotting a bug in free software, proposing a fix, reviewing the
proposed fix, and integrating it into the software are interdependent acts that
require a level of cooperation. This necessity for cooperation requires
peer-production processes to adopt more engaged strategies for assuring that
everyone who participates is doing so in [[pg 104]] good faith, competently,
and in ways that do not undermine the whole, and weeding out those would-be
participants who are not.

Cooperation in peer-production processes is usually maintained by some
combination of technical architecture, social norms, legal rules, and a
technically backed hierarchy that is validated by social norms. /Wikipedia/ is
the strongest example of a discourse-centric model of cooperation based on
social norms. However, even /Wikipedia/ includes, ultimately, a small number of
people with system administrator privileges who can eliminate accounts or block
users in the event that someone is being genuinely obstructionist. This
technical fallback, however, appears only after substantial play has been given
to self-policing by participants, and to informal and quasi-formal
communitybased dispute resolution mechanisms. Slashdot, by contrast, provides a
strong model of a sophisticated technical system intended to assure that no one
can "defect" from the cooperative enterprise of commenting and moderating
comments. It limits behavior enabled by the system to avoid destructive
behavior before it happens, rather than policing it after the fact. The Slash
code does this by technically limiting the power any given person has to
moderate anyone else up or down, and by making every moderator the subject of a
peer review system whose judgments are enforced technically-- that is, when any
given user is described by a sufficiently large number of other users as
unfair, that user automatically loses the technical ability to moderate the
comments of others. The system itself is a free software project, licensed
under the GPL (General Public License)--which is itself the quintessential
example of how law is used to prevent some types of defection from the common
enterprise of peer production of software. The particular type of defection
that the GPL protects against is appropriation of the joint product by any
single individual or firm, the risk of which would make it less attractive for
anyone to contribute to the project to begin with. The GPL assures that, as a
legal matter, no one who contributes to a free software project need worry that
some other contributor will take the project and make it exclusively their own.
The ultimate quality judgments regarding what is incorporated into the "formal"
releases of free software projects provide the clearest example of the extent
to which a meritocratic hierarchy can be used to integrate diverse
contributions into a finished single product. In the case of the Linux kernel
development project (see chapter 3), it was always within the power of Linus
Torvalds, who initiated the project, to decide which contributions should be
included in a new release, and which should not. But it is a funny sort of
hierarchy, whose quirkiness Steve Weber [[pg 105]] well explicates.[^38]
Torvalds's authority is persuasive, not legal or technical, and certainly not
determinative. He can do nothing except persuade others to prevent them from
developing anything they want and add it to their kernel, or to distribute that
alternative version of the kernel. There is nothing he can do to prevent the
entire community of users, or some subsection of it, from rejecting his
judgment about what ought to be included in the kernel. Anyone is legally free
to do as they please. So these projects are based on a hierarchy of
meritocratic respect, on social norms, and, to a great extent, on the mutual
recognition by most players in this game that it is to everybody's advantage to
have someone overlay a peer review system with some leadership.

In combination then, three characteristics make possible the emergence of
information production that is not based on exclusive proprietary claims, not
aimed toward sales in a market for either motivation or information, and not
organized around property and contract claims to form firms or market
exchanges. First, the physical machinery necessary to participate in
information and cultural production is almost universally distributed in the
population of the advanced economies. Certainly, personal computers as capital
goods are under the control of numbers of individuals that are orders of
magnitude larger than the number of parties controlling the use of
massproduction-capable printing presses, broadcast transmitters, satellites, or
cable systems, record manufacturing and distribution chains, and film studios
and distribution systems. This means that the physical machinery can be put in
service and deployed in response to any one of the diverse motivations
individual human beings experience. They need not be deployed in order to
maximize returns on the financial capital, because financial capital need not
be mobilized to acquire and put in service any of the large capital goods
typical of the industrial information economy. Second, the primary raw
materials in the information economy, unlike the industrial economy, are public
goods--existing information, knowledge, and culture. Their actual marginal
social cost is zero. Unless regulatory policy makes them purposefully expensive
in order to sustain the proprietary business models, acquiring raw materials
also requires no financial capital outlay. Again, this means that these raw
materials can be deployed for any human motivation. They need not maximize
financial returns. Third, the technical architectures, organizational models,
and social dynamics of information production and exchange on the Internet have
developed so that they allow us to structure the solution to problems--in
particular to information production problems--in ways [[pg 106]] that are
highly modular. This allows many diversely motivated people to act for a wide
range of reasons that, in combination, cohere into new useful information,
knowledge, and cultural goods. These architectures and organizational models
allow both independent creation that coexists and coheres into usable patterns,
and interdependent cooperative enterprises in the form of peer-production
processes.

Together, these three characteristics suggest that the patterns of social
production of information that we are observing in the digitally networked
environment are not a fad. They are, rather, a sustainable pattern of human
production given the characteristics of the networked information economy. The
diversity of human motivation is nothing new. We now have a substantial
literature documenting its importance in free and open-source software
development projects, from Josh Lerner and Jean Tirole, Rishab Ghosh, Eric Von
Hippel and Karim Lakhani, and others. Neither is the public goods nature of
information new. What is new are the technological conditions that allow these
facts to provide the ingredients of a much larger role in the networked
information economy for nonmarket, nonproprietary production to emerge. As long
as capitalization and ownership of the physical capital base of this economy
remain widely distributed and as long as regulatory policy does not make
information inputs artificially expensive, individuals will be able to deploy
their own creativity, wisdom, conversational capacities, and connected
computers, both independently and in loose interdependent cooperation with
others, to create a substantial portion of the information environment we
occupy. Moreover, we will be able to do so for whatever reason we
choose--through markets or firms to feed and clothe ourselves, or through
social relations and open communication with others, to give our lives meaning
and context.

TRANSACTION COSTS AND EFFICIENCY
................................

For purposes of analyzing the political values that are the concern of most of
this book, all that is necessary is that we accept that peer production in
particular, and nonmarket information production and exchange in general, are
sustainable in the networked information economy. Most of the remainder of the
book seeks to evaluate why, and to what extent, the presence of a substantial
nonmarket, commons-based sector in the information production system is
desirable from the perspective of various aspects of freedom and justice.
Whether this sector is "efficient" within the meaning of the [[pg 107]] word in
welfare economics is beside the point to most of these considerations. Even a
strong commitment to a pragmatic political theory, one that accepts and
incorporates into its consideration the limits imposed by material and economic
reality, need not aim for "efficient" policy in the welfare sense. It is
sufficient that the policy is economically and socially sustainable on its own
bottom--in other words, that it does not require constant subsidization at the
expense of some other area excluded from the analysis. It is nonetheless
worthwhile spending a few pages explaining why, and under what conditions,
commons-based peer production, and social production more generally, are not
only sustainable but actually efficient ways of organizing information
production.

The efficient allocation of two scarce resources and one public good are at
stake in the choice between social production--whether it is peer production or
independent nonmarket production--and market-based production. Because most of
the outputs of these processes are nonrival goods-- information, knowledge, and
culture--the fact that the social production system releases them freely,
without extracting a price for using them, means that it would, all other
things being equal, be more efficient for information to be produced on a
nonproprietary social model, rather than on a proprietary market model. Indeed,
all other things need not even be equal for this to hold. It is enough that the
net value of the information produced by commons-based social production
processes and released freely for anyone to use as they please is no less than
the total value of information produced through property-based systems minus
the deadweight loss caused by the above-marginal-cost pricing practices that
are the intended result of the intellectual property system.

The two scarce resources are: first, human creativity, time, and attention; and
second, the computation and communications resources used in information
production and exchange. In both cases, the primary reason to choose among
proprietary and nonproprietary strategies, between marketbased systems--be they
direct market exchange or firm-based hierarchical production--and social
systems, are the comparative transaction costs of each, and the extent to which
these transaction costs either outweigh the benefits of working through each
system, or cause the system to distort the information it generates so as to
systematically misallocate resources.

The first thing to recognize is that markets, firms, and social relations are
three distinct transactional frameworks. Imagine that I am sitting in a room
and need paper for my printer. I could (a) order paper from a store; (b) call
[[pg 108]] the storeroom, if I am in a firm or organization that has one, and
ask the clerk to deliver the paper I need; or (c) walk over to a neighbor and
borrow some paper. Choice (a) describes the market transactional framework. The
store knows I need paper immediately because I am willing to pay for it now.
Alternative (b) is an example of the firm as a transactional framework. The
paper is in the storeroom because someone in the organization planned that
someone else would need paper today, with some probability, and ordered enough
to fill that expected need. The clerk in the storeroom gives it to me because
that is his job; again, defined by someone who planned to have someone
available to deliver paper when someone else in the proper channels of
authority says that she needs it. Comparing and improving the efficiency of (a)
and (b), respectively, has been a central project in transaction-costs
organization theory. We might compare, for example, the costs of taking my
call, verifying the credit card information, and sending a delivery truck for
my one batch of paper, to the costs of someone planning for the average needs
of a group of people like me, who occasionally run out of paper, and stocking a
storeroom with enough paper and a clerk to fill our needs in a timely manner.
However, notice that (c) is also an alternative transactional framework. I
could, rather than incurring the costs of transacting through the market with
the local store or of building a firm with sufficient lines of authority to
stock and manage the storeroom, pop over to my neighbor and ask for some paper.
This would make sense even within an existing firm when, for example, I need
two or three pages immediately and do not want to wait for the storeroom clerk
to do his rounds, or more generally, if I am working at home and the costs of
creating "a firm," stocking a storeroom, and paying a clerk are too high for my
neighbors and me. Instead, we develop a set of neighborly social relations,
rather than a firm-based organization, to deal with shortfalls during periods
when it would be too costly to assure a steady flow of paper from the
market--for example, late in the evening, on a weekend, or in a sparsely
populated area.

The point is not, of course, to reduce all social relations and human decency
to a transaction-costs theory. Too many such straight planks have already been
cut from the crooked timber of humanity to make that exercise useful or
enlightening. The point is that most of economics internally has been ignoring
the social transactional framework as an alternative whose relative efficiency
can be accounted for and considered in much the same way as the relative cost
advantages of simple markets when compared to the hierarchical organizations
that typify much of our economic activity--firms. [[pg 109]]

A market transaction, in order to be efficient, must be clearly demarcated as
to what it includes, so that it can be priced efficiently. That price must then
be paid in equally crisply delineated currency. Even if a transaction initially
may be declared to involve sale of "an amount reasonably required to produce
the required output," for a "customary" price, at some point what was provided
and what is owed must be crystallized and fixed for a formal exchange. The
crispness is a functional requirement of the price system. It derives from the
precision and formality of the medium of exchange--currency--and the ambition
to provide refined representations of the comparative value of marginal
decisions through denomination in an exchange medium that represents these
incremental value differences. Similarly, managerial hierarchies require a
crisp definition of who should be doing what, when, and how, in order to permit
the planning and coordination process to be effective.

Social exchange, on the other hand, does not require the same degree of
crispness at the margin. As Maurice Godelier put it in /The Enigma of the
Gift/, "the mark of the gift between close friends and relatives . . . is not
the absence of obligations, it is the absence of `calculation.' "[^39] There
are, obviously, elaborate and formally ritualistic systems of social exchange,
in both ancient societies and modern. There are common-property regimes that
monitor and record calls on the common pool very crisply. However, in many of
the common-property regimes, one finds mechanisms of bounding or fairly
allocating access to the common pool that more coarsely delineate the
entitlements, behaviors, and consequences than is necessary for a proprietary
system. In modern market society, where we have money as a formal medium of
precise exchange, and where social relations are more fluid than in traditional
societies, social exchange certainly occurs as a fuzzier medium. Across many
cultures, generosity is understood as imposing a debt of obligation; but none
of the precise amount of value given, the precise nature of the debt to be
repaid, or the date of repayment need necessarily be specified. Actions enter
into a cloud of goodwill or membership, out of which each agent can understand
him- or herself as being entitled to a certain flow of dependencies or benefits
in exchange for continued cooperative behavior. This may be an ongoing
relationship between two people, a small group like a family or group of
friends, and up to a general level of generosity among strangers that makes for
a decent society. The point is that social exchange does not require defining,
for example, "I will lend you my car and help you move these five boxes on
Monday, and in exchange you will feed my [[pg 110]] fish next July," in the
same way that the following would: "I will move five boxes on Tuesday for $100,
six boxes for $120." This does not mean that social systems are cost free--far
from it. They require tremendous investment, acculturation, and maintenance.
This is true in this case every bit as much as it is true for markets or
states. Once functional, however, social exchanges require less information
crispness at the margin.

Both social and market exchange systems require large fixed costs--the setting
up of legal institutions and enforcement systems for markets, and creating
social networks, norms, and institutions for the social exchange. Once these
initial costs have been invested, however, market transactions systematically
require a greater degree of precise information about the content of actions,
goods, and obligations, and more precision of monitoring and enforcement on a
per-transaction basis than do social exchange systems.

This difference between markets and hierarchical organizations, on the one
hand, and peer-production processes based on social relations, on the other, is
particularly acute in the context of human creative labor--one of the central
scarce resources that these systems must allocate in the networked information
economy. The levels and focus of individual effort are notoriously hard to
specify for pricing or managerial commands, considering all aspects of
individual effort and ability--talent, motivation, workload, and focus--as they
change in small increments over the span of an individual's full day, let alone
months. What we see instead is codification of effort types--a garbage
collector, a law professor--that are priced more or less finely. However, we
only need to look at the relative homogeneity of law firm starting salaries as
compared to the high variability of individual ability and motivation levels of
graduating law students to realize that pricing of individual effort can be
quite crude. Similarly, these attributes are also difficult to monitor and
verify over time, though perhaps not quite as difficult as predicting them ex
ante. Pricing therefore continues to be a function of relatively crude
information about the actual variability among people. More importantly, as
aspects of performance that are harder to fully specify in advance or
monitor--like creativity over time given the occurrence of new opportunities to
be creative, or implicit know-how--become a more significant aspect of what is
valuable about an individual's contribution, market mechanisms become more and
more costly to maintain efficiently, and, as a practical matter, simply lose a
lot of information.

People have different innate capabilities; personal, social, and educational
histories; emotional frameworks; and ongoing lived experiences, which make [[pg
111]] for immensely diverse associations with, idiosyncratic insights into, and
divergent utilization of existing information and cultural inputs at different
times and in different contexts. Human creativity is therefore very difficult
to standardize and specify in the contracts necessary for either market-cleared
or hierarchically organized production. As the weight of human intellectual
effort increases in the overall mix of inputs into a given production process,
an organization model that does not require contractual specification of the
individual effort required to participate in a collective enterprise, and which
allows individuals to self-identify for tasks, will be better at gathering and
utilizing information about who should be doing what than a system that does
require such specification. Some firms try to solve this problem by utilizing
market- and social-relations-oriented hybrids, like incentive compensation
schemes and employee-of-the-month-type social motivational frameworks. These
may be able to improve on firm-only or market-only approaches. It is unclear,
though, how well they can overcome the core difficulty: that is, that both
markets and firm hierarchies require significant specification of the object of
organization and pricing--in this case, human intellectual input. The point
here is qualitative. It is not only, or even primarily, that more people can
participate in production in a commons-based effort. It is that the widely
distributed model of information production will better identify the best
person to produce a specific component of a project, considering all abilities
and availability to work on the specific module within a specific time frame.
With enough uncertainty as to the value of various productive activities, and
enough variability in the quality of both information inputs and human creative
talent vis-a-vis any set of production ` opportunities, freedom of action for
individuals coupled with continuous communications among the pool of potential
producers and consumers can generate better information about the most valuable
productive actions, and the best human inputs available to engage in these
actions at a given time. Markets and firm incentive schemes are aimed at
producing precisely this form of self-identification. However, the rigidities
associated with collecting and comprehending bids from individuals through
these systems (that is, transaction costs) limit the efficacy of
self-identification by comparison to a system in which, once an individual
self-identifies for a task, he or she can then undertake it without permission,
contract, or instruction from another. The emergence of networked organizations
(described and analyzed in the work of Charles Sabel and others) suggests that
firms are in fact trying to overcome these limitations by developing parallels
to the freedom to learn, [[pg 112]] innovate, and act on these innovations that
is intrinsic to peer-production processes by loosening the managerial bonds,
locating more of the conception and execution of problem solving away from the
managerial core of the firm, and implementing these through social, as well as
monetary, motivations. However, the need to assure that the value created is
captured within the organization limits the extent to which these strategies
can be implemented within a single enterprise, as opposed to their
implementation in an open process of social production. This effect, in turn,
is in some sectors attenuated through the use of what Walter Powell and others
have described as learning networks. Engineers and scientists often create
frameworks that allow them to step out of their organizational affiliations,
through conferences or workshops. By reproducing the social production
characteristics of academic exchange, they overcome some of the information
loss caused by the boundary of the firm. While these organizational strategies
attenuate the problem, they also underscore the degree to which it is
widespread and understood by organizations as such. The fact that the direction
of the solutions business organizations choose tends to shift elements of the
production process away from market- or firm-based models and toward networked
social production models is revealing. Now, the self-identification that is
central to the relative information efficiency of peer production is not always
perfect. Some mechanisms used by firms and markets to codify effort levels and
abilities--like formal credentials--are the result of experience with
substantial errors or misstatements by individuals of their capacities. To
succeed, therefore, peer-production systems must also incorporate mechanisms
for smoothing out incorrect self-assessments--as peer review does in
traditional academic research or in the major sites like /Wikipedia/ or
Slashdot, or as redundancy and statistical averaging do in the case of NASA
clickworkers. The prevalence of misperceptions that individual contributors
have about their own ability and the cost of eliminating such errors will be
part of the transaction costs associated with this form of organization. They
parallel quality control problems faced by firms and markets.

The lack of crisp specification of who is giving what to whom, and in exchange
for what, also bears on the comparative transaction costs associated with the
allocation of the second major type of scarce resource in the networked
information economy: the physical resources that make up the networked
information environment--communications, computation, and storage capacity. It
is important to note, however, that these are very different from creativity
and information as inputs: they are private goods, not a [[pg 113]] public good
like information, and they are standardized goods with well-specified
capacities, not heterogeneous and highly uncertain attributes like human
creativity at a given moment and context. Their outputs, unlike information,
are not public goods. The reasons that they are nonetheless subject to
efficient sharing in the networked environment therefore require a different
economic explanation. However, the sharing of these material resources, like
the sharing of human creativity, insight, and attention, nonetheless relies on
both the comparative transaction costs of markets and social relations and the
diversity of human motivation.

Personal computers, wireless transceivers, and Internet connections are
"shareable goods." The basic intuition behind the concept of shareable goods is
simple. There are goods that are "lumpy": given a state of technology, they can
only be produced in certain discrete bundles that offer discontinuous amounts
of functionality or capacity. In order to have any ability to run a
computation, for example, a consumer must buy a computer processor. These, in
turn, only come in discrete units with a certain speed or capacity. One could
easily imagine a world where computers are very large and their owners sell
computation capacity to consumers "on demand," whenever they needed to run an
application. That is basically the way the mainframe world of the 1960s and
1970s worked. However, the economics of microchip fabrication and of network
connections over the past thirty years, followed by storage technology, have
changed that. For most functions that users need, the price-performance
trade-off favors stand-alone, general-purpose personal computers, owned by
individuals and capable of running locally most applications users want, over
remote facilities capable of selling on-demand computation and storage. So
computation and storage today come in discrete, lumpy units. You can decide to
buy a faster or slower chip, or a larger or smaller hard drive, but once you
buy them, you have the capacity of these machines at your disposal, whether you
need it or not.

Lumpy goods can, in turn, be fine-, medium-, or large-grained. A large-grained
good is one that is so expensive it can only be used by aggregating demand for
it. Industrial capital equipment, like a steam engine, is of this type.
Fine-grained goods are of a granularity that allows consumers to buy precisely
as much of the goods needed for the amount of capacity they require.
Medium-grained goods are small enough for an individual to justify buying for
her own use, given their price and her willingness and ability to pay for the
functionality she plans to use. A personal computer is a medium-grained lumpy
good in the advanced economies and among the more well-to-do [[pg 114]] in
poorer countries, but is a large-grained capital good for most people in poor
countries. If, given the price of such a good and the wealth of a society, a
large number of individuals buy and use such medium-grained lumpy goods, that
society will have a large amount of excess capacity "out there," in the hands
of individuals. Because these machines are put into service to serve the needs
of individuals, their excess capacity is available for these individuals to use
as they wish--for their own uses, to sell to others, or to share with others.
It is the combination of the fact that these machines are available at prices
(relative to wealth) that allow users to put them in service based purely on
their value for personal use, and the fact that they have enough capacity to
facilitate additionally the action and fulfill the needs of others, that makes
them "shareable." If they were so expensive that they could only be bought by
pooling the value of a number of users, they would be placed in service either
using some market mechanism to aggregate that demand, or through formal
arrangements of common ownership by all those whose demand was combined to
invest in purchasing the resource. If they were so finely grained in their
capacity that there would be nothing left to share, again, sharing would be
harder to sustain. The fact that they are both relatively inexpensive and have
excess capacity makes them the basis for a stable model of individual ownership
of resources combined with social sharing of that excess capacity.

Because social sharing requires less precise specification of the transactional
details with each transaction, it has a distinct advantage over market-based
mechanisms for reallocating the excess capacity of shareable goods,
particularly when they have small quanta of excess capacity relative to the
amount necessary to achieve the desired outcome. For example, imagine that
there are one thousand people in a population of computer owners. Imagine that
each computer is capable of performing one hundred computations per second, and
that each computer owner needs to perform about eighty operations per second.
Every owner, in other words, has twenty operations of excess capacity every
second. Now imagine that the marginal transaction costs of arranging a sale of
these twenty operations--exchanging PayPal (a widely used low-cost
Internet-based payment system) account information, insurance against
nonpayment, specific statement of how much time the computer can be used, and
so forth--cost ten cents more than the marginal transaction costs of sharing
the excess capacity socially. John wants to render a photograph in one second,
which takes two hundred operations per second. Robert wants to model the
folding of proteins, which takes ten thousand [[pg 115]] operations per second.
For John, a sharing system would save fifty cents--assuming he can use his own
computer for half of the two hundred operations he needs. He needs to transact
with five other users to "rent" their excess capacity of twenty operations
each. Robert, on the other hand, needs to transact with five hundred individual
owners in order to use their excess capacity, and for him, using a sharing
system is fifty dollars cheaper. The point of the illustration is simple. The
cost advantage of sharing as a transactional framework relative to the price
system increases linearly with the number of transactions necessary to acquire
the level of resources necessary for an operation. If excess capacity in a
society is very widely distributed in small dollops, and for any given use of
the excess capacity it is necessary to pool the excess capacity of thousands or
even millions of individual users, the transaction-cost advantages of the
sharing system become significant.

The transaction-cost effect is reinforced by the motivation crowding out
theory. When many discrete chunks of excess capacity need to be pooled, each
distinct contributor cannot be paid a very large amount. Motivation crowding
out theory would predict that when the monetary rewards to an activity are low,
the negative effect of crowding out the social-psychological motivation will
weigh more heavily than any increased incentive that is created by the promise
of a small payment to transfer one's excess capacity. The upshot is that when
the technological state results in excess capacity of physical capital being
widely distributed in small dollops, social sharing can outperform secondary
markets as a mechanism for harnessing that excess capacity. This is so because
of both transaction costs and motivation. Fewer owners will be willing to sell
their excess capacity cheaply than to give it away for free in the right social
context and the transaction costs of selling will be higher than those of
sharing.

From an efficiency perspective, then, there are clear reasons to think that
social production systems--both peer production of information, knowledge, and
culture and sharing of material resources--can be more efficient than
market-based systems to motivate and allocate both human creative effort and
the excess computation, storage, and communications capacity that typify the
networked information economy. That does not mean that all of us will move out
of market-based productive relationships all of the time. It does mean that
alongside our market-based behaviors we generate substantial amounts of human
creativity and mechanical capacity. The transaction costs of clearing those
resources through the price system or through [[pg 116]] firms are substantial,
and considerably larger for the marginal transaction than clearing them through
social-sharing mechanisms as a transactional framework. With the right
institutional framework and peer-review or quality-control mechanisms, and with
well-modularized organization of work, social sharing is likely to identify the
best person available for a job and make it feasible for that person to work on
that job using freely available information inputs. Similarly, social
transactional frameworks are likely to be substantially less expensive than
market transactions for pooling large numbers of discrete, small increments of
the excess capacity of the personal computer processors, hard drives, and
network connections that make up the physical capital base of the networked
information economy. In both cases, given that much of what is shared is excess
capacity from the perspective of the contributors, available to them after they
have fulfilled some threshold level of their market-based consumption
requirements, social-sharing systems are likely to tap in to social
psychological motivations that money cannot tap, and, indeed, that the presence
of money in a transactional framework could nullify. Because of these effects,
social sharing and collaboration can provide not only a sustainable alternative
to market-based and firm-based models of provisioning information, knowledge,
culture, and communications, but also an alternative that more efficiently
utilizes the human and physical capital base of the networked information
economy. A society whose institutional ecology permitted social production to
thrive would be more productive under these conditions than a society that
optimized its institutional environment solely for market- and firm-based
production, ignoring its detrimental effects to social production.

THE EMERGENCE OF SOCIAL PRODUCTION IN THE DIGITALLY NETWORKED ENVIRONMENT
.........................................................................

There is a curious congruence between the anthropologists of the gift and
mainstream economists today. Both treat the gift literature as being about the
periphery, about societies starkly different from modern capitalist societies.
As Godelier puts it, "What a contrast between these types of society, these
social and mental universes, and today's capitalist society where the majority
of social relations are impersonal (involving the individual as citizen and the
state, for instance), and where the exchange of things and services is
conducted for the most part in an anonymous marketplace, leaving little room
for an economy and moral code based on gift-giving."[^40] And yet, [[pg 117]]
sharing is everywhere around us in the advanced economies. Since the 1980s, we
have seen an increasing focus, in a number of literatures, on production
practices that rely heavily on social rather than price-based or governmental
policies. These include, initially, the literature on social norms and social
capital, or trust.[^41] Both these lines of literature, however, are statements
of the institutional role of social mechanisms for enabling market exchange and
production. More direct observations of social production and exchange systems
are provided by the literature on social provisioning of public goods-- like
social norm enforcement as a dimension of policing criminality, and the
literature on common property regimes.[^42] The former are limited by their
focus on public goods provisioning. The latter are usually limited by their
focus on discretely identifiable types of resources--common pool resources--
that must be managed as among a group of claimants while retaining a
proprietary outer boundary toward nonmembers. The focus of those who study
these phenomena is usually on relatively small and tightly knit communities,
with clear boundaries between members and nonmembers.[^43]

These lines of literature point to an emerging understanding of social
production and exchange as an alternative to markets and firms. Social
production is not limited to public goods, to exotic, out-of-the-way places
like surviving medieval Spanish irrigation regions or the shores of Maine's
lobster fishing grounds, or even to the ubiquitous phenomenon of the household.
As SETI@home and Slashdot suggest, it is not necessarily limited to stable
communities of individuals who interact often and know each other, or who
expect to continue to interact personally. Social production of goods and
services, both public and private, is ubiquitous, though unnoticed. It
sometimes substitutes for, and sometimes complements, market and state
production everywhere. It is, to be fanciful, the dark matter of our economic
production universe.

Consider the way in which the following sentences are intuitively familiar, yet
as a practical matter, describe the provisioning of goods or services that have
well-defined NAICS categories (the categories used by the Economic Census to
categorize economic sectors) whose provisioning through the markets is
accounted for in the Economic Census, but that are commonly provisioned in a
form consistent with the definition of sharing--on a radically distributed
model, without price or command.

NAICS 624410624410 [Babysitting services, child day care]
  "John, could you pick up Bobby today when you take Lauren to soccer?
I have a conference call I have to make." [[pg 118]]
  "Are you doing homework with Zoe today, or shall I?"

NAICS 484210 [Trucking used household, office, or institutional
furniture and equipment]
  "Jane, could you lend a hand moving this table to the dining room?"
  "Here, let me hold the elevator door for you, this looks heavy."

NAICS 484122 [Trucking, general freight, long-distance,
less-than-truckload]
  "Jack, do you mind if I load my box of books in your trunk so
you can drop it off at my brother's on your way to Boston?"

NAICS 514110 [Traffic reporting services]
  "Oh, don't take I-95, it's got horrible construction traffic to
exit 39."

NAICS 711510 [Newspaper columnists, independent (freelance)]
  "I don't know about Kerry, he doesn't move me, I think he should be
more aggressive in criticizing Bush on Iraq."

NAICS 621610 [Home health-care services]
  "Can you please get me my medicine? I'm too wiped to get up."
  "Would you like a cup of tea?"

NAICS 561591 [Tourist information bureaus]
  "Excuse me, how do I get to Carnegie Hall?"

NAICS 561321 [Temporary help services]
  "I've got a real crunch on the farm, can you come over on Saturday
and lend a hand?"
  "This is crazy, I've got to get this document out tonight, could you
lend me a hand with proofing and pulling it all together tonight?"

NAICS 71 [Arts, entertainment, and recreation]
  "Did you hear the one about the Buddhist monk, the Rabbi, and
the Catholic priest...?"
  "Roger, bring out your guitar...."
  "Anybody up for a game of...?"

The litany of examples generalizes through a combination of four dimensions
that require an expansion from the current focus of the literatures related to
social production. First, they relate to production of goods and services, not
only of norms or rules. Social relations provide the very motivations for, and
information relating to, production and exchange, not only the institutional
framework for organizing action, which itself is motivated, informed, and
organized by markets or managerial commands. Second, they relate to all kinds
of goods, not only public goods. In particular, the paradigm cases of free
software development and distributed computing involve labor and shareable
goods--each plainly utilizing private goods as inputs, [[pg 119]] and, in the
case of distributed computing, producing private goods as outputs. Third, at
least some of them relate not only to relations of production within
well-defined communities of individuals who have repeated interactions, but
extend to cover baseline standards of human decency. These enable strangers to
ask one another for the time or for directions, enable drivers to cede the road
to each other, and enable strangers to collaborate on software projects, on
coauthoring an online encyclopedia, or on running simulations of how proteins
fold. Fourth, they may either complement or substitute for market and state
production systems, depending on the social construction of mixed provisioning.
It is hard to measure the weight that social and sharing-based production has
in the economy. Our intuitions about capillary systems would suggest that the
total volume of boxes or books moved or lifted, instructions given, news
relayed, and meals prepared by family, friends, neighbors, and minimally decent
strangers would be very high relative to the amount of substitutable activity
carried on through market exchanges or state provisioning.

Why do we, despite the ubiquity of social production, generally ignore it as an
economic phenomenon, and why might we now reconsider its importance? A
threshold requirement for social sharing to be a modality of economic
production, as opposed to one purely of social reproduction, is that
sharing-based action be effective. Efficacy of individual action depends on the
physical capital requirements for action to become materially effective, which,
in turn, depend on technology. Effective action may have very low physical
capital requirements, so that every individual has, by natural capacity, "the
physical capital" necessary for action. Social production or sharing can then
be ubiquitous (though in practice, it may not). Vocal cords to participate in a
sing-along or muscles to lift a box are obvious examples. When the capital
requirements are nontrivial, but the capital good is widely distributed and
available, sharing can similarly be ubiquitous and effective. This is true both
when the shared resource or good is the capacity of the capital good itself--as
in the case of shareable goods--and when some widely distributed human capacity
is made effective through the use of the widely distributed capital goods--as
in the case of human creativity, judgment, experience, and labor shared in
online peer-production processes--in which participants contribute using the
widespread availability of connected computers. When use of larger-scale
physical capital goods is a threshold requirement of effective action, we
should not expect to see widespread reliance on decentralized sharing as a
standard modality of production. Industrial [[pg 120]] mass-manufacture of
automobiles, steel, or plastic toys, for example, is not the sort of thing that
is likely to be produced on a social-sharing basis, because of the capital
constraints. This is not to say that even for large-scale capital projects,
like irrigation systems and dams, social production systems cannot step into
the breach. We have those core examples in the common-property regime
literature, and we have worker-owned firms as examples of mixed systems.
However, those systems tend to replicate the characteristics of firm, state, or
market production--using various combinations of quotas, scrip systems, formal
policing by "professional" officers, or management within worker-owned firms.
By comparison, the "common property" arrangements described among lobster gangs
of Maine or fishing groups in Japan, where capital requirements are much lower,
tend to be more social-relations-based systems, with less formalized or crisp
measurement of contributions to, and calls on, the production system.

To say that sharing is technology dependent is not to deny that it is a
ubiquitous human phenomenon. Sharing is so deeply engrained in so many of our
cultures that it would be difficult to argue that with the "right" (or perhaps
"wrong") technological contingencies, it would simply disappear. My claim,
however, is narrower. It is that the relative economic role of sharing changes
with technology. There are technological conditions that require more or less
capital, in larger or smaller packets, for effective provisioning of goods,
services, and resources the people value. As these conditions change, the
relative scope for social-sharing practices to play a role in production
changes. When goods, services, and resources are widely dispersed, their owners
can choose to engage with each other through social sharing instead of through
markets or a formal, state-based relationship, because individuals have
available to them the resources necessary to engage in such behavior without
recourse to capital markets or the taxation power of the state. If
technological changes make the resources necessary for effective action rare or
expensive, individuals may wish to interact in social relations, but they can
now only do so ineffectively, or in different fields of endeavor that do not
similarly require high capitalization. Large-packet, expensive physical capital
draws the behavior into one or the other of the modalities of production that
can collect the necessary financial capital--through markets or taxation.
Nothing, however, prevents change from happening in the opposite direction.
Goods, services, and resources that, in the industrial stage of the information
economy required large-scale, concentrated capital investment to provision, are
now subject to a changing technological environment [[pg 121]] that can make
sharing a better way of achieving the same results than can states, markets, or
their hybrid, regulated industries.

Because of changes in the technology of the industrial base of the most
advanced economies, social sharing and exchange is becoming a common modality
of production at their very core--in the information, culture, education,
computation, and communications sectors. Free software, distributed computing,
ad hoc mesh wireless networks, and other forms of peer production offer clear
examples of large-scale, measurably effective sharing practices. The highly
distributed capital structure of contemporary communications and computation
systems is largely responsible for this increased salience of social sharing as
a modality of economic production in that environment. By lowering the capital
costs required for effective individual action, these technologies have allowed
various provisioning problems to be structured in forms amenable to
decentralized production based on social relations, rather than through markets
or hierarchies.

My claim is not, of course, that we live in a unique moment of humanistic
sharing. It is, rather, that our own moment in history suggests a more general
observation. The technological state of a society, in particular the extent to
which individual agents can engage in efficacious production activities with
material resources under their individual control, affects the opportunities
for, and hence the comparative prevalence and salience of, social, market--
both price-based and managerial--and state production modalities. The capital
cost of effective economic action in the industrial economy shunted sharing to
its economic peripheries--to households in the advanced economies, and to the
global economic peripheries that have been the subject of the anthropology of
gift or the common-property regime literatures. The emerging restructuring of
capital investment in digital networks--in particular, the phenomenon of
user-capitalized computation and communications capabilities--are at least
partly reversing that effect. Technology does not determine the level of
sharing. It does, however, set threshold constraints on the effective domain of
sharing as a modality of economic production. Within the domain of the
practically feasible, the actual level of sharing practices will be culturally
driven and cross-culturally diverse.

Most practices of production--social or market-based--are already embedded in a
given technological context. They present no visible "problem" to solve or
policy choice to make. We do not need to be focused consciously on improving
the conditions under which friends lend a hand to each other to move boxes,
make dinner, or take kids to school. We feel no need to [[pg 122]] reconsider
the appropriateness of market-based firms as the primary modality for the
production of automobiles. However, in moments where a field of action is
undergoing a technological transition that changes the opportunities for
sharing as a modality of production, understanding that sharing is a modality
of production becomes more important, as does understanding how it functions as
such. This is so, as we are seeing today, when prior technologies have already
set up market- or state-based production systems that have the law and
policy-making systems already designed to fit their requirements. While the
prior arrangement may have been the most efficient, or even may have been
absolutely necessary for the incumbent production system, its extension under
new technological conditions may undermine, rather than improve, the capacity
of a society to produce and provision the goods, resources, or capacities that
are the object of policy analysis. This is, as I discuss in part III, true of
wireless communications regulation, or "spectrum management," as it is usually
called; of the regulation of information, knowledge, and cultural production,
or "intellectual property," as it is usually now called; and it may be true of
policies for computation and wired communications networks, as distributed
computing and the emerging peer-to-peer architectures suggest.

THE INTERFACE OF SOCIAL PRODUCTION AND MARKET-BASED BUSINESSES
..............................................................

The rise of social production does not entail a decline in market-based
production. Social production first and foremost harnesses impulses, time, and
resources that, in the industrial information economy, would have been wasted
or used purely for consumption. Its immediate effect is therefore likely to
increase overall productivity in the sectors where it is effective. But that
does not mean that its effect on market-based enterprises is neutral. A newly
effective form of social behavior, coupled with a cultural shift in tastes as
well as the development of new technological and social solution spaces to
problems that were once solved through market-based firms, exercises a
significant force on the shape and conditions of market action. Understanding
the threats that these developments pose to some incumbents explains much of
the political economy of law in this area, which will occupy chapter 11. At the
simplest level, social production in general and peer production in particular
present new sources of competition to incumbents that produce information goods
for which there are now socially produced substitutes. [[pg 123]] Open source
software development, for example, first received mainstream media attention in
1998 due to publication of a leaked internal memorandum from Microsoft, which
came to be known as The Halloween Memo. In it, a Microsoft strategist
identified the open source methodology as the one major potential threat to the
company's dominance over the desktop. As we have seen since, definitively in
the Web server market and gradually in segments of the operating system market,
this prediction proved prescient. Similarly, /Wikipedia/ now presents a source
of competition to online encyclopedias like Columbia, Grolier, or Encarta, and
may well come to be seen as an adequate substitute for Britannica as well. Most
publicly visible, peer-to-peer file sharing networks have come to compete with
the recording industry as an alternative music distribution system, to the
point where the longterm existence of that industry is in question. Some
scholars like William Fisher, and artists like Jenny Toomey and participants in
the Future of Music Coalition, are already looking for alternative ways of
securing for artists a living from the music they make.

The competitive threat from social production, however, is merely a surface
phenomenon. Businesses often face competition or its potential, and this is a
new source, with new economics, which may or may not put some of the incumbents
out of business. But there is nothing new about entrants with new business
models putting slow incumbents out of business. More basic is the change in
opportunity spaces, the relationships of firms to users, and, indeed, the very
nature of the boundary of the firm that those businesses that are already
adapting to the presence and predicted persistence of social production are
exhibiting. Understanding the opportunities social production presents for
businesses begins to outline how a stable social production system can coexist
and develop a mutually reinforcing relationship with market-based organizations
that adapt to and adopt, instead of fight, them.

Consider the example I presented in chapter 2 of IBM's relationship to the free
and open source software development community. IBM, as I explained there, has
shown more than $2 billion a year in "Linux-related revenues." Prior to IBM's
commitment to adapting to what the firm sees as the inevitability of free and
open source software, the company either developed in house or bought from
external vendors the software it needed as part of its hardware business, on
the one hand, and its software services-- customization, enterprise solutions,
and so forth--on the other hand. In each case, the software development follows
a well-recognized supply chain model. Through either an employment contract or
a supply contract the [[pg 124]] company secures a legal right to require
either an employee or a vendor to deliver a given output at a given time. In
reliance on that notion of a supply chain that is fixed or determined by a
contract, the company turns around and promises to its clients that it will
deliver the integrated product or service that includes the contracted-for
component. With free or open source software, that relationship changes. IBM is
effectively relying for its inputs on a loosely defined cloud of people who are
engaged in productive social relations. It is making the judgment that the
probability that a sufficiently good product will emerge out of this cloud is
high enough that it can undertake a contractual obligation to its clients, even
though no one in the cloud is specifically contractually committed to it to
produce the specific inputs the firm needs in the time-frame it needs it. This
apparent shift from a contractually deterministic supply chain to a
probabilistic supply chain is less dramatic, however, than it seems. Even when
contracts are signed with employees or suppliers, they merely provide a
probability that the employee or the supplier will in fact supply in time and
at appropriate quality, given the difficulties of coordination and
implementation. A broad literature in organization theory has developed around
the effort to map the various strategies of collaboration and control intended
to improve the likelihood that the different components of the production
process will deliver what they are supposed to: from early efforts at vertical
integration, to relational contracting, pragmatic collaboration, or Toyota's
fabled flexible specialization. The presence of a formalized enforceable
contract, for outputs in which the supplier can claim and transfer a property
right, may change the probability of the desired outcome, but not the fact that
in entering its own contract with its clients, the company is making a
prediction about the required availability of necessary inputs in time. When
the company turns instead to the cloud of social production for its inputs, it
is making a similar prediction. And, as with more engaged forms of relational
contracting, pragmatic collaborations, or other models of iterated relations
with co-producers, the company may engage with the social process in order to
improve the probability that the required inputs will in fact be produced in
time. In the case of companies like IBM or Red Hat, this means, at least
partly, paying employees to participate in the open source development
projects. But managing this relationship is tricky. The firms must do so
without seeking to, or even seeming to seek to, take over the project; for to
take over the project in order to steer it more "predictably" toward the firm's
needs is to kill the goose that lays the golden eggs. For IBM and more recently
Nokia, supporting [[pg 125]] the social processes on which they rely has also
meant contributing hundreds of patents to the Free Software Foundation, or
openly licensing them to the software development community, so as to extend
the protective umbrella created by these patents against suits by competitors.
As the companies that adopt this strategic reorientation become more integrated
into the peer-production process itself, the boundary of the firm becomes more
porous. Participation in the discussions and governance of open source
development projects creates new ambiguity as to where, in relation to what is
"inside" and "outside" of the firm boundary, the social process is. In some
cases, a firm may begin to provide utilities or platforms for the users whose
outputs it then uses in its own products. The Open Source Development Group
(OSDG), for example, provides platforms for Slashdot and SourceForge. In these
cases, the notion that there are discrete "suppliers" and "consumers," and that
each of these is clearly demarcated from the other and outside of the set of
stable relations that form the inside of the firm becomes somewhat attenuated.

As firms have begun to experience these newly ambiguous relationships with
individuals and social groups, they have come to wrestle with questions of
leadership and coexistence. Businesses like IBM, or eBay, which uses peer
production as a critical component of its business ecology--the peer reviewed
system of creating trustworthiness, without which person-to-person transactions
among individual strangers at a distance would be impossible-- have to
structure their relationship to the peer-production processes that they
co-exist with in a helpful and non-threatening way. Sometimes, as we saw in the
case of IBM's contributions to the social process, this may mean support
without attempting to assume "leadership" of the project. Sometimes, as when
peer production is integrated more directly into what is otherwise a
commercially created and owned platform--as in the case of eBay--the
relationship is more like that of a peer-production leader than of a commercial
actor. Here, the critical and difficult point for business managers to accept
is that bringing the peer-production community into the newly semi-porous
boundary of the firm--taking those who used to be customers and turning them
into participants in a process of co-production-- changes the relationship of
the firm's managers and its users. Linden Labs, which runs Second Life, learned
this in the context of the tax revolt described in chapter 3. Users cannot be
ordered around like employees. Nor can they be simply advertised-to and
manipulated, or even passively surveyed, like customers. To do that would be to
lose the creative and generative social [[pg 126]] character that makes
integration of peer production into a commercial business model so valuable for
those businesses that adopt it. Instead, managers must be able to identify
patterns that emerge in the community and inspire trust that they are correctly
judging the patterns that are valuable from the perspective of the users, not
only the enterprise, so that the users in fact coalesce around and extend these
patterns.

The other quite basic change wrought by the emergence of social production,
from the perspective of businesses, is a change in taste. Active users require
and value new and different things than passive consumers did. The industrial
information economy specialized in producing finished goods, like movies or
music, to be consumed passively, and well-behaved appliances, like televisions,
whose use was fully specified at the factory door. The emerging businesses of
the networked information economy are focusing on serving the demand of active
users for platforms and tools that are much more loosely designed,
late-binding--that is, optimized only at the moment of use and not in
advance--variable in their uses, and oriented toward providing users with new,
flexible platforms for relationships. Personal computers, camera phones, audio
and video editing software, and similar utilities are examples of tools whose
value increases for users as they are enabled to explore new ways to be
creative and productively engaged with others. In the network, we are beginning
to see business models emerge to allow people to come together, like MeetUp,
and to share annotations of Web pages they read, like del.icio.us, or
photographs they took, like Flickr. Services like Blogger and Technorati
similarly provide platforms for the new social and cultural practices of
personal journals, or the new modes of expression described in chapters 7 and
8.

The overarching point is that social production is reshaping the market
conditions under which businesses operate. To some of the incumbents of the
industrial information economy, the pressure from social production is
experienced as pure threat. It is the clash between these incumbents and the
new practices that was most widely reported in the media in the first five
years of the twenty-first century, and that has driven much of policy making,
legislation, and litigation in this area. But the much more fundamental effect
on the business environment is that social production is changing the
relationship of firms to individuals outside of them, and through this changing
the strategies that firms internally are exploring. It is creating new sources
of inputs, and new tastes and opportunities for outputs. Consumers are changing
into users--more active and productive than the consumers of the [[pg 127]]
industrial information economy. The change is reshaping the relationships
necessary for business success, requiring closer integration of users into the
process of production, both in inputs and outputs. It requires different
leadership talents and foci. By the time of this writing, in 2005, these new
opportunities and adaptations have begun to be seized upon as strategic
advantages by some of the most successful companies working around the Internet
and information technology, and increasingly now around information and
cultural production more generally. Eric von Hippel's work has shown how the
model of user innovation has been integrated into the business model of
innovative firms even in sectors far removed from either the network or from
information production--like designing kite-surfing equipment or mountain
bikes. As businesses begin to do this, the platforms and tools for
collaboration improve, the opportunities and salience of social production
increases, and the political economy begins to shift. And as these firms and
social processes coevolve, the dynamic accommodation they are developing
provides us with an image of what the future stable interface between
market-based businesses and the newly salient social production is likely to
look like. [[pg 128]] [[pg 129]]


----------------------------------------
PART TWO - THE POLITICAL ECONOMY OF PROPERTY AND COMMONS
========================================================


----------------------------------------
INTRODUCTION
------------

How a society produces its information environment goes to the very core of
freedom. Who gets to say what, to whom? What is the state of the world? What
counts as credible information? How will different forms of action affect the
way the world can become? These questions go to the foundations of effective
human action. They determine what individuals understand to be the range of
options open to them, and the range of consequences to their actions. They
determine what is understood to be open for debate in a society, and what is
considered impossible as a collective goal or a collective path for action.
They determine whose views count toward collective action, and whose views are
lost and never introduced into the debate of what we should do as political
entities or social communities. Freedom depends on the information environment
that those individuals and societies occupy. Information underlies the very
possibility of individual self-direction. Information and communication
constitute the practices that enable a community to form a common range of
understandings of what is at stake and what paths are open for the taking. They
are constitutive [[pg 130]] components of both formal and informal mechanisms
for deciding on collective action. Societies that embed the emerging networked
information economy in an institutional ecology that accommodates nonmarket
production, both individual and cooperative, will improve the freedom of their
constituents along all these dimensions.

The networked information economy makes individuals better able to do things
for and by themselves, and makes them less susceptible to manipulation by
others than they were in the mass-media culture. In this sense, the emergence
of this new set of technical, economic, social, and institutional relations can
increase the relative role that each individual is able to play in authoring
his or her own life. The networked information economy also promises to provide
a much more robust platform for public debate. It enables citizens to
participate in public conversation continuously and pervasively, not as passive
recipients of "received wisdom" from professional talking heads, but as active
participants in conversations carried out at many levels of political and
social structure. Individuals can find out more about what goes on in the
world, and share it more effectively with others. They can check the claims of
others and produce their own, and they can be heard by others, both those who
are like-minded and opponents. At a more foundational level of collective
understanding, the shift from an industrial to a networked information economy
increases the extent to which individuals can become active participants in
producing their own cultural environment. It opens the possibility of a more
critical and reflective culture.

Unlike the relationship of information production to freedom, the relationship
between the organization of information production and distributive justice is
not intrinsic. However, the importance of knowledge in contemporary economic
production makes a change in the modality of information production important
to justice as well. The networked information economy can provide opportunities
for global development and for improvements in the justice of distribution of
opportunities and capacities everywhere. Economic opportunity and welfare
today--of an individual, a social group, or a nation--depend on the state of
knowledge and access to opportunities to learn and apply practical knowledge.
Transportation networks, global financial markets, and institutional trade
arrangements have made material resources and outputs capable of flowing more
efficiently from any one corner of the globe to another than they were at any
previous period. Economic welfare and growth now depend more on knowledge and
social [[pg 131]] organization than on natural sources. Knowledge transfer and
social reform, probably more than any other set of changes, can affect the
economic opportunities and material development of different parts of the
global economic system, within economies both advanced and less developed. The
emergence of a substantial nonmarket sector in the networked information
economy offers opportunities for providing better access to knowledge and
information as input from, and better access for information outputs of,
developing and less-developed economies and poorer geographic and social
sectors in the advanced economies. Better access to knowledge and the emergence
of less capital-dependent forms of productive social organization offer the
possibility that the emergence of the networked information economy will open
up opportunities for improvement in economic justice, on scales both global and
local.

The basic intuition and popular belief that the Internet will bring greater
freedom and global equity has been around since the early 1990s. It has been
the technophile's basic belief, just as the horrors of cyberporn, cybercrime,
or cyberterrorism have been the standard gut-wrenching fears of the
technophobe. The technophilic response is reminiscent of claims made in the
past for electricity, for radio, or for telegraph, expressing what James Carey
described as "the mythos of the electrical sublime." The question this part of
the book explores is whether this claim, given the experience of the past
decade, can be sustained on careful analysis, or whether it is yet another
instance of a long line of technological utopianism. The fact that earlier
utopias were overly optimistic does not mean that these previous technologies
did not in fact alter the conditions of life--material, social, and
intellectual. They did, but they did so differently in different societies, and
in ways that diverged from the social utopias attached to them. Different
nations absorbed and used these technologies differently, diverging in social
and cultural habits, but also in institutional strategies for adoption--some
more state-centric, others more market based; some more controlled, others less
so. Utopian or at least best-case conceptions of the emerging condition are
valuable if they help diagnose the socially and politically significant
attributes of the emerging networked information economy correctly and allow us
to form a normative conception of their significance. At a minimum, with these
in hand, we can begin to design our institutional response to the present
technological perturbation in order to improve the conditions of freedom and
justice over the next few decades. [[pg 132]]

The chapters in this part focus on major liberal commitments or concerns.
Chapter 5 addresses the question of individual autonomy. Chapters 6, 7, and 8
address democratic participation: first in the political public sphere and
then, more broadly, in the construction of culture. Chapter 9 deals with
justice and human development. Chapter 10 considers the effects of the
networked information economy on community. [[pg 133]]


----------------------------------------
CHAPTER 5 - INDIVIDUAL FREEDOM: AUTONOMY, INFORMATION, AND LAW
--------------------------------------------------------------

The emergence of the networked information economy has the potential to
increase individual autonomy. First, it increases the range and diversity of
things that individuals can do for and by themselves. It does this by lifting,
for one important domain of life, some of the central material constraints on
what individuals can do that typified the industrial information economy. The
majority of materials, tools, and platforms necessary for effective action in
the information environment are in the hands of most individuals in advanced
economies. Second, the networked information economy provides nonproprietary
alternative sources of communications capacity and information, alongside the
proprietary platforms of mediated communications. This decreases the extent to
which individuals are subject to being acted upon by the owners of the
facilities on which they depend for communications. The construction of
consumers as passive objects of manipulation that typified television culture
has not disappeared overnight, but it is losing its dominance in the
information environment. Third, the networked information environment
qualitatively increases the range and diversity of information [[pg 134]]
available to individuals. It does so by enabling sources commercial and
noncommercial, mainstream and fringe, domestic or foreign, to produce
information and communicate with anyone. This diversity radically changes the
universe of options that individuals can consider as open for them to pursue.
It provides them a richer basis to form critical judgments about how they could
live their lives, and, through this opportunity for critical reflection, why
they should value the life they choose.

FREEDOM TO DO MORE FOR ONESELF, BY ONESELF, AND WITH OTHERS
...........................................................

Rory Cejas was a twenty-six-year-old firefighter/paramedic with the Miami Fire
Department in 2003, when he enlisted the help of his brother, wife, and a
friend to make a Star Wars-like fan film. Using a simple camcorder and tripod,
and widely available film and image generation and editing software on his
computer, he made a twenty-minute film he called /The Jedi Saga/. The film is
not a parody. It is not social criticism. It is a straightforward effort to
make a movie in the genre of /Star Wars/, using the same type of characters and
story lines. In the predigital world, it would have been impossible, as a
practical matter, for Cejas to do this. It would have been an implausible part
of his life plan to cast his wife as a dark femme fatale, or his brother as a
Jedi Knight, so they could battle shoulder-to-shoulder, light sabers drawn,
against a platoon of Imperial clone soldiers. And it would have been impossible
for him to distribute the film he had made to friends and strangers. The
material conditions of cultural production have changed, so that it has now
become part of his feasible set of options. He needs no help from government to
do so. He needs no media access rules that give him access to fancy film
studios. He needs no cable access rules to allow him to distribute his fantasy
to anyone who wants to watch it. The new set of feasible options open to him
includes not only the option passively to sit in the theatre or in front of the
television and watch the images created by George Lucas, but also the option of
trying his hand at making this type of film by himself.

/Jedi Saga/ will not be a blockbuster. It is not likely to be watched by many
people. Those who do watch it are not likely to enjoy it in the same way that
they enjoyed any of Lucas's films, but that is not its point. When someone like
Cejas makes such a film, he is not displacing what Lucas does. He is changing
what he himself does--from sitting in front of a screen that [[pg 135]] is
painted by another to painting his own screen. Those who watch it will enjoy it
in the same way that friends and family enjoy speaking to each other or singing
together, rather than watching talking heads or listening to Talking Heads.
Television culture, the epitome of the industrial information economy,
structured the role of consumers as highly passive. While media scholars like
John Fiske noted the continuing role of viewers in construing and interpreting
the messages they receive, the role of the consumer in this model is well
defined. The media product is a finished good that they consume, not one that
they make. Nowhere is this clearer than in the movie theatre, where the absence
of light, the enveloping sound, and the size of the screen are all designed to
remove the viewer as agent, leaving only a set of receptors--eyes,
ears--through which to receive the finished good that is the movie. There is
nothing wrong with the movies as one mode of entertainment. The problem
emerges, however, when the movie theatre becomes an apt metaphor for the
relationship the majority of people have with most of the information
environment they occupy. That increasing passivity of television culture came
to be a hallmark of life for most people in the late stages of the industrial
information economy. The couch potato, the eyeball bought and sold by Madison
Avenue, has no part in making the information environment he or she occupies.

Perhaps no single entertainment product better symbolizes the shift that the
networked information economy makes possible from television culture than the
massive multiplayer online game. These games are typified by two central
characteristics. First, they offer a persistent game environment. That is, any
action taken or "object" created anywhere in the game world persists over time,
unless and until it is destroyed by some agent in the game; and it exists to
the same extent for all players. Second, the games are effectively massive
collaboration platforms for thousands, tens of thousands--or in the case of
Lineage, the most popular game in South Korea, more than four million--users.
These platforms therefore provide individual players with various contexts in
which to match their wits and skills with other human players. The computer
gaming environment provides a persistent relational database of the actions and
social interactions of players. The first games that became mass phenomena,
like Ultima Online or Everquest, started with an already richly instantiated
context. Designers of these games continue to play a large role in defining the
range of actions and relations feasible for players. The basic medieval themes,
the role of magic and weapons, and the types and ranges of actions that are
possible create much of the context, and [[pg 136]] therefore the types of
relationships pursued. Still, these games leave qualitatively greater room for
individual effort and personal taste in producing the experience, the
relationships, and hence the story line, relative to a television or movie
experience. Second Life, a newer game by Linden Labs, offers us a glimpse into
the next step in this genre of immersive entertainment. Like other massively
multiplayer online games, Second Life is a persistent collaboration platform
for its users. Unlike other games, however, Second Life offers only tools, with
no story line, stock objects, or any cultural or meaning-oriented context
whatsoever. Its users have created 99 percent of the objects in the game
environment. The medieval village was nothing but blank space when they
started. So was the flying vehicle design shop, the futuristic outpost, or the
university, where some of the users are offering courses in basic programming
skills and in-game design. Linden Labs charges a flat monthly subscription fee.
Its employees focus on building tools that enable users to do everything from
basic story concept down to the finest details of their own appearance and of
objects they use in the game world. The in-game human relationships are those
made by the users as they interact with each other in this immersive
entertainment experience. The game's relationship to its users is fundamentally
different from that of the movie or television studio. Movies and television
seek to control the entire experience--rendering the viewer inert, but
satisfied. Second Life sees the users as active makers of the entertainment
environment that they occupy, and seeks to provide them with the tools they
need to be so. The two models assume fundamentally different conceptions of
play. Whereas in front of the television, the consumer is a passive receptacle,
limited to selecting which finished good he or she will consume from a
relatively narrow range of options, in the world of Second Life, the individual
is treated as a fundamentally active, creative human being, capable of building
his or her own fantasies, alone and in affiliation with others.

Second Life and /Jedi Saga/ are merely examples, perhaps trivial ones, within
the entertainment domain. They represent a shift in possibilities open both to
human beings in the networked information economy and to the firms that sell
them the tools for becoming active creators and users of their information
environment. They are stark examples because of the centrality of the couch
potato as the image of human action in television culture. Their
characteristics are representative of the shift in the individual's role that
is typical of the networked information economy in general and of peer
production in particular. Linus Torvalds, the original creator of the Linux
kernel [[pg 137]] development community, was, to use Eric Raymond's
characterization, a designer with an itch to scratch. Peer-production projects
often are composed of people who want to do something in the world and turn to
the network to find a community of peers willing to work together to make that
wish a reality. Michael Hart had been working in various contexts for more than
thirty years when he--at first gradually, and more recently with increasing
speed--harnessed the contributions of hundreds of volunteers to Project
Gutenberg in pursuit of his goal to create a globally accessible library of
public domain e-texts. Charles Franks was a computer programmer from Las Vegas
when he decided he had a more efficient way to proofread those e-texts, and
built an interface that allowed volunteers to compare scanned images of
original texts with the e-texts available on Project Gutenberg. After working
independently for a couple of years, he joined forces with Hart. Franks's
facility now clears the volunteer work of more than one thousand proofreaders,
who proof between two hundred and three hundred books a month. Each of the
thousands of volunteers who participate in free software development projects,
in /Wikipedia/, in the Open Directory Project, or in any of the many other
peer-production projects, is living some version, as a major or minor part of
their lives, of the possibilities captured by the stories of a Linus Torvalds,
a Michael Hart, or /The Jedi Saga/. Each has decided to take advantage of some
combination of technical, organizational, and social conditions within which we
have come to live, and to become an active creator in his or her world, rather
than merely to accept what was already there. The belief that it is possible to
make something valuable happen in the world, and the practice of actually
acting on that belief, represent a qualitative improvement in the condition of
individual freedom. They mark the emergence of new practices of self-directed
agency as a lived experience, going beyond mere formal permissibility and
theoretical possibility.

Our conception of autonomy has not only been forged in the context of the rise
of the democratic, civil rights?respecting state over its major competitors as
a political system. In parallel, we have occupied the context of the increasing
dominance of market-based industrial economy over its competitors. The culture
we have developed over the past century is suffused with images that speak of
the loss of agency imposed by that industrial economy. No cultural image better
captures the way that mass industrial production reduced workers to cogs and
consumers to receptacles than the one-dimensional curves typical of welfare
economics--those that render human beings as mere production and demand
functions. Their cultural, if [[pg 138]] not intellectual, roots are in
Fredrick Taylor's Theory of Scientific Management: the idea of abstracting and
defining all motions and actions of employees in the production process so that
all the knowledge was in the system, while the employees were barely more than
its replaceable parts. Taylorism, ironically, was a vast improvement over the
depredations of the first industrial age, with its sweatshops and child labor.
It nonetheless resolved into the kind of mechanical existence depicted in
Charlie Chaplin's tragic-comic portrait, Modern Times. While the grind of
industrial Taylorism seems far from the core of the advanced economies, shunted
as it is now to poorer economies, the basic sense of alienation and lack of
effective agency persists. Scott Adams's Dilbert comic strip, devoted to the
life of a white-collar employee in a nameless U.S. corporation, thoroughly
alienated from the enterprise, crimped by corporate hierarchy, resisting in all
sorts of ways-- but trapped in a cubicle--powerfully captures this sense for
the industrial information economy in much the same way that Chaplin's Modern
Times did for the industrial economy itself.

In the industrial economy and its information adjunct, most people live most of
their lives within hierarchical relations of production, and within relatively
tightly scripted possibilities after work, as consumers. It did not necessarily
have to be this way. Michael Piore and Charles Sabel's Second Industrial Divide
and Roberto Mangabeira Unger's False Necessity were central to the emergence of
a "third way" literature that developed in the 1980s and 1990s to explore the
possible alternative paths to production processes that did not depend so
completely on the displacement of individual agency by hierarchical production
systems. The emergence of radically decentralized, nonmarket production
provides a new outlet for the attenuation of the constrained and constraining
roles of employees and consumers. It is not limited to Northern Italian artisan
industries or imagined for emerging economies, but is at the very heart of the
most advanced market economies. Peer production and otherwise decentralized
nonmarket production can alter the producer/consumer relationship with regard
to culture, entertainment, and information. We are seeing the emergence of the
user as a new category of relationship to information production and exchange.
Users are individuals who are sometimes consumers and sometimes producers. They
are substantially more engaged participants, both in defining the terms of
their productive activity and in defining what they consume and how they
consume it. In these two great domains of life--production and consumption,
work and play--the networked information economy promises to enrich individual
[[pg 139]] autonomy substantively by creating an environment built less around
control and more around facilitating action.

The emergence of radically decentralized nonmarket production in general and of
peer production in particular as feasible forms of action opens new classes of
behaviors to individuals. Individuals can now justifiably believe that they can
in fact do things that they want to do, and build things that they want to
build in the digitally networked environment, and that this pursuit of their
will need not, perhaps even cannot, be frustrated by insurmountable cost or an
alien bureaucracy. Whether their actions are in the domain of political
organization (like the organizers of MoveOn.org), or of education and
professional attainment (as with the case of Jim Cornish, who decided to create
a worldwide center of information on the Vikings from his fifth-grade
schoolroom in Gander, Newfoundland), the networked information environment
opens new domains for productive life that simply were not there before. In
doing so, it has provided us with new ways to imagine our lives as productive
human beings. Writing a free operating system or publishing a free encyclopedia
may have seemed quixotic a mere few years ago, but these are now far from
delusional. Human beings who live in a material and social context that lets
them aspire to such things as possible for them to do, in their own lives, by
themselves and in loose affiliation with others, are human beings who have a
greater realm for their agency. We can live a life more authored by our own
will and imagination than by the material and social conditions in which we
find ourselves. At least we can do so more effectively than we could until the
last decade of the twentieth century.

This new practical individual freedom, made feasible by the digital
environment, is at the root of the improvements I describe here for political
participation, for justice and human development, for the creation of a more
critical culture, and for the emergence of the networked individual as a more
fluid member of community. In each of these domains, the improvements in the
degree to which these liberal commitments are honored and practiced emerge from
new behaviors made possible and effective by the networked information economy.
These behaviors emerge now precisely because individuals have a greater degree
of freedom to act effectively, unconstrained by a need to ask permission from
anyone. It is this freedom that increases the salience of nonmonetizable
motivations as drivers of production. It is this freedom to seek out whatever
information we wish, to write about it, and to join and leave various projects
and associations with others that underlies [[pg 140]] the new efficiencies we
see in the networked information economy. These behaviors underlie the
cooperative news and commentary production that form the basis of the networked
public sphere, and in turn enable us to look at the world as potential
participants in discourse, rather than as potential viewers only. They are at
the root of making a more transparent and reflective culture. They make
possible the strategies I suggest as feasible avenues to assure equitable
access to opportunities for economic participation and to improve human
development globally.

Treating these new practical opportunities for action as improvements in
autonomy is not a theoretically unproblematic proposition. For all its
intuitive appeal and centrality, autonomy is a notoriously nebulous concept. In
particular, there are deep divisions within the literature as to whether it is
appropriate to conceive of autonomy in substantive terms--as Gerald Dworkin,
Joseph Raz, and Joel Feinberg most prominently have, and as I have here--or in
formal terms. Formal conceptions of autonomy are committed to assuming that all
people have the capacity for autonomous choice, and do not go further in
attempting to measure the degree of freedom people actually exercise in the
world in which they are in fact constrained by circumstances, both natural and
human. This commitment is not rooted in some stubborn unwillingness to
recognize the slings and arrows of outrageous fortune that actually constrain
our choices. Rather, it comes from the sense that only by treating people as
having these capacities and abilities can we accord them adequate respect as
free, rational beings, and avoid sliding into overbearing paternalism. As
Robert Post put it, while autonomy may well be something that needs to be
"achieved" as a descriptive matter, the "structures of social authority" will
be designed differently depending on whether or not individuals are treated as
autonomous. "From the point of view of the designer of the structure,
therefore, the presence or absence of autonomy functions as an axiomatic and
foundational principle."[^44] Autonomy theory that too closely aims to
understand the degree of autonomy people actually exercise under different
institutional arrangements threatens to form the basis of an overbearing
benevolence that would undermine the very possibility of autonomous action.

While the fear of an overbearing bureaucracy benevolently guiding us through
life toward becoming more autonomous is justifiable, the formal conception of
autonomy pays a high price in its bluntness as a tool to diagnose the autonomy
implications of policy. Given how we are: situated, [[pg 141]] context-bound,
messy individuals, it would be a high price to pay to lose the ability to
understand how law and policy actually affect whatever capacity we do have to
be the authors of our own life choices in some meaningful sense. We are
individuals who have the capacity to form beliefs and to change them, to form
opinions and plans and defend them--but also to listen to arguments and revise
our beliefs. We experience some decisions as being more free than others; we
mock or lament ourselves when we find ourselves trapped by the machine or the
cubicle, and we do so in terms of a sense of helplessness, a negation of
freedom, not only, or even primarily, in terms of lack of welfare; and we
cherish whatever conditions those are that we experience as "free" precisely
for that freedom, not for other reasons. Certainly, the concerns with an
overbearing state, whether professing benevolence or not, are real and
immediate. No one who lives with the near past of the totalitarianism of the
twentieth century or with contemporary authoritarianism and fundamentalism can
belittle these. But the great evils that the state can impose through formal
law should not cause us to adopt methodological commitments that would limit
our ability to see the many ways in which ordinary life in democratic societies
can nonetheless be more or less free, more or less conducive to individual
self-authorship.

If we take our question to be one concerned with diagnosing the condition of
freedom of individuals, we must observe the conditions of life from a
first-person, practical perspective--that is, from the perspective of the
person whose autonomy we are considering. If we accept that all individuals are
always constrained by personal circumstances both physical and social, then the
way to think about autonomy of human agents is to inquire into the relative
capacity of individuals to be the authors of their lives within the constraints
of context. From this perspective, whether the sources of constraint are
private actors or public law is irrelevant. What matters is the extent to which
a particular configuration of material, social, and institutional conditions
allows an individual to be the author of his or her life, and to what extent
these conditions allow others to act upon the individual as an object of
manipulation. As a means of diagnosing the conditions of individual freedom in
a given society and context, we must seek to observe the extent to which people
are, in fact, able to plan and pursue a life that can reasonably be described
as a product of their own choices. It allows us to compare different
conditions, and determine that a certain condition allows individuals to do
more for themselves, without asking permission from anyone. In this sense, we
can say that the conditions that enabled Cejas [[pg 142]] to make /Jedi Saga/
are conditions that made him more autonomous than he would have been without
the tools that made that movie possible. It is in this sense that the increased
range of actions we can imagine for ourselves in loose affiliation with
others--like creating a Project Gutenberg--increases our ability to imagine and
pursue life plans that would have been impossible in the recent past.

From the perspective of the implications of autonomy for how people act in the
digital environment, and therefore how they are changing the conditions of
freedom and justice along the various dimensions explored in these chapters,
this kind of freedom to act is central. It is a practical freedom sufficient to
sustain the behaviors that underlie the improvements in these other domains.
From an internal perspective of the theory of autonomy, however, this basic
observation that people can do more by themselves, alone or in loose
affiliation with others, is only part of the contribution of the networked
information economy to autonomy, and a part that will only be considered an
improvement by those who conceive of autonomy as a substantive concept. The
implications of the networked information economy for autonomy are, however,
broader, in ways that make them attractive across many conceptions of autonomy.
To make that point, however, we must focus more specifically on law as the
source of constraint, a concern common to both substantive and formal
conceptions of autonomy. As a means of analyzing the implications of law to
autonomy, the perspective offered here requires that we broaden our analysis
beyond laws that directly limit autonomy. We must also look to laws that
structure the conditions of action for individuals living within the ambit of
their effect. In particular, where we have an opportunity to structure a set of
core resources necessary for individuals to perceive the state of the world and
the range of possible actions, and to communicate their intentions to others,
we must consider whether the way we regulate these resources will create
systematic limitations on the capacity of individuals to control their own
lives, and in their susceptibility to manipulation and control by others. Once
we recognize that there cannot be a person who is ideally "free," in the sense
of being unconstrained or uncaused by the decisions of others, we are left to
measure the effects of all sorts of constraints that predictably flow from a
particular legal arrangement, in terms of the effect they have on the relative
role that individuals play in authoring their own lives. [[pg 143]]

AUTONOMY, PROPERTY, AND COMMONS
...............................

The first legal framework whose role is altered by the emergence of the
networked information economy is the property-like regulatory structure of
patents, copyrights, and similar exclusion mechanisms applicable to
information, knowledge, and culture. Property is usually thought in liberal
theory to enhance, rather than constrain, individual freedom, in two quite
distinct ways. First, it provides security of material context--that is, it
allows one to know with some certainty that some set of resources, those that
belong to her, will be available for her to use to execute her plans over time.
This is the core of Kant's theory of property, which relies on a notion of
positive liberty, the freedom to do things successfully based on life plans we
can lay for ourselves. Second, property and markets provide greater freedom of
action for the individual owner as compared both, as Marx diagnosed, to the
feudal arrangements that preceded them, and, as he decidedly did not but Hayek
did, to the models of state ownership and regulation that competed with them
throughout most of the twentieth century.

Markets are indeed institutional spaces that enable a substantial degree of
free choice. "Free," however, does not mean "anything goes." If John possesses
a car and Jane possesses a gun, a market will develop only if John is
prohibited from running Jane over and taking her gun, and also if Jane is
prohibited from shooting at John or threatening to shoot him if he does not
give her his car. A market that is more or less efficient will develop only if
many other things are prohibited to, or required of, one or both sides--like
monopolization or disclosure. Markets are, in other words, structured
relationships intended to elicit a particular datum--the comparative
willingness and ability of agents to pay for goods or resources. The most basic
set of constraints that structure behavior in order to enable markets are those
we usually call property. Property is a cluster of background rules that
determine what resources each of us has when we come into relations with
others, and, no less important, what "having" or "lacking" a resource entails
in our relations with these others. These rules impose constraints on who can
do what in the domain of actions that require access to resources that are the
subjects of property law. They are aimed to crystallize asymmetries of power
over resources, which then form the basis for exchanges--I will allow you to do
X, which I am asymmetrically empowered to do (for example, watch television
using this cable system), and you, in turn, will allow me to do Y, which you
are asymmetrically empowered to do (for example, receive payment [[pg 144]]
from your bank account). While a necessary precondition for markets, property
also means that choice in markets is itself not free of constraints, but is
instead constrained in a particular pattern. It makes some people more powerful
with regard to some things, and must constrain the freedom of action of others
in order to achieve this asymmetry.[^45]

Commons are an alternative form of institutional space, where human agents can
act free of the particular constraints required for markets, and where they
have some degree of confidence that the resources they need for their plans
will be available to them. Both freedom of action and security of resource
availability are achieved in very different patterns than they are in
property-based markets. As with markets, commons do not mean that anything
goes. Managing resources as commons does, however, mean that individuals and
groups can use those resources under different types of constraints than those
imposed by property law. These constraints may be social, physical, or
regulatory. They may make individuals more free or less so, in the sense of
permitting a greater or lesser freedom of action to choose among a range of
actions that require access to resources governed by them than would property
rules in the same resources. Whether having a particular type of resource
subject to a commons, rather than a property-based market, enhances freedom of
action and security, or harms them, is a context-specific question. It depends
on how the commons is structured, and how property rights in the resource would
have been structured in the absence of a commons. The public spaces in New York
City, like Central Park, Union Square, or any sidewalk, afford more people
greater freedom than does a private backyard--certainly to all but its owner.
Given the diversity of options that these public spaces make possible as
compared to the social norms that neighbors enforce against each other, they
probably offer more freedom of action than a backyard offers even to its owner
in many loosely urban and suburban communities. Swiss pastures or irrigation
districts of the type that Elinor Ostrom described as classic cases of
long-standing sustainable commons offer their participants security of holdings
at least as stable as any property system, but place substantial traditional
constraints on who can use the resources, how they can use them, and how, if at
all, they can transfer their rights and do something completely different.
These types of commons likely afford their participants less, rather than more,
freedom of action than would have been afforded had they owned the same
resource in a market-alienable property arrangement, although they retain
security in much the same way. Commons, like the air, the sidewalk, the road
and highway, the [[pg 145]] ocean, or the public beach, achieve security on a
very different model. I can rely on the resources so managed in a
probabilistic, rather than deterministic sense. I can plan to meet my friends
for a picnic in the park, not because I own the park and can direct that it be
used for my picnic, but because I know there will be a park, that it is free
for me to use, and that there will be enough space for us to find a corner to
sit in. This is also the sort of security that allows me to plan to leave my
house at some hour, and plan to be at work at some other hour, relying not on
owning the transportation path, but on the availability to me of the roads and
highways on symmetric terms to its availability to everyone else. If we look
more closely, we will see that property and markets also offer only a
probabilistic security of context, whose parameters are different--for example,
the degree of certainty we have as to whether the resource we rely on as our
property will be stolen or damaged, whether it will be sufficient for what we
need, or if we need more, whether it will be available for sale and whether we
will be able to afford it.

Like property and markets, then, commons provide both freedom of action and
security of context. They do so, however, through the imposition of different
constraints than do property and market rules. In particular, what typifies all
these commons in contradistinction to property is that no actor is empowered by
law to act upon another as an object of his or her will. I can impose
conditions on your behavior when you are walking on my garden path, but I have
no authority to impose on you when you walk down the sidewalk. Whether one or
the other of the two systems, used exclusively, will provide "greater freedom"
in some aggregate sense is not a priori determinable. It will depend on the
technical characteristics of the resource, the precise contours of the rules
of, respectively, the proprietary market and the commons, and the distribution
of wealth in society. Given the diversity of resources and contexts, and the
impossibility of a purely "anything goes" absence of rules for either system,
some mix of the two different institutional frameworks is likely to provide the
greatest diversity of freedom to act in a material context. This diversity, in
turn, enables the greatest freedom to plan action within material contexts,
allowing individuals to trade off the availabilities of, and constraints on,
different resources to forge a context sufficiently provisioned to enable them
to execute their plans, while being sufficiently unregulated to permit them to
do so. Freedom inheres in diversity of constraint, not in the optimality of the
balance of freedom and constraint represented by any single institutional
arrangement. It is the diversity of constraint that allows individuals to plan
to live out different [[pg 146]] portions and aspects of their lives in
different institutional contexts, taking advantage of the different degrees of
freedom and security they make possible.

In the context of information, knowledge, and culture, because of the
nonrivalry of information and its characteristic as input as well as output of
the production process, the commons provides substantially greater security of
context than it does when material resources, like parks or roadways, are at
stake. Moreover, peer production and the networked information economy provide
an increasingly robust source of new information inputs. This reduces the risk
of lacking resources necessary to create new expressions or find out new
things, and renders more robust the freedom to act without being susceptible to
constraint from someone who holds asymmetrically greater power over the
information resources one needs. As to information, then, we can say with a
high degree of confidence that a more expansive commons improves individual
autonomy, while enclosure of the public domain undermines it. This is less
determinate with communications systems. Because computers and network
connections are rival goods, there is less certainty that a commons will
deliver the required resources. Under present conditions, a mixture of
commons-based and proprietary communications systems is likely to improve
autonomy. If, however, technological and social conditions change so that, for
example, sharing on the model of peer-to-peer networks, distributed
computation, or wireless mesh networks will be able to offer as dependable a
set of communications and computation resources as the Web offers information
and knowledge resources, the relative attractiveness of commons-oriented
communications policies will increase from the perspective of autonomy.

AUTONOMY AND THE INFORMATION ENVIRONMENT
........................................

The structure of our information environment is constitutive of our autonomy,
not only functionally significant to it. While the capacity to act free of
constraints is most immediately and clearly changed by the networked
information economy, information plays an even more foundational role in our
very capacity to make and pursue life plans that can properly be called our
own. A fundamental requirement of self-direction is the capacity to perceive
the state of the world, to conceive of available options for action, to connect
actions to consequences, to evaluate alternative outcomes, and to [[pg 147]]
decide upon and pursue an action accordingly. Without these, no action, even if
mechanically self-directed in the sense that my brain consciously directs my
body to act, can be understood as autonomous in any normatively interesting
sense. All of the components of decision making prior to action, and those
actions that are themselves communicative moves or require communication as a
precondition to efficacy, are constituted by the information and communications
environment we, as agents, occupy. Conditions that cause failures at any of
these junctures, which place bottlenecks, failures of communication, or provide
opportunities for manipulation by a gatekeeper in the information environment,
create threats to the autonomy of individuals in that environment. The shape of
the information environment, and the distribution of power within it to control
information flows to and from individuals, are, as we have seen, the contingent
product of a combination of technology, economic behavior, social patterns, and
institutional structure or law.

In 1999, Cisco Systems issued a technical white paper, which described a new
router that the company planned to sell to cable broadband providers. In
describing advantages that these new "policy routers" offer cable providers,
the paper explained that if the provider's users want to subscribe to a service
that "pushes" information to their computer: "You could restrict the incoming
push broadcasts as well as subscribers' outgoing access to the push site to
discourage its use. At the same time, you could promote your own or a partner's
services with full speed features to encourage adoption of your services."[^46]

In plain English, the broadband provider could inspect the packets flowing to
and from a customer, and decide which packets would go through faster and more
reliably, and which would slow down or be lost. Its engineering purpose was to
improve quality of service. However, it could readily be used to make it harder
for individual users to receive information that they want to subscribe to, and
easier for them to receive information from sites preferred by the
provider--for example, the provider's own site, or sites of those who pay the
cable operator for using this function to help "encourage" users to adopt their
services. There are no reports of broadband providers using these capabilities
systematically. But occasional events, such as when Canada's second largest
telecommunications company blocked access for all its subscribers and those of
smaller Internet service providers that relied on its network to the website of
the Telecommunications Workers Union in 2005, suggest that the concern is far
from imaginary. [[pg 148]]

It is fairly clear that the new router increases the capacity of cable
operators to treat their subscribers as objects, and to manipulate their
actions in order to make them act as the provider wills, rather than as they
would have had they had perfect information. It is less obvious whether this is
a violation of, or a decrease in, the autonomy of the users. At one extreme,
imagine the home as a black box with no communications capabilities save
one--the cable broadband connection. Whatever comes through that cable is, for
all practical purposes, "the state of the world," as far as the inhabitants of
that home know. In this extreme situation, the difference between a completely
neutral pipe that carries large amounts of information indiscriminately, and a
pipe finely controlled by the cable operator is a large one, in terms of the
autonomy of the home's inhabitants. If the pipe is indiscriminate, then the
choices of the users determine what they know; decisions based on that
knowledge can be said to be autonomous, at least to the extent that whether
they are or are not autonomous is a function of the state of the agent's
knowledge when forming a decision. If the pipe is finely controlled and
purposefully manipulated by the cable operator, by contrast, then decisions
that individuals make based on the knowledge they acquire through that pipe are
substantially a function of the choices of the controller of the pipe, not of
the users. At the other extreme, if each agent has dozens of alternative
channels of communication to the home, and knows how the information flow of
each one is managed, then the introduction of policy routers into one or some
of those channels has no real implications for the agent's autonomy. While it
may render one or more channels manipulable by their provider, the presence of
alternative, indiscriminate channels, on the one hand, and of competition and
choice among various manipulated channels, on the other hand, attenuates the
extent to which the choices of the provider structure the universe of
information within which the individual agent operates. The provider no longer
can be said to shape the individual's choices, even if it tries to shape the
information environment observable through its channel with the specific intent
of manipulating the actions of users who view the world through its pipe. With
sufficient choice among pipes, and sufficient knowledge about the differences
between pipes, the very choice to use the manipulated pipe can be seen as an
autonomous act. The resulting state of knowledge is self-selected by the user.
Even if that state of knowledge then is partial and future actions constrained
by it, the limited range of options is itself an expression of the user's
autonomy, not a hindrance on it. For example, consider the following: Odysseus
and his men mix different [[pg 149]] forms of freedom and constraint in the
face of the Sirens. Odysseus maintains his capacity to acquire new information
by leaving his ears unplugged, but binds himself to stay on the ship by having
his men tie him to the mast. His men choose the same course at the same time,
but bind themselves to the ship by having Odysseus stop their ears with wax, so
that they do not get the new information--the siren songs--that might change
their minds and cause them not to stay the course. Both are autonomous when
they pass by the Sirens, though both are free only because of their current
incapacity. Odysseus's incapacity to jump into the water and swim to the Sirens
and his men's incapacity to hear the siren songs are a result of their
autonomously chosen past actions.

The world we live in is neither black box nor cornucopia of well-specified
communications channels. However, characterizing the range of possible
configurations of the communications environment we occupy as lying on a
spectrum from one to the other provides us with a framework for describing the
degree to which actual conditions of a communications environment are conducive
to individual autonomy. More important perhaps, it allows us to characterize
policy and law that affects the communications environment as improving or
undermining individual autonomy. Law can affect the range of channels of
communications available to individuals, as well as the rules under which they
are used. How many communications channels and sources of information can an
individual receive? How many are available for him or her to communicate with
others? Who controls these communications channels? What does control over the
communications channels to an agent entail? What can the controller do, and
what can it not? All of these questions are the subject of various forms of
policy and law. Their implications affect the degree of autonomy possessed by
individuals operating with the institutional-technical-economic framework thus
created.

There are two primary types of effects that information law can have on
personal autonomy. The first type is concerned with the relative capacity of
some people systematically to constrain the perceptions or shape the
preferences of others. A law that systematically gives some people the power to
control the options perceived by, or the preferences of, others, is a law that
harms autonomy. Government regulation of the press and its propaganda that
attempts to shape its subjects' lives is a special case of this more general
concern. This concern is in some measure quantitative, in the sense that a
greater degree of control to which one is subject is a greater offense to
autonomy. More fundamentally, a law that systematically makes one adult [[pg
150]] susceptible to the control of another offends the autonomy of the former.
Law has created the conditions for one person to act upon another as an object.
This is the nonpragmatic offense to autonomy committed by abortion regulations
upheld in /Planned Parenthood v. Casey/ --such as requirements that women who
seek abortions listen to lectures designed to dissuade them. These were
justified by the plurality there, not by the claim that they did not impinge on
a woman's autonomy, but that the state's interest in the potential life of a
child trumps the autonomy of the pregnant woman.

The second type of effect that law can have on autonomy is to reduce
significantly the range and variety of options open to people in society
generally, or to certain classes of people. This is different from the concern
with government intervention generally. It is not focused on whether the state
prohibits these options, but only on whether the effect of the law is to remove
options. It is less important whether this effect is through prohibition or
through a set of predictable or observable behavioral adaptations among
individuals and organizations that, as a practical matter, remove these
options. I do not mean to argue for the imposition of restraints, in the name
of autonomy, on any lawmaking that results in a removal of any single option,
irrespective of the quantity and variety of options still open. Much of law
does that. Rather, the autonomy concern is implicated by laws that
systematically and significantly reduce the number, and more important,
impoverish the variety, of options open to people in the society for which the
law is passed.

"Number and variety" is intended to suggest two dimensions of effect on the
options open to an individual. The first is quantitative. For an individual to
author her own life, she must have a significant set of options from which to
choose; otherwise, it is the choice set--or whoever, if anyone, made it so--and
not the individual, that is governing her life. This quantitative dimension,
however, does not mean that more choices are always better, from the
individual's perspective. It is sufficient that the individual have some
adequate threshold level of options in order for him or her to exercise
substantive self-authorship, rather than being authored by circumstances.
Beyond that threshold level, additional options may affect one's welfare and
success as an autonomous agent, but they do not so constrain an individual's
choices as to make one not autonomous. Beyond quantitative adequacy, the
options available to an individual must represent meaningfully different paths,
not merely slight variations on a theme. Qualitatively, autonomy requires the
availability of options in whose adoption or rejection the individual [[pg
151]] can practice critical reflection and life choices. In order to sustain
the autonomy of a person born and raised in a culture with a set of socially
embedded conventions about what a good life is, one would want a choice set
that included at least some unconventional, non-mainstream, if you will,
critical options. If all the options one has--even if, in a purely quantitative
sense, they are "adequate"--are conventional or mainstream, then one loses an
important dimension of self-creation. The point is not that to be truly
autonomous one necessarily must be unconventional. Rather, if self-governance
for an individual consists in critical reflection and re-creation by making
choices over the course of his life, then some of the options open must be
different from what he would choose simply by drifting through life, adopting a
life plan for no reason other than that it is accepted by most others. A person
who chooses a conventional life in the presence of the option to live otherwise
makes that conventional life his or her own in a way that a person who lives a
conventional life without knowing about alternatives does not.

As long as our autonomy analysis of information law is sensitive to these two
effects on information flow to, from, and among individuals and organizations
in the regulated society, it need not conflict with the concerns of those who
adopt the formal conception of autonomy. It calls for no therapeutic agenda to
educate adults in a wide range of options. It calls for no one to sit in front
of educational programs. It merely focuses on two core effects that law can
have through the way it structures the relationships among people with regard
to the information environment they occupy. If a law--passed for any reason
that may or may not be related to autonomy concerns--creates systematic shifts
of power among groups in society, so that some have a greater ability to shape
the perceptions of others with regard to available options, consequences of
action, or the value of preferences, then that law is suspect from an autonomy
perspective. It makes the choices of some people less their own and more
subject to manipulation by those to whom the law gives the power to control
perceptions. Furthermore, a law that systematically and severely limits the
range of options known to individuals is one that imposes a normative price, in
terms of autonomy, for whatever value it is intended to deliver. As long as the
focus of autonomy as an institutional design desideratum is on securing the
best possible information flow to the individual, the designer of the legal
structure need not assume that individuals are not autonomous, or have failures
of autonomy, in order to serve autonomy. All the designer need assume is that
individuals [[pg 152]] will not act in order to optimize the autonomy of their
neighbors. Law then responds by avoiding institutional designs that facilitate
the capacity of some groups of individuals to act on others in ways that are
systematically at the expense of the ability of those others to control their
own lives, and by implementing policies that predictably diversify the set of
options that all individuals are able to see as open to them.

Throughout most of the 1990s and currently, communications and information
policy around the globe was guided by a wish to "let the private sector lead,"
interpreted in large measure to mean that various property and property-like
regulatory frameworks should be strengthened, while various regulatory
constraints on property-like rights should be eased. The drive toward
proprietary, market-based provisioning of communications and information came
from disillusionment with regulatory systems and state-owned communications
networks. It saw the privatization of national postal, telephone, and telegraph
authorities (PTTs) around the world. Even a country with a long tradition of
state-centric communications policy, like France, privatized much of its
telecommunications systems. In the United States, this model translated into
efforts to shift telecommunications from the regulated monopoly model it
followed throughout most of the twentieth century to a competitive market, and
to shift Internet development from being primarily a government-funded
exercise, as it had been from the late 1960s to the mid 1990s, to being purely
private property, market based. This model was declared in the Clinton
administration's 1993 National Information Infrastructure: Agenda for Action,
which pushed for privatization of Internet deployment and development. It was
the basis of that administration's 1995 White Paper on Intellectual Property,
which mapped the most aggressive agenda ever put forward by any American
administration in favor of perfect enclosure of the public domain; and it was
in those years when the Federal Communications Commission (FCC) first
implemented spectrum auctions aimed at more thorough privatization of wireless
communications in the United States. The general push for stronger intellectual
property rights and more marketcentric telecommunications systems also became a
central tenet of international trade regimes, pushing similar policies in
smaller and developing economies.

The result of the push toward private provisioning and deregulation has led to
the emergence of a near-monopolistic market structure for wired physical
broadband services. By the end of 2003, more than 96 percent of homes and small
offices in the United States that had any kind of "high-speed" [[pg 153]]
Internet services received their service from either their incumbent cable
operator or their incumbent local telephone company. If one focuses on the
subset of these homes and offices that get service that provides more
substantial room for autonomous communicative action--that is, those that have
upstream service at high-speed, enabling them to publish and participate in
online production efforts and not simply to receive information at high
speeds--the picture is even more dismal. Less than 2 percent of homes and small
offices receive their broadband connectivity from someone other than their
cable carrier or incumbent telephone carrier. More than 83 percent of these
users get their access from their cable operator. Moreover, the growth rate in
adoption of cable broadband and local telephone digital subscriber line (DSL)
has been high and positive, whereas the growth rate of the few competing
platforms, like satellite broadband, has been stagnant or shrinking. The
proprietary wired environment is gravitating toward a high-speed connectivity
platform that will be either a lopsided duopoly, or eventually resolve into a
monopoly platform.[^47] These owners are capable, both technically and legally,
of installing the kind of policy routers with which I opened the discussion of
autonomy and information law--routers that would allow them to speed up some
packets and slow down or reject others in ways intended to shape the universe
of information available to users of their networks.

The alternative of building some portions of our telecommunications and
information production and exchange systems as commons was not understood in
the mid-1990s, when the policy that resulted in this market structure for
communications was developed. As we saw in chapter 3, however, wireless
communications technology has progressed to the point where it is now possible
for users to own equipment that cooperates in mesh networks to form a
"last-mile" infrastructure that no one other than the users own. Radio networks
can now be designed so that their capital structure more closely approximates
the Internet and personal computer markets, bringing with it a greater scope
for commons-based peer production of telecommunications infrastructure.
Throughout most of the twentieth century, wireless communications combined
high-cost capital goods (radio transmitters and antennae towers) with cheaper
consumer goods (radio receivers), using regulated proprietary infrastructure,
to deliver a finished good of wireless communications on an industrial model.
Now WiFi is marking the possibility of an inversion of the capital structure of
wireless communication. We see end-user equipment manufacturers like Intel,
Cisco, and others producing [[pg 154]] and selling radio "transceivers" that
are shareable goods. By using ad hoc mesh networking techniques, some early
versions of which are already being deployed, these transceivers allow their
individual owners to cooperate and coprovision their own wireless
communications network, without depending on any cable carrier or other wired
provider as a carrier of last resort. Almost the entire debate around spectrum
policy and the relative merits of markets and commons in wireless policy is
conducted today in terms of efficiency and innovation. A common question these
days is which of the two approaches will lead to greater growth of wireless
communications capacity and will more efficiently allocate the capacity we
already have. I have contributed my fair share of this form of analysis, but
the question that concerns us here is different. We must ask what, if any, are
the implications of the emergence of a feasible, sustainable model of a
commons-based physical infrastructure for the first and last mile of the
communications environment, in terms of individual autonomy?

The choice between proprietary and commons-based wireless data networks takes
on new significance in light of the market structure of the wired network, and
the power it gives owners of broadband networks to control the information flow
into the vast majority of homes. Commons-based wireless systems become the
primary legal form of communications capacity that does not systematically
subject its users to manipulation by an infrastructure owner.

Imagine a world with four agents--A, B, C, and D--connected to each other by a
communications network. Each component, or route, of the network could be owned
or unowned. If all components are unowned, that is, are organized as a commons,
each agent has an equal privilege to use any component of the network to
communicate with any other agent. If all components are owned, the owner of any
network component can deny to any other agent use of that network component to
communicate with anyone else. This translates in the real world into whether or
not there is a "spectrum owner" who "owns" the link between any two users, or
whether the link is simply a consequence of the fact that two users are
communicating with each other in a way that no one has a right to prevent them
from doing.

In this simple model, if the network is unowned, then for any communication all
that is required is a willing sender and a willing recipient. No third agent
gets a say as to whether any other pair will communicate with each other. Each
agent determines independently of the others whether to [[pg 155]] participate
in a communicative exchange, and communication occurs whenever all its
participants, and only they, agree to communicate with each other. For example,
A can exchange information with B, as long as B consents. The only person who
has a right to prevent A from receiving information from, or sending
information to, B, is B, in the exercise of B's own autonomous choice whether
to change her information environment. Under these conditions, neither A nor B
is subject to control of her information environment by others, except where
such control results from denying her the capacity to control the information
environment of another. If all network components are owned, on the other hand,
then for any communication there must be a willing sender, a willing recipient,
and a willing infrastructure owner. In a pure property regime, infrastructure
owners have a say over whether, and the conditions under which, others in their
society will communicate with each other. It is precisely the power to prevent
others from communicating that makes infrastructure ownership a valuable
enterprise: One can charge for granting one's permission to communicate. For
example, imagine that D owns all lines connecting A to B directly or through D,
and C owns all lines connecting A or B to C. As in the previous scenario, A
wishes to exchange information with B. Now, in addition to B, A must obtain
either C's or D's consent. A now functions under two distinct types of
constraint. The first, as before, is a constraint imposed by B's autonomy: A
cannot change B's information environment (by exchanging information with her)
without B's consent. The second constraint is that A must persuade an owner of
whatever carriage medium connects A to B to permit A and B to communicate. The
communication is not sent to or from C or D. It does not change C's or D's
information environment, and that is not A's intention. C and D's ability to
consent or withhold consent is not based on the autonomy principle. It is
based, instead, on an instrumental calculus: namely, that creating such
property rights in infrastructure will lead to the right incentives for the
deployment of infrastructure necessary for A and B to communicate in the first
place.

Now imagine that D owns the entire infrastructure. If A wants to get
information from B or to communicate to C in order to persuade C to act in a
way that is beneficial to A, A needs D's permission. D may grant or withhold
permission, and may do so either for a fee or upon the imposition of conditions
on the communication. Most significantly, D can choose to prevent anyone from
communicating with anyone else, or to expose each participant to the
communications of only some, but not all, members of [[pg 156]] society. This
characteristic of her ownership gives D the power to shape A's information
environment by selectively exposing A to information in the form of
communications from others. Most commonly, we might see this where D decides
that B will pay more if all infrastructure is devoted to permitting B to
communicate her information to A and C, rather than any of it used to convey
A's statements to C. D might then refuse to carry A's message to C and permit
only B to communicate to A and C. The point is that from A's perspective, A is
dependent upon D's decisions as to what information can be carried on the
infrastructure, among whom, and in what directions. To the extent of that
dependence, A's autonomy is compromised. We might call the requirement that D
can place on A as a precondition to using the infrastructure an "influence
exaction."

The magnitude of the negative effect on autonomy, or of the influence exaction,
depends primarily on (a) the degree to which it is hard or easy to get around
D's facility, and (b) the degree of transparency of the exaction. Compare, for
example, Cisco's policy router for cable broadband, which allows the cable
operator to speed up and slow down packets based on its preferences, to
Amazon's brief experiment in 1998-1999 with accepting undisclosed payments from
publishers in exchange for recommending their books. If a cable operator
programs its routers to slow down packets of competitors, or of information
providers that do not pay, this practice places a significant exaction on
users. First, the exaction is entirely nontransparent. There are many reasons
that different sites load at different speeds, or even fail to load altogether.
Users, the vast majority of whom are unaware that the provider could, if it
chose, regulate the flow of information to them, will assume that it is the
target site that is failing, not that their own service provider is
manipulating what they can see. Second, there is no genuine work-around. Cable
broadband covers roughly two-thirds of the home market, in many places without
alternative; and where there is an alternative, there is only one--the
incumbent telephone company. Without one of these noncompetitive infrastructure
owners, the home user has no broadband access to the Internet. In Amazon's
case, the consumer outrage when the practice was revealed focused on the lack
of transparency. Users had little objection to clearly demarcated
advertisement. The resistance was to the nontransparent manipulation of the
recommendation system aimed at causing the consumers to act in ways consistent
with Amazon's goals, rather than their own. In that case, however, there were
alternatives. There are many different places from which to find book reviews
and recommendations, and [[pg 157]] at the time, barnesandnoble.com was already
available as an online bookseller--and had not significantly adopted similar
practices. The exaction was therefore less significant. Moreover, once the
practice was revealed, Amazon publicly renounced it and began to place
advertisements in a clearly recognizable separate category. The lesson was not
lost on others. When Google began at roughly the same time as a search engine,
it broke with the then common practice of selling search-result location. When
the company later introduced advertised links, it designed its interface to
separate out clearly the advertisements from the algorithm-based results, and
to give the latter more prominent placement than the former. This does not
necessarily mean that any search engine that accepts payments for linking is
necessarily bad. A search engine like Overture, which explicitly and publicly
returns results ranked according to which, among the sites retrieved, paid
Overture the most, has its own value for consumers looking for commercial
sites. A transparent, nonmonopolistic option of this sort increases, rather
than decreases, the freedom of users to find the information they want and act
on it. The problem would be with search engines that mix the two strategies and
hide the mix, or with a monopolistic search engine.

Because of the importance of the possibility to work around the owned
infrastructure, the degree of competitiveness of any market in such
infrastructure is important. Before considering the limits of even competitive
markets by comparison to commons, however, it is important to recognize that a
concern with autonomy provides a distinct justification for the policy concern
with media concentration. To understand the effects of concentration, we can
think of freedom from constraint as a dimension of welfare. Just as we have no
reason to think that in a concentrated market, total welfare, let alone
consumer welfare, will be optimal, we also have no reason to think that a
component of welfare--freedom from constraint as a condition to access one's
communicative environment--will be optimal. Moreover, when we use a "welfare"
calculus as a metaphor for the degree of autonomy users have in the system, we
must optimize not total welfare, as we do in economic analysis, but only what
in the metaphorical calculus would count as "consumer surplus." In the domain
of influence and autonomy, only "consumer surplus" counts as autonomy
enhancing. "Producer surplus," the degree of successful imposition of influence
on others as a condition of service, translates in an autonomy calculus into
control exerted by some people (providers) over others (consumers). It reflects
the successful negation of autonomy. The monopoly case therefore presents a new
normative [[pg 158]] dimension of the well-known critiques of media
concentration. Why, however, is this not solely an analysis of media
concentration? Why does a competitive market in infrastructure not solve the
autonomy deficit of property?

If we make standard assumptions of perfectly competitive markets and apply them
to our A-B-D example, one would think that the analysis must change. D no
longer has monopoly power. We would presume that the owners of infrastructure
would be driven by competition to allocate infrastructure to uses that users
value most highly. If one owner "charges" a high price in terms of conditions
imposed on users, say to forgo receiving certain kinds of speech uncongenial to
the owner, then the users will go to a competitor who does not impose that
condition. This standard market response is far from morally irrelevant if one
is concerned with autonomy. If, in fact, every individual can choose precisely
the package of influence exactions and the cash-to-influence trade-off under
which he or she is willing to communicate, then the autonomy deficit that I
suggest is created by property rights in communications infrastructure is
minimal. If all possible degrees of freedom from the influence of others are
available to autonomous individuals, then respecting their choices, including
their decisions to subject themselves to the influence of others in exchange
for releasing some funds so they are available for other pursuits, respects
their autonomy.

Actual competition, however, will not eliminate the autonomy deficit of
privately owned communications infrastructure, for familiar reasons. The most
familiar constraint on the "market will solve it" hunch is imposed by
transaction costs--in particular, information-gathering and negotiation costs.
Influence exactions are less easily homogenized than prices expressed in
currency. They will therefore be more expensive to eliminate through
transactions. Some people value certain kinds of information lobbed at them
positively; others negatively. Some people are more immune to suggestion,
others less. The content and context of an exaction will have a large effect on
its efficacy as a device for affecting the choices of the person subject to its
influence, and these could change from communication to communication for the
same person, let alone for different individuals. Both users and providers have
imperfect information about the users' susceptibility to manipulated
information flows; they have imperfect information about the value that each
user would place on being free of particular exactions. Obtaining the
information necessary to provide a good fit for each consumer's preferences
regarding the right influence-to-cash ratio for a given service [[pg 159]]
would be prohibitively expensive. Even if the information were obtained,
negotiating the precise cash-to-influence trade-off would be costly.
Negotiation also may fail because of strategic behavior. The consumer's ideal
outcome is to labor under an exaction that is ineffective. If the consumer can
reduce the price by submitting to constraints on communication that would
affect an average consumer, but will not change her agenda or subvert her
capacity to author her life, she has increased her welfare without compromising
her autonomy. The vendor's ideal outcome, however, is that the influence
exaction be effective--that it succeed in changing the recipient's preferences
or her agenda to fit those of the vendor. The parties, therefore, will hide
their true beliefs about whether a particular condition to using proprietary
infrastructure is of a type that is likely to be effective at influencing the
particular recipient. Under anything less than a hypothetical and practically
unattainable perfect market in communications infrastructure services, users of
a proprietary infrastructure will face a less-than-perfect menu of influence
exactions that they must accept before they can communicate using owned
infrastructure.

Adopting a regulatory framework under which all physical means of communication
are based on private property rights in the infrastructure will therefore
create a cost for users, in terms of autonomy. This cost is the autonomy
deficit of exclusive reliance on proprietary models. If ownership of
infrastructure is concentrated, or if owners can benefit from exerting
political, personal, cultural, or social influence over others who seek access
to their infrastructure, they will impose conditions on use of the
infrastructure that will satisfy their will to exert influence. If agents other
than owners (advertisers, tobacco companies, the U.S. drug czar) value the
ability to influence users of the infrastructure, then the influence-exaction
component of the price of using the infrastructure will be sold to serve the
interests of these third parties. To the extent that these influence exactions
are effective, a pure private-property regime for infrastructure allows owners
to constrain the autonomy of users. The owners can do this by controlling and
manipulating the users' information environment to shape how they perceive
their life choices in ways that make them more likely to act in a manner that
the owners prefer.

The traditional progressive or social-democratic response to failures of
property-based markets has been administrative regulation. In the area of
communications, these responses have taken the form of access regulations--
ranging from common carriage to more limited right-of-reply, fairness [[pg
160]] doctrine-type regulations. Perfect access regulation--in particular,
common-carrier obligations--like a perfectly competitive market, could in
principle alleviate the autonomy deficit of property. Like markets, however,
actual regulation that limits the powers that go with property in
infrastructure suffers from a number of limitations. First, the institutional
details of the common-carriage regime can skew incentives for what types of
communications will be available, and with what degree of freedom. If we
learned one thing from the history of American communications policy in the
twentieth century, it is that regulated entities are adept at shaping their
services, pricing, and business models to take advantage of every weakness in
the common-carriage regulatory system. They are even more adept at influencing
the regulatory process to introduce lucrative weaknesses into the regulatory
system. At present, cable broadband has succeeded in achieving a status almost
entirely exempt from access requirements that might mitigate its power to
control how the platform is used, and broadband over legacy telephone systems
is increasingly winning a parallel status of unregulated semi-monopoly. Second,
the organization that owns the infrastructure retains the same internal
incentives to control content as it would in the absence of common carriage and
will do so to the extent that it can sneak by any imperfections in either the
carriage regulations or their enforcement. Third, as long as the network is
built to run through a central organizational clearinghouse, that center
remains a potential point at which regulators can reassert control or delegate
to owners the power to prevent unwanted speech by purposefully limiting the
scope of the common-carriage requirements.

As a practical matter, then, if all wireless systems are based on property,
just like the wired systems are, then wireless will offer some benefits through
the introduction of some, albeit imperfect, competition. However, it will not
offer the autonomy-enhancing effects that a genuine diversity of constraint can
offer. If, on the other hand, policies currently being experimented with in the
United States do result in the emergence of a robust, sustainable wireless
communications infrastructure, owned and shared by its users and freely
available to all under symmetric technical constraints, it will offer a
genuinely alternative communications platform. It may be as technically good as
the wired platforms for all users and uses, or it may not. Nevertheless,
because of its radically distributed capitalization, and its reliance on
commons rendered sustainable by equipment-embedded technical protocols, rather
than on markets that depend on institutionally created asymmetric power over
communications, a commons-based wireless system will offer an [[pg 161]]
infrastructure that operates under genuinely different institutional
constraints. Such a system can become an infrastructure of first and last
resort for uses that would not fit the constraints of the proprietary market,
or for users who find the price-to-influence exaction bundles offered in the
market too threatening to their autonomy.

The emerging viability of commons-based strategies for the provisioning of
communications, storage, and computation capacity enables us to take a
practical, real world look at the autonomy deficit of a purely property-based
communications system. As we compare property to commons, we see that property,
by design, introduces a series of legal powers that asymmetrically enable
owners of infrastructure to exert influence over users of their systems. This
asymmetry is necessary for the functioning of markets. Predictably and
systematically, however, it allows one group of actors--owners--to act upon
another group of actors--consumers--as objects of manipulation. No single idiom
in contemporary culture captures this characteristic better than the term "the
market in eyeballs," used to describe the market in advertising slots. Commons,
on the other hand, do not rely on asymmetric constraints. They eliminate points
of asymmetric control over the resources necessary for effective communication,
thereby eliminating the legal bases of the objectification of others. These are
not spaces of perfect freedom from all constraints. However, the constraints
they impose are substantively different from those generated by either the
property system or by an administrative regulatory system. Their introduction
alongside proprietary networks therefore diversifies the constraints under
which individuals operate. By offering alternative transactional frameworks for
alternative information flows, these networks substantially and qualitatively
increase the freedom of individuals to perceive the world through their own
eyes, and to form their own perceptions of what options are open to them and
how they might evaluate alternative courses of action.

AUTONOMY, MASS MEDIA, AND NONMARKET INFORMATION PRODUCERS
.........................................................

The autonomy deficit of private communications and information systems is a
result of the formal structure of property as an institutional device and the
role of communications and information systems as basic requirements in the
ability of individuals to formulate purposes and plan actions to fit their
lives. The gains flow directly from the institutional characteristics of [[pg
162]] commons. The emergence of the networked information economy makes one
other important contribution to autonomy. It qualitatively diversifies the
information available to individuals. Information, knowledge, and culture are
now produced by sources that respond to a myriad of motivations, rather than
primarily the motivation to sell into mass markets. Production is organized in
any one of a myriad of productive organizational forms, rather than solely the
for-profit business firm. The supplementation of the profit motive and the
business organization by other motivations and organizational forms--ranging
from individual play to large-scale peer-production projects--provides not only
a discontinuously dramatic increase in the number of available information
sources but, more significantly, an increase in available information sources
that are qualitatively different from others.

Imagine three storytelling societies: the Reds, the Blues, and the Greens. Each
society follows a set of customs as to how they live and how they tell stories.
Among the Reds and the Blues, everyone is busy all day, and no one tells
stories except in the evening. In the evening, in both of these societies,
everyone gathers in a big tent, and there is one designated storyteller who
sits in front of the audience and tells stories. It is not that no one is
allowed to tell stories elsewhere. However, in these societies, given the time
constraints people face, if anyone were to sit down in the shade in the middle
of the day and start to tell a story, no one else would stop to listen. Among
the Reds, the storyteller is a hereditary position, and he or she alone decides
which stories to tell. Among the Blues, the storyteller is elected every night
by simple majority vote. Every member of the community is eligible to offer
him- or herself as that night's storyteller, and every member is eligible to
vote. Among the Greens, people tell stories all day, and everywhere. Everyone
tells stories. People stop and listen if they wish, sometimes in small groups
of two or three, sometimes in very large groups. Stories in each of these
societies play a very important role in understanding and evaluating the world.
They are the way people describe the world as they know it. They serve as
testing grounds to imagine how the world might be, and as a way to work out
what is good and desirable and what is bad and undesirable. The societies are
isolated from each other and from any other source of information.

Now consider Ron, Bob, and Gertrude, individual members of the Reds, Blues, and
Greens, respectively. Ron's perception of the options open to him and his
evaluation of these options are largely controlled by the hereditary
storyteller. He can try to contact the storyteller to persuade him to tell [[pg
163]] different stories, but the storyteller is the figure who determines what
stories are told. To the extent that these stories describe the universe of
options Ron knows about, the storyteller defines the options Ron has. The
storyteller's perception of the range of options largely will determine the
size and diversity of the range of options open to Ron. This not only limits
the range of known options significantly, but it also prevents Ron from
choosing to become a storyteller himself. Ron is subjected to the storyteller's
control to the extent that, by selecting which stories to tell and how to tell
them, the storyteller can shape Ron's aspirations and actions. In other words,
both the freedom to be an active producer and the freedom from the control of
another are constrained. Bob's autonomy is constrained not by the storyteller,
but by the majority of voters among the Blues. These voters select the
storyteller, and the way they choose will affect Bob's access to stories
profoundly. If the majority selects only a small group of entertaining,
popular, pleasing, or powerful (in some other dimension, like wealth or
political power) storytellers, then Bob's perception of the range of options
will be only slightly wider than Ron's, if at all. The locus of power to
control Bob's sense of what he can and cannot do has shifted. It is not the
hereditary storyteller, but rather the majority. Bob can participate in
deciding which stories can be told. He can offer himself as a storyteller every
night. He cannot, however, decide to become a storyteller independently of the
choices of a majority of Blues, nor can he decide for himself what stories he
will hear. He is significantly constrained by the preferences of a simple
majority. Gertrude is in a very different position. First, she can decide to
tell a story whenever she wants to, subject only to whether there is any other
Green who wants to listen. She is free to become an active producer except as
constrained by the autonomy of other individual Greens. Second, she can select
from the stories that any other Green wishes to tell, because she and all those
surrounding her can sit in the shade and tell a story. No one person, and no
majority, determines for her whether she can or cannot tell a story. No one can
unilaterally control whose stories Gertrude can listen to. And no one can
determine for her the range and diversity of stories that will be available to
her from any other member of the Greens who wishes to tell a story.

The difference between the Reds, on the one hand, and the Blues or Greens, on
the other hand, is formal. Among the Reds, only the storyteller may tell the
story as a matter of formal right, and listeners only have a choice of whether
to listen to this story or to no story at all. Among the [[pg 164]] Blues and
the Greens anyone may tell a story as a matter of formal right, and listeners,
as a matter of formal right, may choose from whom they will hear. The
difference between the Reds and the Blues, on the one hand, and the Greens, on
the other hand, is economic. In the former, opportunities for storytelling are
scarce. The social cost is higher, in terms of stories unavailable for hearing,
or of choosing one storyteller over another. The difference between the Blues
and the Greens, then, is not formal, but practical. The high cost of
communication created by the Blues' custom of listening to stories only in the
evening, in a big tent, together with everyone else, makes it practically
necessary to select "a storyteller" who occupies an evening. Since the stories
play a substantive role in individuals' perceptions of how they might live
their lives, that practical difference alters the capacity of individual Blues
and Greens to perceive a wide and diverse set of options, as well as to
exercise control over their perceptions and evaluations of options open for
living their lives and to exercise the freedom themselves to be storytellers.
The range of stories Bob is likely to listen to, and the degree to which he can
choose unilaterally whether he will tell or listen, and to which story, are
closer, as a practical matter, to those of Ron than to those of Gertrude.
Gertrude has many more stories and storytelling settings to choose from, and
many more instances where she can offer her own stories to others in her
society. She, and everyone else in her society, can be exposed to a wider
variety of conceptions of how life can and ought to be lived. This wider
diversity of perceptions gives her greater choice and increases her ability to
compose her own life story out of the more varied materials at her disposal.
She can be more self-authored than either Ron or Bob. This diversity
replicates, in large measure, the range of perceptions of how one might live a
life that can be found among all Greens, precisely because the storytelling
customs make every Green a potential storyteller, a potential source of
information and inspiration about how one might live one's life.

All this could sound like a morality tale about how wonderfully the market
maximizes autonomy. The Greens easily could sound like Greenbacks, rather than
like environmentalists staking out public parks as information commons.
However, this is not the case in the industrial information economy, where
media markets have high entry barriers and large economies of scale. It is
costly to start up a television station, not to speak of a network, a
newspaper, a cable company, or a movie distribution system. It is costly to
produce the kind of content delivered over these systems. Once production costs
or the costs of laying a network are incurred, the additional marginal [[pg
165]] cost of making information available to many users, or of adding users to
the network, is much smaller than the initial cost. This is what gives
information and cultural products and communications facilities supply-side
economies of scale and underlies the industrial model of producing them. The
result is that the industrial information economy is better stylized by the
Reds and Blues rather than by the Greens. While there is no formal limitation
on anyone producing and disseminating information products, the economic
realities limit the opportunities for storytelling in the mass-mediated
environment and make storytelling opportunities a scarce good. It is very
costly to tell stories in the mass-mediated environment. Therefore, most
storytellers are commercial entities that seek to sell their stories to the
audience. Given the discussion earlier in this chapter, it is fairly
straightforward to see how the Greens represent greater freedom to choose to
become an active producer of one's own information environment. It is similarly
clear that they make it exceedingly difficult for any single actor to control
the information flow to any other actor. We can now focus on how the story
provides a way of understanding the justification and contours of the third
focus of autonomy-respecting policy: the requirement that government not limit
the quantity and diversity of information available.

The fact that our mass-mediated environment is mostly commercial makes it more
like the Blues than the Reds. These outlets serve the tastes of the
majority--expressed in some combination of cash payment and attention to
advertising. I do not offer here a full analysis--covered so well by Baker in
Media, Markets, and Democracy--as to why mass-media markets do not reflect the
preferences of their audiences very well. Presented here is a tweak of an older
set of analyses of whether monopoly or competition is better in mass-media
markets to illustrate the relationship between markets, channels, and diversity
of content. In chapter 6, I describe in greater detail the SteinerBeebe model
of diversity and number of channels. For our purposes here, it is enough to
note that this model shows how advertiser-supported media tend to program
lowest-common-denominator programs, intended to "capture the eyeballs" of the
largest possible number of viewers. These media do not seek to identify what
viewers intensely want to watch, but tend to clear programs that are tolerable
enough to viewers so that they do not switch off their television. The presence
or absence of smaller-segment oriented television depends on the shape of
demand in an audience, the number of channels available to serve that audience,
and the ownership structure. The relationship between diversity of content and
diversity of structure or ownership [[pg 166]] is not smooth. It occurs in
leaps. Small increases in the number of outlets continue to serve large
clusters of low-intensity preferences--that is, what people find acceptable. A
new channel that is added will more often try to take a bite out of a large pie
represented by some lowest-commondenominator audience segment than to try to
serve a new niche market. Only after a relatively high threshold number of
outlets are reached do advertiser-supported media have sufficient reason to try
to capture much smaller and higher-intensity preference clusters--what people
are really interested in. The upshot is that if all storytellers in society are
profit maximizing and operate in a market, the number of storytellers and
venues matters tremendously for the diversity of stories told in a society. It
is quite possible to have very active market competition in how well the same
narrow set of stories are told, as opposed to what stories are told, even
though there are many people who would rather hear different stories
altogether, but who are in clusters too small, too poor, or too uncoordinated
to persuade the storytellers to change their stories rather than their props.

The networked information economy is departing from the industrial information
economy along two dimensions that suggest a radical increase in the number of
storytellers and the qualitative diversity of stories told. At the simplest
level, the cost of a channel is so low that some publication capacity is
becoming available to practically every person in society. Ranging from an
e-mail account, to a few megabytes of hosting capacity to host a subscriber's
Web site, to space on a peer-to-peer distribution network available for any
kind of file (like FreeNet or eDonkey), individuals are now increasingly in
possession of the basic means necessary to have an outlet for their stories.
The number of channels is therefore in the process of jumping from some
infinitesimally small fraction of the population--whether this fraction is
three networks or five hundred channels almost does not matter by
comparison--to a number of channels roughly equal to the number of users. This
dramatic increase in the number of channels is matched by the fact that the low
costs of communications and production enable anyone who wishes to tell a story
to do so, whether or not the story they tell will predictably capture enough of
a paying (or advertising-susceptible) audience to recoup production costs.
Self-expression, religious fervor, hobby, community seeking, political
mobilization, any one of the many and diverse reasons that might drive us to
want to speak to others is now a sufficient reason to enable us to do so in
mediated form to people both distant and close. The basic filter of
marketability has been removed, allowing anything [[pg 167]] that emerges out
of the great diversity of human experience, interest, taste, and expressive
motivation to flow to and from everyone connected to everyone else. Given that
all diversity within the industrial information economy needed to flow through
the marketability filter, the removal of that filter marks a qualitative
increase in the range and diversity of life options, opinions, tastes, and
possible life plans available to users of the networked information economy.

The image of everyone being equally able to tell stories brings, perhaps more
crisply than any other image, two critical objections to the attractiveness of
the networked information economy: quality and cacophony. The problem of
quality is easily grasped, but is less directly connected to autonomy. Having
many high school plays and pickup basketball games is not the same as having
Hollywood movies or the National Basketball Association (NBA). The problem of
quality understood in these terms, to the extent that the shift from industrial
to networked information production in fact causes it, does not represent a
threat to autonomy as much as a welfare cost of making the autonomy-enhancing
change. More troubling from the perspective of autonomy is the problem of
information overload, which is related to, but distinct from, production
quality. The cornucopia of stories out of which each of us can author our own
will only enhance autonomy if it does not resolve into a cacophony of
meaningless noise. How, one might worry, can a system of information production
enhance the ability of an individual to author his or her life, if it is
impossible to tell whether this or that particular story or piece of
information is credible, or whether it is relevant to the individual's
particular experience? Will individuals spend all their time sifting through
mounds of inane stories and fairy tales, instead of evaluating which life is
best for them based on a small and manageable set of credible and relevant
stories? None of the philosophical accounts of substantive autonomy suggests
that there is a linearly increasing relationship between the number of options
open to an individual--or in this case, perceivable by an individual--and that
person's autonomy. Information overload and decision costs can get in the way
of actually living one's autonomously selected life.

The quality problem is often raised in public discussions of the Internet, and
takes the form of a question: Where will high-quality information products,
like movies, come from? This form of the objection, while common, is
underspecified normatively and overstated descriptively. First, it is not at
all clear what might be meant by "quality," insofar as it is a characteristic
of [[pg 168]] information, knowledge, and cultural production that is
negatively affected by the shift from an industrial to a networked information
economy. Chapter 2 explains that information has always been produced in
various modalities, not only in market-oriented organizations and certainly not
in proprietary strategies. Political theory is not "better" along any
interesting dimension when written by someone aiming to maximize her own or her
publisher's commercial profits. Most of the commercial, proprietary online
encyclopedias are not better than /Wikipedia/ along any clearly observable
dimension. Moreover, many information and cultural goods are produced on a
relational model, rather than a packaged-goods model. The emergence of the
digitally networked environment does not much change their economics or
sustainability. Professional theatre that depends on live performances is an
example, as are musical performances. To the extent, therefore, that the
emergence of substantial scope for nonmarket, distributed production in a
networked information economy places pressure on "quality," it is quality of a
certain kind. The threatened desiderata are those that are uniquely attractive
about industrially produced mass-market products. The high-production-cost
Hollywood movie or television series are the threatened species. Even that
species is not entirely endangered, and the threat varies for different
industries, as explained in some detail in chapter 11. Some movies,
particularly those currently made for video release only, may well, in fact,
recede. However, truly high-production-value movies will continue to have a
business model through release windows other than home video distribution.
Independently, the pressure on advertising-supported television from
multichannel video-- cable and satellite--on the other hand, is pushing for
more low-cost productions like reality TV. That internal development in mass
media, rather than the networked information economy, is already pushing
industrial producers toward low-cost, low-quality productions. Moreover, as a
large section of chapter 7 illustrates, peer production and nonmarket
production are producing desirable public information--news and
commentary--that offer qualities central to democratic discourse. Chapter 8
discusses how these two forms of production provide a more transparent and
plastic cultural environment--both central to the individual's capacity for
defining his or her goals and options. What emerges in the networked
information environment, therefore, will not be a system for low-quality
amateur mimicry of existing commercial products. What will emerge is space for
much more expression, from diverse sources and of diverse qualities.
Freedom--the freedom to speak, but also to be free from manipulation and to be
cognizant [[pg 169]] of many and diverse options--inheres in this radically
greater diversity of information, knowledge, and culture through which to
understand the world and imagine how one could be.

Rejecting the notion that there will be an appreciable loss of quality in some
absolute sense does not solve the deeper problem of information overload, or
having too much information to be able to focus or act upon it. Having too much
information with no real way of separating the wheat from the chaff forms what
we might call the Babel objection. Individuals must have access to some
mechanism that sifts through the universe of information, knowledge, and
cultural moves in order to whittle them down to a manageable and usable scope.
The question then becomes whether the networked information economy, given the
human need for filtration, actually improves the information environment of
individuals relative to the industrial information economy. There are three
elements to the answer: First, as a baseline, it is important to recognize the
power that inheres in the editorial function. The extent to which information
overload inhibits autonomy relative to the autonomy of an individual exposed to
a well-edited information flow depends on how much the editor who whittles down
the information flow thereby gains power over the life of the user of the
editorial function, and how he or she uses that power. Second, there is the
question of whether users can select and change their editor freely, or whether
the editorial function is bundled with other communicative functions and sold
by service providers among which users have little choice. Finally, there is
the understanding that filtration and accreditation are themselves information
goods, like any other, and that they too can be produced on a commonsbased,
nonmarket model, and therefore without incurring the autonomy deficit that a
reintroduction of property to solve the Babel objection would impose.

Relevance filtration and accreditation are integral parts of all
communications. A communication must be relevant for a given sender to send to
a given recipient and relevant for the recipient to receive. Accreditation
further filters relevant information for credibility. Decisions of filtration
for purposes of relevance and accreditation are made with reference to the
values of the person filtering the information, not the values of the person
receiving the information. For instance, the editor of a cable network
newsmagazine decides whether a given story is relevant to send out. The owner
of the cable system decides whether it is, in the aggregate, relevant to its
viewers to see that newsmagazine on its system. Only if both so decide, does
each viewer [[pg 170]] get the residual choice of whether to view the story. Of
the three decisions that must coincide to mark the newsmagazine as relevant to
the viewer, only one is under the control of the individual recipient. And,
while the editor's choice might be perceived in some sense as inherent to the
production of the information, the cable operator's choice is purely a function
of its role as proprietor of the infrastructure. The point to focus on is that
the recipient's judgment is dependent on the cable operator's decision as to
whether to release the program. The primary benefit of proprietary systems as
mechanisms of avoiding the problem of information overload or the Babel
objection is precisely the fact that the individual cannot exercise his own
judgment as to all the programs that the cable operator--or other commercial
intermediary between someone who makes a statement and someone who might
receive it--has decided not to release.

As with any flow, control over a necessary passageway or bottleneck in the
course of a communication gives the person controlling that point the power to
direct the entire flow downstream from it. This power enables the provision of
a valuable filtration service, which promises the recipient that he or she will
not spend hours gazing at irrelevant materials. However, filtration only
enhances the autonomy of users if the editor's notions of relevance and quality
resemble those of the sender and the recipient. Imagine a recipient who really
wants to be educated about African politics, but also likes sports. Under
perfect conditions, he would seek out information on African politics most of
the time, with occasional searches for information on sports. The editor,
however, makes her money by selling advertising. For her, the relevant
information is whatever will keep the viewer's attention most closely on the
screen while maintaining a pleasantly acquisitive mood. Given a choice between
transmitting information about famine in Sudan, which she worries will make
viewers feel charitable rather than acquisitive, and transmitting a football
game that has no similar adverse effects, she will prefer the latter. The
general point should be obvious. For purposes of enhancing the autonomy of the
user, the filtering and accreditation function suffers from an agency problem.
To the extent that the values of the editor diverge from those of the user, an
editor who selects relevant information based on her values and plans for the
users does not facilitate user autonomy, but rather imposes her own preferences
regarding what should be relevant to users given her decisions about their life
choices. A parallel effect occurs with accreditation. An editor might choose to
treat as credible a person whose views or manner of presentation draw
audiences, rather than necessary [[pg 171]] the wisest or best-informed of
commentators. The wide range in quality of talking heads on television should
suffice as an example. The Babel objection may give us good reason to pause
before we celebrate the networked information economy, but it does not provide
us with reasons to celebrate the autonomy effects of the industrial information
economy.

The second component of the response to the Babel objection has to do with the
organization of filtration and accreditation in the industrial information
economy. The cable operator owns its cable system by virtue of capital
investment and (perhaps) expertise in laying cables, hooking up homes, and
selling video services. However, it is control over the pipeline into the home
that gives it the editorial role in the materials that reach the home. Given
the concentrated economics of cable systems, this editorial power is not easy
to replace and is not subject to open competition. The same phenomenon occurs
with other media that are concentrated and where the information production and
distribution functions are integrated with relevance filtration and
accreditation: from one-newspaper towns to broadcasters or cable broadband
service providers. An edited environment that frees the individual to think
about and choose from a small selection of information inputs becomes less
attractive when the editor takes on that role as a result of the ownership of
carriage media, a large printing press, or copyrights in existing content,
rather than as a result of selection by the user as a preferred editor or
filter. The existence of an editor means that there is less information for an
individual to process. It does not mean that the values according to which the
information was pared down are those that the user would have chosen absent the
tied relationship between editing and either proprietary content production or
carriage.

Finally, and most important, just like any other form of information,
knowledge, and culture, relevance and accreditation can be, and are, produced
in a distributed fashion. Instead of relying on the judgment of a record label
and a DJ of a commercial radio station for what music is worth listening to,
users can compare notes as to what they like, and give music to friends whom
they think will like it. This is the virtue of music file-sharing systems as
distribution systems. Moreover, some of the most interesting experiments in
peer production described in chapter 3 are focused on filtration. From the
discussions of /Wikipedia/ to the moderation and metamoderation scheme of
Slashdot, and from the sixty thousand volunteers that make up the Open
Directory Project to the PageRank system used by Google, the means of filtering
data are being produced within the networked information [[pg 172]] economy
using peer production and the coordinate patterns of nonproprietary production
more generally. The presence of these filters provides the most important
answer to the Babel objection. The presence of filters that do not depend on
proprietary control, and that do not bundle proprietary content production and
carriage services with filtering, offers a genuinely distinct approach toward
presenting autonomous individuals with a choice among different filters that
reflect genuinely diverse motivations and organizational forms of the
providers.

Beyond the specific efforts at commons-based accreditation and relevance
filtration, we are beginning to observe empirically that patterns of use of the
Internet and the World Wide Web exhibit a significant degree of order. In
chapter 7, I describe in detail and apply the literature that has explored
network topology to the Babel objection in the context of democracy and the
emerging networked public sphere, but its basic lesson applies here as well. In
brief, the structure of linking on the Internet suggests that, even without
quasi-formal collaborative filtering, the coordinate behavior of many
autonomous individuals settles on an order that permits us to make sense of the
tremendous flow of information that results from universal practical ability to
speak and create. We observe the Web developing an order--with high-visibility
nodes, and clusters of thickly connected "regions" where groups of Web sites
accredit each other by mutual referencing. The high-visibility Web sites
provide points of condensation for informing individual choices, every bit as
much as they form points of condensation for public discourse. The enormous
diversity of topical and context-dependent clustering, whose content is
nonetheless available for anyone to reach from anywhere, provides both a way of
slicing through the information and rendering it comprehensible, and a way of
searching for new sources of information beyond those that one interacts with
as a matter of course. The Babel objection is partly solved, then, by the fact
that people tend to congregate around common choices. We do this not as a
result of purposeful manipulation, but rather because in choosing whether or
not to read something, we probably give some weight to whether or not other
people have chosen to read it. Unless one assumes that individual human beings
are entirely dissimilar from each other, then the fact that many others have
chosen to read something is a reasonable signal that it may be worthwhile for
me to read. This phenomenon is both universal--as we see with the fact that
Google successfully provides useful ranking by aggregating all judgments around
the Web as to the relevance of any given Web site--and recursively [[pg 173]]
present within interest-based and context-based clusters or groups. The
clustering and actual degree distribution in the Web suggests, however, that
people do not simply follow the herd--they will not read whatever a majority
reads. Rather, they will make additional rough judgments about which other
people's preferences are most likely to predict their own, or which topics to
look in. From these very simple rules--other people share something with me in
their tastes, and some sets of other people share more with me than others--we
see the Babel objection solved on a distributed model, without anyone exerting
formal legal control or practical economic power.

Why, however, is this not a simple reintroduction of heteronomy, of dependence
on the judgment of others that subjects individuals to their control? The
answer is that, unlike with proprietary filters imposed at bottlenecks or
gateways, attention-distribution patterns emerge from many small-scale,
independent choices where free choice exists. They are not easily manipulable
by anyone. Significantly, the millions of Web sites that do not have high
traffic do not "go out of business." As Clay Shirky puts it, while my thoughts
about the weekend are unlikely to be interesting to three random users, they
may well be interesting, and a basis for conversation, for three of my close
friends. The fact that power law distributions of attention to Web sites result
from random distributions of interests, not from formal or practical
bottlenecks that cannot be worked around, means that whenever an individual
chooses to search based on some mechanism other than the simplest, thinnest
belief that individuals are all equally similar and dissimilar, a different
type of site will emerge as highly visible. Topical sites cluster,
unsurprisingly, around topical preference groups; one site does not account for
all readers irrespective of their interests. We, as individuals, also go
through an iterative process of assigning a likely relevance to the judgments
of others. Through this process, we limit the information overload that would
threaten to swamp our capacity to know; we diversify the sources of information
to which we expose ourselves; and we avoid a stifling dependence on an editor
whose judgments we cannot circumvent. We might spend some of our time using the
most general, "human interest has some overlap" algorithm represented by Google
for some things, but use political common interest, geographic or local
interest, hobbyist, subject matter, or the like, to slice the universe of
potential others with whose judgments we will choose to affiliate for any given
search. By a combination of random searching and purposeful deployment of
social mapping--who is likely to be interested in what is relevant to me
now--we can solve the Babel objection while subjecting [[pg 174]] ourselves
neither to the legal and market power of proprietors of communications
infrastructure or media products nor to the simple judgments of the
undifferentiated herd. These observations have the virtue of being not only
based on rigorous mathematical and empirical studies, as we see in chapter 7,
but also being more consistent with intuitive experience of anyone who has used
the Internet for any decent length of time. We do not degenerate into mindless
meandering through a cacophonous din. We find things we want quite well. We
stumble across things others suggest to us. When we do go on an unplanned walk,
within a very short number of steps we either find something interesting or go
back to looking in ways that are more self-conscious and ordered.

The core response to the Babel objection is, then, to accept that filtration is
crucial to an autonomous individual. Nonetheless, that acknowledgement does not
suggest that the filtration and accreditation systems that the industrial
information economy has in fact produced, tied to proprietary control over
content production and exchange, are the best means to protect autonomous
individuals from the threat of paralysis due to information overload. Property
in infrastructure and content affords control that can be used to provide
filtration. To that extent, property provides the power for some people to
shape the will-formation processes of others. The adoption of distributed
information-production systems--both structured as cooperative peer-production
enterprises and unstructured coordinate results of individual behavior, like
the clustering of preferences around Web sites--does not mean that filtration
and accreditation lose their importance. It only means that autonomy is better
served when these communicative functions, like others, are available from a
nonproprietary, open model of production alongside the proprietary mechanisms
of filtration. Being autonomous in this context does not mean that we have to
make all the information, read it all, and sift through it all by ourselves. It
means that the combination of institutional and practical constraints on who
can produce information, who can access it, and who can determine what is worth
reading leaves each individual with a substantial role in determining what he
shall read, and whose judgment he shall adhere to in sifting through the
information environment, for what purposes, and under what circumstances. As
always in the case of autonomy for context-bound individuals, the question is
the relative role that individuals play, not some absolute, context-independent
role that could be defined as being the condition of freedom.

The increasing feasibility of nonmarket, nonproprietary production of
information, [[pg 175]] knowledge, and culture, and of communications and
computation capacity holds the promise of increasing the degree of autonomy for
individuals in the networked information economy. By removing basic capital and
organizational constraints on individual action and effective cooperation, the
networked information economy allows individuals to do more for and by
themselves, and to form associations with others whose help they require in
pursuing their plans. We are beginning to see a shift from the highly
constrained roles of employee and consumer in the industrial economy, to more
flexible, self-authored roles of user and peer participant in cooperative
ventures, at least for some part of life. By providing as commons a set of core
resources necessary for perceiving the state of the world, constructing one's
own perceptions of it and one's own contributions to the information
environment we all occupy, the networked information economy diversifies the
set of constraints under which individuals can view the world and attenuates
the extent to which users are subject to manipulation and control by the owners
of core communications and information systems they rely on. By making it
possible for many more diversely motivated and organized individuals and groups
to communicate with each other, the emerging model of information production
provides individuals with radically different sources and types of stories, out
of which we can work to author our own lives. Information, knowledge, and
culture can now be produced not only by many more people than could do so in
the industrial information economy, but also by individuals and in subjects and
styles that could not pass the filter of marketability in the mass-media
environment. The result is a proliferation of strands of stories and of means
of scanning the universe of potential stories about how the world is and how it
might become, leaving individuals with much greater leeway to choose, and
therefore a much greater role in weaving their own life tapestry. [[pg 176]]


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CHAPTER 6 - POLITICAL FREEDOM PART 1: THE TROUBLE WITH MASS MEDIA
-----------------------------------------------------------------

Modern democracies and mass media have coevolved throughout the twentieth
century. The first modern national republics--the early American Republic, the
French Republic from the Revolution to the Terror, the Dutch Republic, and the
early British parliamentary monarchy--preexisted mass media. They provide us
with some model of the shape of the public sphere in a republic without mass
media, what Jurgen Habermas called the bourgeois public sphere. However, the
expansion of democracies in complex modern societies has largely been a
phenomenon of the late nineteenth and twentieth centuries--in particular, the
post-World War II years. During this period, the platform of the public sphere
was dominated by mass media--print, radio, and television. In authoritarian
regimes, these means of mass communication were controlled by the state. In
democracies, they operated either under state ownership, with varying degrees
of independence from the sitting government, or under private ownership
financially dependent on advertising markets. We do not, therefore, have
examples of complex modern democracies whose public sphere is built on a
platform that is widely [[pg 177]] distributed and independent of both
government control and market demands. The Internet as a technology, and the
networked information economy as an organizational and social model of
information and cultural production, promise the emergence of a substantial
alternative platform for the public sphere. The networked public sphere, as it
is currently developing, suggests that it will have no obvious points of
control or exertion of influence--either by fiat or by purchase. It seems to
invert the mass-media model in that it is driven heavily by what dense clusters
of users find intensely interesting and engaging, rather than by what large
swathes of them find mildly interesting on average. And it promises to offer a
platform for engaged citizens to cooperate and provide observations and
opinions, and to serve as a watchdog over society on a peer-production model.

The claim that the Internet democratizes is hardly new. "Everyone a
pamphleteer" has been an iconic claim about the Net since the early 1990s. It
is a claim that has been subjected to significant critique. What I offer,
therefore, in this chapter and the next is not a restatement of the basic case,
but a detailed analysis of how the Internet and the emerging networked
information economy provide us with distinct improvements in the structure of
the public sphere over the mass media. I will also explain and discuss the
solutions that have emerged within the networked environment itself to some of
the persistent concerns raised about democracy and the Internet: the problems
of information overload, fragmentation of discourse, and the erosion of the
watchdog function of the media.

For purposes of considering political freedom, I adopt a very limited
definition of "public sphere." The term is used in reference to the set of
practices that members of a society use to communicate about matters they
understand to be of public concern and that potentially require collective
action or recognition. Moreover, not even all communications about matters of
potential public concern can be said to be part of the public sphere.
Communications within self-contained relationships whose boundaries are defined
independently of the political processes for collective action are "private,"
if those communications remain purely internal. Dinner-table conversations,
grumblings at a bridge club, or private letters have that characteristic, if
they occur in a context where they are not later transmitted across the
associational boundaries to others who are not part of the family or the bridge
club. Whether these conversations are, or are not, part of the public sphere
depends on the actual communications practices in a given society. The same
practices can become an initial step in generating public opinion [[pg 178]] in
the public sphere if they are nodes in a network of communications that do
cross associational boundaries. A society with a repressive regime that
controls the society-wide communications facilities nonetheless may have an
active public sphere if social networks and individual mobility are sufficient
to allow opinions expressed within discrete associational settings to spread
throughout a substantial portion of the society and to take on political
meaning for those who discuss them. The public sphere is, then, a
sociologically descriptive category. It is a term for signifying how, if at
all, people in a given society speak to each other in their relationship as
constituents about what their condition is and what they ought or ought not to
do as a political unit. This is a purposefully narrow conception of the public
sphere. It is intended to focus on the effects of the networked environment on
what has traditionally been understood to be political participation in a
republic. I postpone consideration of a broader conception of the public
sphere, and of the political nature of who gets to decide meaning and how
cultural interpretations of the conditions of life and the alternatives open to
a society are created and negotiated in a society until chapter 8.

The practices that define the public sphere are structured by an interaction of
culture, organization, institutions, economics, and technical communications
infrastructure. The technical platforms of ink and rag paper, handpresses, and
the idea of a postal service were equally present in the early American
Republic, Britain, and France of the late eighteenth and early nineteenth
centuries. However, the degree of literacy, the social practices of newspaper
reading, the relative social egalitarianism as opposed to elitism, the
practices of political suppression or subsidy, and the extent of the postal
system led to a more egalitarian, open public sphere, shaped as a network of
smaller-scale local clusters in the United States, as opposed to the more
tightly regulated and elitist national and metropolis-centered public spheres
of France and Britain. The technical platforms of mass-circulation print and
radio were equally available in the Soviet Union and Nazi Germany, in Britain,
and in the United States in the 1930s. Again, however, the vastly different
political and legal structures of the former created an authoritarian public
sphere, while the latter two, both liberal public spheres, differed
significantly in the business organization and economic model of production,
the legal framework and the cultural practices of reading and listening--
leading to the then still elitist overlay on the public sphere in Britain
relative to a more populist public sphere in the United States.

Mass media structured the public sphere of the twentieth century in all [[pg
179]] advanced modern societies. They combined a particular technical
architecture, a particular economic cost structure, a limited range of
organizational forms, two or three primary institutional models, and a set of
cultural practices typified by consumption of finished media goods. The
structure of the mass media resulted in a relatively controlled public
sphere--although the degree of control was vastly different depending on
whether the institutional model was liberal or authoritarian--with influence
over the debate in the public sphere heavily tilted toward those who controlled
the means of mass communications. The technical architecture was a one-way,
hub-and-spoke structure, with unidirectional links to its ends, running from
the center to the periphery. A very small number of production facilities
produced large amounts of identical copies of statements or communications,
which could then be efficiently sent in identical form to very large numbers of
recipients. There was no return loop to send observations or opinions back from
the edges to the core of the architecture in the same channel and with similar
salience to the communications process, and no means within the massmedia
architecture for communication among the end points about the content of the
exchanges. Communications among the individuals at the ends were shunted to
other media--personal communications or telephones-- which allowed
communications among the ends. However, these edge media were either local or
one-to-one. Their social reach, and hence potential political efficacy, was
many orders of magnitude smaller than that of the mass media.

The economic structure was typified by high-cost hubs and cheap, ubiquitous,
reception-only systems at the ends. This led to a limited range of
organizational models available for production: those that could collect
sufficient funds to set up a hub. These included: state-owned hubs in most
countries; advertising-supported commercial hubs in some of the liberal states,
most distinctly in the United States; and, particularly for radio and
television, the British Broadcasting Corporation (BBC) model or hybrid models
like the Canadian Broadcasting Corporation (CBC) in Canada. The role of hybrid
and purely commercial, advertising-supported media increased substantially
around the globe outside the United States in the last two to three decades of
the twentieth century. Over the course of the century, there also emerged
civil-society or philanthropy-supported hubs, like the party presses in Europe,
nonprofit publications like Consumer Reports (later, in the United States),
and, more important, public radio and television. The oneway technical
architecture and the mass-audience organizational model underwrote [[pg 180]]
the development of a relatively passive cultural model of media consumption.
Consumers (or subjects, in authoritarian systems) at the ends of these systems
would treat the communications that filled the public sphere as finished goods.
These were to be treated not as moves in a conversation, but as completed
statements whose addressees were understood to be passive: readers, listeners,
and viewers.

The Internet's effect on the public sphere is different in different societies,
depending on what salient structuring components of the existing public sphere
its introduction perturbs. In authoritarian countries, it is the absence of a
single or manageably small set of points of control that is placing the
greatest pressure on the capacity of the regimes to control their public
sphere, and thereby to simplify the problem of controlling the actions of the
population. In liberal countries, the effect of the Internet operates through
its implications for economic cost and organizational form. In both cases,
however, the most fundamental and potentially long-standing effect that
Internet communications are having is on the cultural practice of public
communication. The Internet allows individuals to abandon the idea of the
public sphere as primarily constructed of finished statements uttered by a
small set of actors socially understood to be "the media" (whether state owned
or commercial) and separated from society, and to move toward a set of social
practices that see individuals as participating in a debate. Statements in the
public sphere can now be seen as invitations for a conversation, not as
finished goods. Individuals can work their way through their lives, collecting
observations and forming opinions that they understand to be practically
capable of becoming moves in a broader public conversation, rather than merely
the grist for private musings.

DESIGN CHARACTERISTICS OF A COMMUNICATIONS PLATFORM FOR A LIBERAL PUBLIC
PLATFORM OR A LIBERAL PUBLIC SPHERE
..............................................................................

How is private opinion about matters of collective, formal, public action
formed? How is private opinion communicated to others in a form and in channels
that allow it to be converted into a public, political opinion, and a position
worthy of political concern by the formal structures of governance of a
society? How, ultimately, is such a political and public opinion converted into
formal state action? These questions are central to understanding how [[pg
181]] individuals in complex contemporary societies, located at great distances
from each other and possessing completely different endowments of material,
intellectual, social, and formal ties and capabilities, can be citizens of the
same democratic polity rather than merely subjects of a more or less responsive
authority. In the idealized Athenian agora or New England town hall, the
answers are simple and local. All citizens meet in the agora, they speak in a
way that all relevant citizens can hear, they argue with each other, and
ultimately they also constitute the body that votes and converts the opinion
that emerges into a legitimate action of political authority. Of course, even
in those small, locally bounded polities, things were never quite so simple.
Nevertheless, the idealized version does at least give us a set of functional
characteristics that we might seek in a public sphere: a place where people can
come to express and listen to proposals for agenda items--things that ought to
concern us as members of a polity and that have the potential to become objects
of collective action; a place where we can make and gather statements of fact
about the state of our world and about alternative courses of action; where we
can listen to opinions about the relative quality and merits of those facts and
alternative courses of action; and a place where we can bring our own concerns
to the fore and have them evaluated by others.

Understood in this way, the public sphere describes a social communication
process. Habermas defines the public sphere as "a network for communicating
information and points of view (i.e., opinions expressing affirmative or
negative attitudes)"; which, in the process of communicating this information
and these points of view, filters and synthesizes them "in such a way that they
coalesce into bundles of topically specified public opinions."[^48] Taken in
this descriptive sense, the public sphere does not relate to a particular form
of public discourse that is normatively attractive from some perspective or
another. It defines a particular set of social practices that are necessary for
the functioning of any complex social system that includes elements of
governing human beings. There are authoritarian public spheres, where
communications are regimented and controlled by the government in order to
achieve acquiescence and to mobilize support, rather than relying solely on
force to suppress dissent and opposition. There are various forms of liberal
public spheres, constituted by differences in the political and communications
systems scattered around liberal democracies throughout the world. The BBC or
the state-owned televisions throughout postwar Western European democracies,
for example, constituted the public spheres in different [[pg 182]] ways than
did the commercial mass media that dominated the American public sphere. As
advertiser-supported mass media have come to occupy a larger role even in
places where they were not dominant before the last quarter of the twentieth
century, the long American experience with this form provides useful insight
globally.

In order to consider the relative advantages and failures of various platforms
for a public sphere, we need to define a minimal set of desiderata that such a
platform must possess. My point is not to define an ideal set of constraints
and affordances of the public sphere that would secure legitimacy or would be
most attractive under one conception of democracy or another. Rather, my
intention is to define a design question: What characteristics of a
communications system and practices are sufficiently basic to be desired by a
wide range of conceptions of democracy? With these in hand, we will be able to
compare the commercial mass media and the emerging alternatives in the
digitally networked environment.

/Universal Intake/. Any system of government committed to the idea that, in
principle, the concerns of all those governed by that system are equally
respected as potential proper subjects for political action and that all those
governed have a say in what government should do requires a public sphere that
can capture the observations of all constituents. These include at least their
observations about the state of the world as they perceive and understand it,
and their opinions of the relative desirability of alternative courses of
action with regard to their perceptions or those of others. It is important not
to confuse "universal intake" with more comprehensive ideas, such as that every
voice must be heard in actual political debates, or that all concerns deserve
debate and answer. Universal intake does not imply these broader requirements.
It is, indeed, the role of filtering and accreditation to whittle down what the
universal intake function drags in and make it into a manageable set of
political discussion topics and interventions. However, the basic requirement
of a public sphere is that it must in principle be susceptible to perceiving
and considering the issues of anyone who believes that their condition is a
matter appropriate for political consideration and collective action. The
extent to which that personal judgment about what the political discourse
should be concerned with actually coincides with what the group as a whole will
consider in the public sphere is a function of the filtering and accreditation
functions. [[pg 183]]

/Filtering for Potential Political Relevance/. Not everything that someone
considers to be a proper concern for collective action is perceived as such by
most other participants in the political debate. A public sphere that has some
successful implementation of universal intake must also have a filter to
separate out those matters that are plausibly within the domain of organized
political action and those that are not. What constitutes the range of
plausible political topics is locally contingent, changes over time, and is
itself a contested political question, as was shown most obviously by the
"personal is political" feminist intellectual campaign. While it left "my dad
won't buy me the candy I want" out of the realm of the political, it insisted
on treating "my husband is beating me" as critically relevant in political
debate. An overly restrictive filtering system is likely to impoverish a public
sphere and rob it of its capacity to develop legitimate public opinion. It
tends to exclude views and concerns that are in fact held by a sufficiently
large number of people, or to affect people in sufficiently salient ways that
they turn out, in historical context, to place pressure on the political system
that fails to consider them or provide a legitimate answer, if not a solution.
A system that is too loose tends to fail because it does not allow a sufficient
narrowing of focus to provide the kind of sustained attention and concentration
necessary to consider a matter and develop a range of public opinions on it.

/Filtering for Accreditation/. Accreditation is different from relevance,
requires different kinds of judgments, and may be performed in different ways
than basic relevance filtering. A statement like "the president has sold out
space policy to Martians" is different from "my dad won't buy me the candy I
want." It is potentially as relevant as "the president has sold out energy
policy to oil companies." What makes the former a subject for entertainment,
not political debate, is its lack of credibility. Much of the function of
journalistic professional norms is to create and preserve the credibility of
the professional press as a source of accreditation for the public at large.
Parties provide a major vehicle for passing the filters of both relevance and
accreditation. Academia gives its members a source of credibility, whose force
(ideally) varies with the degree to which their statements come out of, and
pertain to, their core roles as creators of knowledge through their
disciplinary constraints. Civil servants in reasonably professional systems can
provide a source of accreditation. Large corporations have come to play such a
role, though with greater ambiguity. The emerging role of nongovernment
organizations [[pg 184]] (NGOs), very often is intended precisely to
preorganize opinion that does not easily pass the relevant public sphere's
filters of relevance and accreditation and provide it with a voice that will.
Note that accreditation of a move in political discourse is very different from
accreditation of a move in, for example, academic discourse, because the
objective of each system is different. In academic discourse, the fact that a
large number of people hold a particular opinion ("the universe was created in
seven days") does not render that opinion credible enough to warrant serious
academic discussion. In political discourse, say, about public school
curricula, the fact that a large number of people hold the same view and are
inclined to have it taught in public schools makes that claim highly relevant
and "credible." In other words, it is credible that this could become a
political opinion that forms a part of public discourse with the potential to
lead to public action. Filters, both for relevance and accreditation, provide a
critical point of control over the debate, and hence are extremely important
design elements.

/Synthesis of "Public Opinion."/ The communications system that offers the
platform for the public sphere must also enable the synthesis of clusters of
individual opinion that are sufficiently close and articulated to form
something more than private opinions held by some number of individuals. How
this is done is tricky, and what counts as "public opinion" may vary among
different theories of democracy. In deliberative conceptions, this might make
requirements of the form of discourse. Civic republicans would focus on open
deliberation among people who see their role as deliberating about the common
good. Habermas would focus on deliberating under conditions that assure the
absence of coercion, while Bruce Ackerman would admit to deliberation only
arguments formulated so as to be neutral as among conceptions of the good. In
pluralist conceptions, like John Rawls's in Political Liberalism, which do not
seek ultimately to arrive at a common understanding but instead seek to
peaceably clear competing positions as to how we ought to act as a polity, this
might mean the synthesis of a position that has sufficient overlap among those
who hold it that they are willing to sign on to a particular form of statement
in order to get the bargaining benefits of scale as an interest group with a
coherent position. That position then comes to the polls and the bargaining
table as one that must be considered, overpowered, or bargained with. In any
event, the platform has to provide some capacity to synthesize the finely
disparate and varied versions of beliefs and positions held by actual
individuals into articulated positions amenable for [[pg 185]] consideration
and adoption in the formal political sphere and by a system of government, and
to render them in ways that make them sufficiently salient in the overall mix
of potential opinions to form a condensation point for collective action.

/Independence from Government Control/. The core role of the political public
sphere is to provide a platform for converting privately developed
observations, intuitions, and opinions into public opinions that can be brought
to bear in the political system toward determining collective action. One core
output of these communications is instructions to the administration sitting in
government. To the extent that the platform is dependent on that same sitting
government, there is a basic tension between the role of debate in the public
sphere as issuing instructions to the executive and the interests of the
sitting executive to retain its position and its agenda and have it ratified by
the public. This does not mean that the communications system must exclude
government from communicating its positions, explaining them, and advocating
them. However, when it steps into the public sphere, the locus of the formation
and crystallization of public opinion, the sitting administration must act as a
participant in explicit conversation, and not as a platform controller that can
tilt the platform in its direction.

THE EMERGENCE OF THE COMMERCIAL MASS-MEDIA PLATFORM FOR THE PUBLIC SPHERE
.........................................................................

Throughout the twentieth century, the mass media have played a fundamental
constitutive role in the construction of the public sphere in liberal
democracies. Over this period, first in the United States and later throughout
the world, the commercial, advertising-supported form of mass media has become
dominant in both print and electronic media. Sometimes, these media have played
a role that has drawn admiration as "the fourth estate." Here, the media are
seen as a critical watchdog over government processes, and as a major platform
for translating the mobilization of social movements into salient, and
ultimately actionable, political statements. These same media, however, have
also drawn mountains of derision for the power they wield, as well as fail to
wield, and for the shallowness of public communication they promote in the
normal course of the business of selling eyeballs to advertisers. Nowhere was
this clearer than in the criticism of the large role that television came to
play in American public culture and its public [[pg 186]] sphere. Contemporary
debates bear the imprint of the three major networks, which in the early 1980s
still accounted for 92 percent of television viewers and were turned on and
watched for hours a day in typical American homes. These inspired works like
Neil Postman's /Amusing Ourselves to Death or Robert Putnam's claim, in Bowling
Alone/, that television seemed to be the primary identifiable discrete cause of
the decline of American civic life. Nevertheless, whether positive or negative,
variants of the mass-media model of communications have been dominant
throughout the twentieth century, in both print and electronic media. The
mass-media model has been the dominant model of communications in both
democracies and their authoritarian rivals throughout the period when democracy
established itself, first against monarchies, and later against communism and
fascism. To say that mass media were dominant is not to say that only technical
systems of remote communications form the platform of the public sphere. As
Theda Skocpol and Putnam have each traced in the context of the American and
Italian polities, organizations and associations of personal civic involvement
form an important platform for public participation. And yet, as both have
recorded, these platforms have been on the decline. So "dominant" does not mean
sole, but instead means overridingly important in the structuring of the public
sphere. It is this dominance, not the very existence, of mass media that is
being challenged by the emergence of the networked public sphere.

The roots of the contemporary industrial structure of mass media presage both
the attractive and unattractive aspects of the media we see today. Pioneered by
the Dutch printers of the seventeenth century, a commercial press that did not
need to rely on government grants and printing contracts, or on the church,
became a source of a constant flow of heterodox literature and political
debate.[^49] However, a commercial press has always also been sensitive to the
conditions of the marketplace--costs, audience, and competition. In
seventeenth-century England, the Stationers' Monopoly provided its insiders
enough market protection from competitors that its members were more than happy
to oblige the Crown with a compliant press in exchange for monopoly. It was
only after the demise of that monopoly that a genuinely political press
appeared in earnest, only to be met by a combination of libel prosecutions,
high stamp taxes, and outright bribery and acquisition by government.[^50]
These, like the more direct censorship and sponsorship relationships that
typified the prerevolutionary French press, kept newspapers and gazettes
relatively compliant, and their distribution largely limited to elite
audiences. Political dissent did not form part of a stable and [[pg 187]]
independent market-based business model. As Paul Starr has shown, the evolution
of the British colonies in America was different. While the first century or so
of settlement saw few papers, and those mostly "authorized" gazettes,
competition began to increase over the course of the eighteenth century. The
levels of literacy, particularly in New England, were exceptionally high, the
population was relatively prosperous, and the regulatory constraints that
applied in England, including the Stamp Tax of 1712, did not apply in the
colonies. As second and third newspapers emerged in cities like Boston,
Philadelphia, and New York, and were no longer supported by the colonial
governments through postal franchises, the public sphere became more
contentious. This was now a public sphere whose voices were self-supporting,
like Benjamin Franklin's Pennsylvania Gazette. The mobilization of much of this
press during the revolutionary era, and the broad perception that it played an
important role in constituting the American public, allowed the commercial
press to continue to play an independent and critical role after the revolution
as well, a fate not shared by the brief flowering of the press immediately
after the French Revolution. A combination of high literacy and high government
tolerance, but also of postal subsidies, led the new United States to have a
number and diversity of newspapers unequalled anywhere else, with a higher
weekly circulation by 1840 in the 17-million-strong United States than in all
of Europe with its population then of 233 million. By 1830, when Tocqueville
visited America, he was confronted with a widespread practice of newspaper
reading--not only in towns, but in farflung farms as well, newspapers that were
a primary organizing mechanism for political association.[^51]

This widespread development of small-circulation, mostly local, competitive
commercial press that carried highly political and associational news and
opinion came under pressure not from government, but from the economies of
scale of the mechanical press, the telegraph, and the ever-expanding political
and economic communities brought together by rail and industrialization. Harold
Innis argued more than half a century ago that the increasing costs of
mechanical presses, coupled with the much-larger circulation they enabled and
the availability of a flow of facts from around the world through telegraph,
reoriented newspapers toward a mass-circulation, relatively low-denominator
advertising medium. These internal economies, as Alfred Chandler and, later,
James Beniger showed in their work, intersected with the vast increase in
industrial output, which in turn required new mechanisms of demand
management--in other words, more sophisticated [[pg 188]] advertising to
generate and channel demand. In the 1830s, the Sun and Herald were published in
New York on large-circulation scales, reducing prices to a penny a copy and
shifting content from mostly politics and business news to new forms of
reporting: petty crimes from the police courts, human-interest stories, and
outright entertainment-value hoaxes.[^52] The startup cost of founding such
mass-circulation papers rapidly increased over the second quarter of the
nineteenth century, as figure 6.1 illustrates. James Gordon Bennett founded the
Herald in 1835, with an investment of five hundred dollars, equal to a little
more than $10,400 in 2005 dollars. By 1840, the necessary investment was ten to
twenty times greater, between five and ten thousand dollars, or
$106,000?$212,000 in 2005 terms. By 1850, that amount had again grown tenfold,
to $100,000, about $2.38 million in 2005.[^53] In the span of fifteen years,
the costs of starting a newspaper rose from a number that many could conceive
of spending for a wide range of motivations using a mix of organizational
forms, to something that required a more or less industrial business model to
recoup a very substantial financial investment. The new costs reflected
mutually reinforcing increases in organizational cost (because of the
professionalization of the newspaper publishing model) and the introduction of
high-capacity, higher-cost equipment: electric presses (1839); the Hoe
double-cylinder rotary press (1846), which raised output from the five hundred
to one thousand sheets per hour of the early steam presses (up from 250 sheets
for the handpress) to twelve thousand sheets per hour; and eventually William
Bullock's roll-fed rotary press that produced twelve thousand complete
newspapers per hour by 1865. The introduction of telegraph and the emergence of
news agencies--particularly the Associated Press (AP) in the United States and
Reuters in England--completed the basic structure of the commercial printed
press. These characteristics--relatively high cost, professional, advertising
supported, dependent on access to a comparatively small number of news agencies
(which, in the case of the AP, were often used to anticompetitive advantage by
their members until the midtwentieth-century antitrust case)--continued to
typify print media. With the introduction of competition from radio and
television, these effects tended to lead to greater concentration, with a
majority of papers facing no local competition, and an ever-increasing number
of papers coming under the joint ownership of a very small number of news
publishing houses.

won_benkler_6_1.png 420x362 "Figure 6.1: Start-up Costs of a Daily Newspaper,
1835-1850 (in 2005 dollars)" [link: <http://www.jus.uio.no/sisu>]

The introduction of radio was the next and only serious potential inflection
point, prior to the emergence of the Internet, at which some portion of the
public sphere could have developed away from the advertiser- [[pg 189]]
supported mass-media model. In most of Europe, radio followed the path of
state-controlled media, with variable degrees of freedom from the executive at
different times and places. Britain developed the BBC, a public organization
funded by government-imposed levies, but granted sufficient operational freedom
to offer a genuine platform for a public sphere, as opposed to a reflection of
the government's voice and agenda. While this model successfully developed what
is perhaps the gold standard of broadcast journalism, it also grew as a largely
elite institution throughout much of the twentieth century. The BBC model of
state-based funding and monopoly with genuine editorial autonomy became the
basis of the broadcast model in a number of former colonies: Canada and
Australia adopted a hybrid model in the 1930s. This included a well-funded
public broadcaster, but did not impose a monopoly in its favor, allowing
commercial broadcasters to grow alongside it. Newly independent former colonies
in the postwar era that became democracies, like India and Israel, adopted the
model with monopoly, levy-based funding, and a degree of editorial
independence. The most currently visible adoption of a hybrid model based on
some state funding but with editorial freedom is Al Jazeera, the Arab satellite
station partly funded by the Emir of Qatar, but apparently free to pursue its
own editorial policy, whose coverage stands in sharp contrast to that of the
state-run broadcasters [[pg 190]] in the region. In none of these BBC-like
places did broadcast diverge from the basic centralized communications model of
the mass media, but it followed a path distinct from the commercial mass media.
Radio, and later television, was a more tightly controlled medium than was the
printed press; its intake, filtering, and synthesis of public discourse were
relatively insulated from the pressure of both markets, which typified the
American model, and politics, which typified the state-owned broadcasters.
These were instead controlled by the professional judgments of their management
and journalists, and showed both the high professionalism that accompanied
freedom along both those dimensions and the class and professional elite
filters that typify those who control the media under that organizational
model. The United States took a different path that eventually replicated,
extended, and enhanced the commercial, advertiser-supported mass-media model
originated in the printed press. This model was to become the template for the
development of similar broadcasters alongside the state-owned and independent
BBC-model channels adopted throughout much of the rest of the world, and of
programming production for newer distribution technologies, like cable and
satellite stations. The birth of radio as a platform for the public sphere in
the United States was on election night in 1920.[^54] Two stations broadcast
the election returns as their launchpad for an entirely new medium--wireless
broadcast to a wide audience. One was the Detroit News amateur station, 8MK, a
broadcast that was framed and understood as an internal communication of a
technical fraternity--the many amateurs who had been trained in radio
communications for World War I and who then came to form a substantial and
engaged technical community. The other was KDKA Pittsburgh, launched by
Westinghouse as a bid to create demand for radio receivers of a kind that it
had geared up to make during the war. Over the following four or five years, it
was unclear which of these two models of communication would dominate the new
medium. By 1926, however, the industrial structure that would lead radio to
follow the path of commercial, advertiser-supported, concentrated mass media,
dependent on government licensing and specializing in influencing its own
regulatory oversight process was already in place.

Although this development had its roots in the industrial structure of radio
production as it emerged from the first two decades of innovation and
businesses in the twentieth century, it was shaped significantly by
political-regulatory choices during the 1920s. At the turn of the twentieth
century, radio was seen exclusively as a means of wireless telegraphy,
emphasizing [[pg 191]] ship-to-shore and ship-to-ship communications. Although
some amateurs experimented with voice programs, broadcast was a mode of
point-to-point communications; entertainment was not seen as its function until
the 1920s. The first decade and a half of radio in the United States saw rapid
innovation and competition, followed by a series of patent suits aimed to
consolidate control over the technology. By 1916, the ideal transmitter based
on technology available at the time required licenses of patents held by
Marconi, AT&T, General Electric (GE), and a few individuals. No licenses were
in fact granted. The industry had reached stalemate. When the United States
joined the war, however, the navy moved quickly to break the stalemate,
effectively creating a compulsory cross-licensing scheme for war production,
and brought in Westinghouse, the other major potential manufacturer of vacuum
tubes alongside GE, as a participant in the industry. The two years following
the war saw intervention by the U.S. government to assure that American radio
industry would not be controlled by British Marconi because of concerns in the
navy that British control over radio would render the United States vulnerable
to the same tactic Britain used against Germany at the start of the
war--cutting off all transoceanic telegraph communications. The navy brokered a
deal in 1919 whereby a new company was created-- the Radio Corporation of
America (RCA)--which bought Marconi's American business. By early 1920, RCA,
GE, and AT&T entered into a patent cross-licensing model that would allow each
to produce for a market segment: RCA would control transoceanic wireless
telegraphy, while GE and AT&T's Western Electric subsidiary would make radio
transmitters and sell them under the RCA brand. This left Westinghouse with
production facilities developed for the war, but shut out of the existing
equipment markets by the patent pool. Launching KDKA Pittsburgh was part of its
response: Westinghouse would create demand for small receivers that it could
manufacture without access to the patents held by the pool. The other part of
its strategy consisted of acquiring patents that, within a few months, enabled
Westinghouse to force its inclusion in the patent pool, redrawing the market
division map to give Westinghouse 40 percent of the receiving equipment market.
The first part of Westinghouse's strategy, adoption of broadcasting to generate
demand for receivers, proved highly successful and in the long run more
important. Within two years, there were receivers in 10 percent of American
homes. Throughout the 1920s, equipment sales were big business.

Radio stations, however, were not dominated by the equipment manufacturers, or
by anyone else for that matter, in the first few years. While the [[pg 192]]
equipment manufacturers did build powerful stations like KDKA Pittsburgh, WJZ
Newark, KYW Chicago (Westinghouse), and WGY Schenectady (GE), they did not sell
advertising, but rather made their money from equipment sales. These stations
did not, in any meaningful sense of the word, dominate the radio sphere in the
first few years of radio, as the networks would indeed come to do within a
decade. In November 1921, the first five licenses were issued by the Department
of Commerce under the new category of "broadcasting" of "news, lectures,
entertainment, etc." Within eight months, the department had issued another 453
licenses. Many of these went to universities, churches, and unions, as well as
local shops hoping to attract business with their broadcasts. Universities,
seeing radio as a vehicle for broadening their role, began broadcasting
lectures and educational programming. Seventy-four institutes of higher
learning operated stations by the end of 1922. The University of Nebraska
offered two-credit courses whose lectures were transmitted over the air.
Churches, newspapers, and department stores each forayed into this new space,
much as we saw the emergence of Web sites for every organization over the
course of the mid-1990s. Thousands of amateurs were experimenting with
technical and format innovations. While receivers were substantially cheaper
than transmitters, it was still possible to assemble and sell relatively cheap
transmitters, for local communications, at prices sufficiently low that
thousands of individual amateurs could take to the air. At this point in time,
then, it was not yet foreordained that radio would follow the mass-media model,
with a small number of well-funded speakers and hordes of passive listeners.
Within a short period, however, a combination of technology, business
practices, and regulatory decisions did in fact settle on the model, comprised
of a small number of advertiser-supported national networks, that came to
typify the American broadcast system throughout most of the rest of the century
and that became the template for television as well.

Herbert Hoover, then secretary of commerce, played a pivotal role in this
development. Throughout the first few years after the war, Hoover had
positioned himself as the champion of making control over radio a private
market affair, allying himself both with commercial radio interests and with
the amateurs against the navy and the postal service, each of which sought some
form of nationalization of radio similar to what would happen more or less
everywhere else in the world. In 1922, Hoover assembled the first of four
annual radio conferences, representing radio manufacturers, broadcasters, and
some engineers and amateurs. This forum became Hoover's primary [[pg 193]]
stage. Over the next four years, he used its annual meeting to derive policy
recommendations, legitimacy, and cooperation for his regulatory action, all
without a hint of authority under the Radio Act of 1912. Hoover relied heavily
on the rhetoric of public interest and on the support of amateurs to justify
his system of private broadcasting coordinated by the Department of Commerce.
From 1922 on, however, he followed a pattern that would systematically benefit
large commercial broadcasters over small ones; commercial broadcasters over
educational and religious broadcasters; and the one-to-many broadcasts over the
point-to-point, small-scale wireless telephony and telegraphy that the amateurs
were developing. After January 1922, the department inserted a limitation on
amateur licenses, excluding from their coverage the broadcast of "weather
reports, market reports, music, concerts, speeches, news or similar information
or entertainment." This, together with a Department of Commerce order to all
amateurs to stop broadcasting at 360 meters (the wave assigned broadcasting),
effectively limited amateurs to shortwave radiotelephony and telegraphy in a
set of frequencies then thought to be commercially insignificant. In the
summer, the department assigned broadcasters, in addition to 360 meters,
another band, at 400 meters. Licenses in this Class B category were reserved
for transmitters operating at power levels of 500-1,000 watts, who did not use
phonograph records. These limitations on Class B licenses made the newly
created channel a feasible home only to broadcasters who could afford the
much-more-expensive, high-powered transmitters and could arrange for live
broadcasts, rather than simply play phonograph records. The success of this new
frequency was not immediate, because many receivers could not tune out stations
broadcasting at the two frequencies in order to listen to the other. Hoover,
failing to move Congress to amend the radio law to provide him with the power
necessary to regulate broadcasting, relied on the recommendations of the Second
Radio Conference in 1923 as public support for adopting a new regime, and
continued to act without legislative authority. He announced that the broadcast
band would be divided in three: high-powered (500-1,000 watts) stations serving
large areas would have no interference in those large areas, and would not
share frequencies. They would transmit on frequencies between 300 and 545
meters. Medium-powered stations served smaller areas without interference, and
would operate at assigned channels between 222 and 300 meters. The remaining
low-powered stations would not be eliminated, as the bigger actors wanted, but
would remain at 360 meters, with limited hours of operation and geographic
reach. Many of these lower-powered broadcasters [[pg 194]] were educational and
religious institutions that perceived Hoover's allocation as a preference for
the RCA-GE-AT&T-Westinghouse alliance. Despite his protestations against
commercial broadcasting ("If a speech by the President is to be used as the
meat in a sandwich of two patent medicine advertisements, there will be no
radio left"), Hoover consistently reserved clear channels and issued high-power
licenses to commercial broadcasters. The final policy action based on the radio
conferences came in 1925, when the Department of Commerce stopped issuing
licenses. The result was a secondary market in licenses, in which some
religious and educational stations were bought out by commercial concerns.
These purchases further gravitated radio toward commercial ownership. The
licensing preference for stations that could afford high-powered transmitters,
long hours of operation, and compliance with high technical constraints
continued after the Radio Act of 1927. As a practical matter, it led to
assignment of twenty-one out of the twentyfour clear channel licenses created
by the Federal Radio Commission to the newly created network-affiliated
stations.

Over the course of this period, tensions also began to emerge within the patent
alliance. The phenomenal success of receiver sales tempted Western Electric
into that market. In the meantime, AT&T, almost by mistake, began to challenge
GE, Westinghouse, and RCA in broadcasting as an outgrowth of its attempt to
create a broadcast common-carriage facility. Despite the successes of broadcast
and receiver sales, it was not clear in 1922-1923 how the cost of setting up
and maintaining stations would be paid for. In England, a tax was levied on
radio sets, and its revenue used to fund the BBC. No such proposal was
considered in the United States, but the editor of Radio Broadcast proposed a
national endowed fund, like those that support public libraries and museums,
and in 1924, a committee of New York businessmen solicited public donations to
fund broadcasters (the response was so pitiful that the funds were returned to
their donors). AT&T was the only company to offer a solution. Building on its
telephone service experience, it offered radio telephony to the public for a
fee. Genuine wireless telephony, even mobile telephony, had been the subject of
experimentation since the second decade of radio, but that was not what AT&T
offered. In February 1922, AT&T established WEAF in New York, a broadcast
station over which AT&T was to provide no programming of its own, but instead
would enable the public or program providers to pay on a per-time basis. AT&T
treated this service as a form of wireless telephony so that it would fall,
under the patent alliance agreements of 1920, under the exclusive control of
AT&T. [[pg 195]]

RCA, Westinghouse, and GE could not compete in this area. "Toll broadcasting"
was not a success by its own terms. There was insufficient demand for
communicating with the public to sustain a full schedule that would justify
listeners tuning into the station. As a result, AT&T produced its own
programming. In order to increase the potential audience for its transmissions
while using its advantage in wired facilities, AT&T experimented with remote
transmissions, such as live reports from sports events, and with simultaneous
transmissions of its broadcasts by other stations, connected to its New York
feed by cable. In its effort to launch toll broadcasting, AT&T found itself by
mid-1923 with the first functioning precursor to an advertiser-supported
broadcast network.

The alliance members now threatened each other: AT&T threatened to enter into
receiver manufacturing and broadcast, and the RCA alliance, with its powerful
stations, threatened to adopt "toll broadcasting," or advertiser-supported
radio. The patent allies submitted their dispute to an arbitrator, who was to
interpret the 1920 agreements, reached at a time of wireless telegraphy, to
divide the spoils of the broadcast world of 1924. In late 1924, the arbitrator
found for RCA-GE-Westinghouse on almost all issues. Capitalizing on RCA's
difficulties with the antitrust authorities and congressional hearings over
aggressive monopolization practices in the receiving set market, however, AT&T
countered that if the 1920 agreements meant what the arbitrator said they
meant, they were a combination in restraint of trade to which AT&T would not
adhere. Bargaining in the shadow of the mutual threats of contract and
antitrust actions, the former allies reached a solution that formed the basis
of future radio broadcasting. AT&T would leave broadcasting. A new company,
owned by RCA, GE, and Westinghouse would be formed, and would purchase AT&T's
stations. The new company would enter into a long-term contract with AT&T to
provide the long-distance communications necessary to set up the broadcast
network that David Sarnoff envisioned as the future of broadcast. This new
entity would, in 1926, become the National Broadcasting Company (NBC). AT&T's
WEAF station would become the center of one of NBC's two networks, and the
division arrived at would thereafter form the basis of the broadcast system in
the United States.

By the middle of 1926, then, the institutional and organizational elements that
became the American broadcast system were, to a great extent, in place. The
idea of government monopoly over broadcasting, which became dominant in Great
Britain, Europe, and their former colonies, was forever abandoned. [[pg 196]]
The idea of a private-property regime in spectrum, which had been advocated by
commercial broadcasters to spur investment in broadcast, was rejected on the
backdrop of other battles over conservation of federal resources. The Radio Act
of 1927, passed by Congress in record speed a few months after a court
invalidated Hoover's entire regulatory edifice as lacking legal foundation,
enacted this framework as the basic structure of American broadcast. A
relatively small group of commercial broadcasters and equipment manufacturers
took the lead in broadcast development. A governmental regulatory agency, using
a standard of "the public good," allocated frequency, time, and power
assignments to minimize interference and to resolve conflicts. The public good,
by and large, correlated to the needs of commercial broadcasters and their
listeners. Later, the broadcast networks supplanted the patent alliance as the
primary force to which the Federal Radio Commission paid heed. The early 1930s
still saw battles over the degree of freedom that these networks had to pursue
their own commercial interests, free of regulation (studied in Robert
McChesney's work).[^55] By that point, however, the power of the broadcasters
was already too great to be seriously challenged. Interests like those of the
amateurs, whose romantic pioneering mantle still held strong purchase on the
process, educational institutions, and religious organizations continued to
exercise some force on the allocation and management of the spectrum. However,
they were addressed on the periphery of the broadcast platform, leaving the
public sphere to be largely mediated by a tiny number of commercial entities
running a controlled, advertiser-supported platform of mass media. Following
the settlement around radio, there were no more genuine inflection points in
the structure of mass media. Television followed radio, and was even more
concentrated. Cable networks and satellite networks varied to some extent, but
retained the basic advertiser-supported model, oriented toward luring the
widest possible audience to view the advertising that paid for the programming.

BASIC CRITIQUES OF MASS MEDIA
.............................

The cluster of practices that form the mass-media model was highly conducive to
social control in authoritarian countries. The hub-and-spoke technical
architecture and unidirectional endpoint-reception model of these systems made
it very simple to control, by controlling the core--the state-owned television,
radio, and newspapers. The high cost of providing [[pg 197]] high-circulation
statements meant that subversive publications were difficult to make and
communicate across large distances and to large populations of potential
supporters. Samizdat of various forms and channels have existed in most if not
all authoritarian societies, but at great disadvantage relative to public
communication. The passivity of readers, listeners, and viewers coincided
nicely with the role of the authoritarian public sphere--to manage opinion in
order to cause the widest possible willing, or at least quiescent, compliance,
and thereby to limit the need for using actual repressive force.

In liberal democracies, the same technical and economic cost characteristics
resulted in a very different pattern of communications practices. However,
these practices relied on, and took advantage of, some of the very same basic
architectural and cost characteristics. The practices of commercial mass media
in liberal democracies have been the subject of a vast literature, criticizing
their failures and extolling their virtues as a core platform for the liberal
public sphere. There have been three primary critiques of these media: First,
their intake has been seen as too limited. Too few information collection
points leave too many views entirely unexplored and unrepresented because they
are far from the concerns of the cadre of professional journalists, or cannot
afford to buy their way to public attention. The debates about localism and
diversity of ownership of radio and television stations have been the clearest
policy locus of this critique in the United States. They are based on the
assumption that local and socially diverse ownership of radio stations will
lead to better representation of concerns as they are distributed in society.
Second, concentrated mass media has been criticized as giving the owners too
much power--which they either employ themselves or sell to the highest
bidder--over what is said and how it is evaluated. Third, the
advertising-supported media needs to attract large audiences, leading
programming away from the genuinely politically important, challenging, and
engaging, and toward the titillating or the soothing. This critique has
emphasized the tension between business interests and journalistic ethics, and
the claims that market imperatives and the bottom line lead to shoddy or
cowering reporting; quiescence in majority tastes and positions in order to
maximize audience; spectacle rather than substantive conversation of issues
even when political matters are covered; and an emphasis on entertainment over
news and analysis.

Three primary defenses or advantages have also been seen in these media: first
is their independence from government, party, or upper-class largesse,
particularly against the background of the state-owned media in authoritarian
[[pg 198]] regimes, and given the high cost of production and communication,
commercial mass media have been seen as necessary to create a public sphere
grounded outside government. Second is the professionalism and large newsrooms
that commercial mass media can afford to support to perform the watchdog
function in complex societies. Because of their market-based revenues, they can
replace universal intake with well-researched observations that citizens would
not otherwise have made, and that are critical to a well-functioning democracy.
Third, their near-universal visibility and independence enable them to identify
important issues percolating in society. They can provide a platform to put
them on the public agenda. They can express, filter, and accredit statements
about these issues, so that they become well-specified subjects and feasible
objects for public debate among informed citizens. That is to say, the limited
number of points to which all are tuned and the limited number of "slots"
available for speaking on these media form the basis for providing the
synthesis required for public opinion and raising the salience of matters of
public concern to the point of potential collective action. In the remainder of
this chapter, I will explain the criticisms of the commercial mass media in
more detail. I then take up in chapter 7 the question of how the Internet in
general, and the rise of nonmarket and cooperative individual production in the
networked information economy in particular, can solve or alleviate those
problems while fulfilling some of the important roles of mass media in
democracies today.

MASS MEDIA AS A PLATFORM FOR THE PUBLIC SPHERE
..............................................

The structure of mass media as a mode of communications imposes a certain set
of basic characteristics on the kind of public conversation it makes possible.
First, it is always communication from a small number of people, organized into
an even smaller number of distinct outlets, to an audience several orders of
magnitude larger, unlimited in principle in its membership except by the
production capacity of the media itself--which, in the case of print, may mean
the number of copies, and in radio, television, cable, and the like, means
whatever physical-reach constraints, if any, are imposed by the technology and
business organizational arrangements used by these outlets. In large, complex,
modern societies, no one knows everything. The initial function of a platform
for the public sphere is one of intake--taking into the system the observations
and opinions of as many members of society as possible as potential objects of
public concern and consideration. The [[pg 199]] radical difference between the
number of intake points the mass media have and the range and diversity of
human existence in large complex societies assures a large degree of
information loss at the intake stage. Second, the vast difference between the
number of speakers and the number of listeners, and the finished-goods style of
mass-media products, imposes significant constraints on the extent to which
these media can be open to feedback-- that is, to responsive communications
that are tied together as a conversation with multiple reciprocal moves from
both sides of the conversation. Third, the immense and very loosely defined
audience of mass media affects the filtering and synthesis functions of the
mass media as a platform for the public sphere. One of the observations
regarding the content of newspapers in the late eighteenth to mid-nineteenth
centuries was the shift they took as their circulation increased--from
party-oriented, based in relatively thick communities of interest and practice,
to fact- and sensation-oriented, with content that made thinner requirements on
their users in order to achieve broader and more weakly defined readership.
Fourth, and finally, because of the high costs of organizing these media, the
functions of intake, sorting for relevance, accrediting, and synthesis are all
combined in the hands of the same media operators, selected initially for their
capacity to pool the capital necessary to communicate the information to wide
audiences. While all these functions are necessary for a usable public sphere,
the correlation of capacity to pool capital resources with capacity to offer
the best possible filtering and synthesis is not obvious. In addition to basic
structural constraints that come from the characteristic of a communications
modality that can properly be called "mass media," there are also critiques
that arise more specifically from the business models that have characterized
the commercial mass media over the course of most of the twentieth century.
Media markets are relatively concentrated, and the most common business model
involves selling the attention of large audiences to commercial advertisers.

MEDIA CONCENTRATION: THE POWER OF OWNERSHIP AND MONEY
.....................................................

The Sinclair Broadcast Group is one of the largest owners of television
broadcast stations in the United States. The group's 2003 Annual Report proudly
states in its title, "Our Company. Your Message. 26 Million Households"; that
is, roughly one quarter of U.S. households. Sinclair owns and operates or
provides programming and sales to sixty-two stations in the United States,
including multiple local affiliates of NBC, ABC, CBS, and [[pg 200]] Fox. In
April 2004, ABC News's program Nightline dedicated a special program to reading
the names of American service personnel who had been killed in the Iraq War.
The management of Sinclair decided that its seven ABC affiliates would not air
the program, defending its decision because the program "appears to be
motivated by a political agenda designed to undermine the efforts of the United
States in Iraq."[^56] At the time, the rising number of American casualties in
Iraq was already a major factor in the 2004 presidential election campaign, and
both ABC's decision to air the program, and Sinclair's decision to refuse to
carry it could be seen as interventions by the media in setting the political
agenda and contributing to the public debate. It is difficult to gauge the
politics of a commercial organization, but one rough proxy is political
donations. In the case of Sinclair, 95 percent of the donations made by
individuals associated with the company during the 2004 election cycle went to
Republicans, while only 5 percent went to Democrats.[^57] Contributions of
Disney, on the other hand, the owner of the ABC network, split about
seventy-thirty in favor of contribution to Democrats. It is difficult to parse
the extent to which political leanings of this sort are personal to the
executives and professional employees who make decisions about programming, and
to what extent these are more organizationally self-interested, depending on
the respective positions of the political parties on the conditions of the
industry's business. In some cases, it is quite obvious that the motives are
political. When one looks, for example, at contributions by Disney's film
division, they are distributed 100 percent in favor of Democrats. This mostly
seems to reflect the large contributions of the Weinstein brothers, who run the
semi-independent studio Miramax, which also distributed Michael Moore's
politically explosive criticism of the Bush administration, Fahrenheit 9/11, in
2004. Sinclair's contributions were aligned with, though more skewed than,
those of the National Association of Broadcasters political action committee,
which were distributed 61 percent to 39 percent in favor of Republicans. Here
the possible motivation is that Republicans have espoused a regulatory agenda
at the Federal Communications Commission that allows broadcasters greater
freedom to consolidate and to operate more as businesses and less as public
trustees.

The basic point is not, of course, to trace the particular politics of one
programming decision or another. It is the relative power of those who manage
the mass media when it so dominates public discourse as to shape public
perceptions and public debate. This power can be brought to bear throughout the
components of the platform, from the intake function (what [[pg 201]] facts
about the world are observed) to the filtration and synthesis (the selection of
materials, their presentation, and the selection of who will debate them and in
what format). These are all central to forming the agenda that the public
perceives, choreographing the discussion, the range of opinions perceived and
admitted into the conversation, and through these, ultimately, choreographing
the perceived consensus and the range of permissible debate. One might think of
this as "the Berlusconi effect." Thinking in terms of a particular individual,
known for a personal managerial style, who translated the power of control over
media into his election as prime minister of his country symbolizes well the
concern, but of course does not exhaust the problem, which is both broader and
more subtle than the concern with the possibility that mass media will be owned
by individuals who would exert total control over these media and translate
their control into immediate political power, manufacturing and shaping the
appearance of a public sphere, rather than providing a platform for one.

The power of the commercial mass media depends on the degree of concentration
in mass-media markets. A million equally watched channels do not exercise
power. Concentration is a common word used to describe the power media exercise
when there are only few outlets, but a tricky one because it implies two very
distinct phenomena. The first is a lack of competition in a market, to a degree
sufficient to allow a firm to exercise power over its pricing. This is the
antitrust sense. The second, very different concern might be called
"mindshare." That is, media is "concentrated" when a small number of media
firms play a large role as the channel from and to a substantial majority of
readers, viewers, and listeners in a given politically relevant social unit.

If one thinks that commercial firms operating in a market will always "give the
audience what it wants" and that what the audience wants is a fully
representative cross-section of all observations and opinions relevant to
public discourse, then the antitrust sense would be the only one that mattered.
A competitive market would force any market actor simply to reflect the range
of available opinions actually held in the public. Even by this measure,
however, there continue to be debates about how one should define the relevant
market and what one is measuring. The more one includes all potential
nationally available sources of information, newspapers, magazines, television,
radio, satellite, cable, and the like, the less concentrated the market seems.
However, as Eli Noam's recent work on local media concentration has argued,
treating a tiny television station on Long Island as equivalent to [[pg 202]]
WCBS in New York severely underrepresents the power of mass media over their
audience. Noam offered the most comprehensive analysis currently available of
the patterns of concentration where media are actually accessed-- locally,
where people live--from 1984 to 2001-2002. Most media are consumed
locally--because of the cost of national distribution of paper newspapers, and
because of the technical and regulatory constraints on nationwide distribution
of radio and television. Noam computed two measures of market concentration for
each of thirty local markets: the HerfindahlHirschman Index (HHI), a standard
method used by the Department of Justice to measure market concentration for
antitrust purposes; and what he calls a C4 index--that is, the market share of
the top four firms in a market, and C1, the share of the top single firm in the
market. He found that, based on the HHI index, all the local media markets are
highly concentrated. In the standard measure, a market with an index of less
than 1,000 is not concentrated, a market with an index of 1,000-1,800 is
moderately concentrated, and a market with an index of above 1,800 on the HHI
is highly concentrated. Noam found that local radio, which had an index below
1,000 between 1984 and 1992, rose over the course of the following years
substantially. Regulatory restrictions were loosened over the course of the
1990s, resulting by the end of the decade in an HHI index measure of 2,400 for
big cities, and higher for medium-sized and small markets. And yet, radio is
less concentrated than local multichannel television (cable and satellite) with
an HHI of 6,300, local magazines with an HHI of 6,859, and local newspapers
with an HHI of 7,621. The only form of media whose concentration has declined
to less than highly concentrated (HHI 1,714) is local television, as the rise
of new networks and local stations' viability on cable has moved us away from
the three-network world of 1984. It is still the case, however, that the top
four television stations capture 73 percent of the viewers in most markets, and
62 percent in large markets. The most concentrated media in local markets are
newspapers, which, except for the few largest markets, operate on a
one-newspaper town model. C1 concentration has grown in this area to 83 percent
of readership for the leading papers, and an HHI of 7,621.

The degree of concentration in media markets supports the proposition that
owners of media can either exercise power over the programming they provide or
what they write, or sell their power over programming to those who would like
to shape opinions. Even if one were therefore to hold the Pollyannaish view
that market-based media in a competitive market would [[pg 203]] be constrained
by competition to give citizens what they need, as Ed Baker put it, there is no
reason to think the same in these kinds of highly concentrated markets. As it
turns out, a long tradition of scholarship has also developed the claim that
even without such high levels of concentration in the antitrust sense,
advertiser-supported media markets are hardly good mechanisms for assuring that
the contents of the media provide a good reflection of the information citizens
need to know as members of a polity, the range of opinions and views about what
ought to occupy the public, and what solutions are available to those problems
that are perceived and discussed.[^58] First, we have long known that
advertiser-supported media suffer from more or less well-defined failures,
purely as market mechanisms, at representing the actual distribution of
first-best preferences of audiences. As I describe in more detail in the next
section, whether providers in any market structure, from monopoly to full
competition, will even try to serve firstbest preferences of their audience
turns out to be a function of the distribution of actual first-best and
second-best preferences, and the number of "channels." Second, there is a
systematic analytic problem with defining consumer demand for information.
Perfect information is a precondition to an efficient market, not its output.
In order for consumers to value information or an opinion fully, they must know
it and assimilate it to their own worldview and understanding. However, the
basic problem to be solved by media markets is precisely to select which
information people will value if they in fact come to know it, so it is
impossible to gauge the value of a unit of information before it has been
produced, and hence to base production decisions on actual existing user
preferences. The result is that, even if media markets were perfectly
competitive, a substantial degree of discretion and influence would remain in
the hands of commercial media owners.

The actual cultural practice of mass-media production and consumption is more
complex than either the view of "efficient media markets" across the board or
the general case against media concentration and commercialism. Many of the
relevant companies are public companies, answerable to at least large
institutional shareholders, and made up of managements that need not be
monolithic in their political alignment or judgment as to the desirability of
making political gains as opposed to market share. Unless there is economic or
charismatic leadership of the type of a William Randolph Hearst or a Rupert
Murdoch, organizations usually have complex structures, with varying degrees of
freedom for local editors, reporters, and midlevel managers to tug and pull at
the fabric of programming. Different media companies [[pg 204]] also have
different business models, and aim at different market segments. The New York
Times, Wall Street Journal, and Washington Post do not aim at the same audience
as most daily local newspapers in the United States. They are aimed at elites,
who want to buy newspapers that can credibly claim to embody highly
professional journalism. This requires separation of editorial from business
decisions--at least for some segments of the newspapers that are critical in
attracting those readers. The degree to which the Berlusconi effect in its
full-blown form of individual or self-consciously directed political power
through shaping of the public sphere will apply is not one that can necessarily
be answered as a matter of a priori theoretical framework for all mass media.
Instead, it is a concern, a tendency, whose actual salience in any given public
sphere or set of firms is the product of historical contingency, different from
one country to another and one period to another. It will depend on the
strategies of particular companies and their relative mindshare in a society.
However, it is clear and structurally characteristic of mass media that a
society that depends for its public sphere on a relatively small number of
actors, usually firms, to provide most of the platform of its public sphere, is
setting itself up for, at least, a form of discourse elitism. In other words,
those who are on the inside of the media will be able to exert substantially
greater influence over the agenda, the shape of the conversation, and through
these the outcomes of public discourse, than other individuals or groups in
society. Moreover, for commercial organizations, this power could be sold--and
as a business model, one should expect it to be. The most direct way to sell
influence is explicit political advertising, but just as we see "product
placement" in movies as a form of advertising, we see advertiser influence on
the content of the editorial materials. Part of this influence is directly
substantive and political. Another is the source of the second critique of
commercial mass media.

COMMERCIALISM, JOURNALISM, AND POLITICAL INERTNESS
..................................................

The second cluster of concerns about the commercial mass media is the degree to
which their commercialism undermines their will and capacity to provide a
platform for public, politically oriented discourse. The concern is, in this
sense, the opposite of the concern with excessive power. Rather than the fear
that the concentrated mass media will exercise its power to pull opinion in its
owners' interest, the fear is that the commercial interests of these media will
cause them to pull content away from matters of genuine [[pg 205]] political
concern altogether. It is typified in a quote offered by Ben Bagdikian,
attributed to W. R. Nelson, publisher of the Kansas City Star in 1915:
"Newspapers are read at the breakfast table and dinner tables. God's great gift
to man is appetite. Put nothing in the paper that will destroy it."[^59]
Examples abound, but the basic analytic structure of the claim is fairly simple
and consists of three distinct components. First, advertiser-supported media
need to achieve the largest audience possible, not the most engaged or
satisfied audience possible. This leads such media to focus on
lowest-common-denominator programming and materials that have broad second-best
appeal, rather than trying to tailor their programming to the true first-best
preferences of well-defined segments of the audience. Second, issues of genuine
public concern and potential political contention are toned down and structured
as a performance between iconic representations of large bodies of opinion, in
order to avoid alienating too much of the audience. This is the reemergence of
spectacle that Habermas identified in The Transformation of the Public Sphere.
The tendency toward lowest-common-denominator programming translates in the
political sphere into a focus on fairly well-defined, iconic views, and to
avoidance of genuinely controversial material, because it is easier to lose an
audience by offending its members than by being only mildly interesting. The
steady structuring of the media as professional, commercial, and one way over
150 years has led to a pattern whereby, when political debate is communicated,
it is mostly communicated as performance. Someone represents a party or widely
known opinion, and is juxtaposed with others who similarly represent
alternative widely known views. These avatars of public opinion then enact a
clash of opinion, orchestrated in order to leave the media neutral and free of
blame, in the eyes of their viewers, for espousing an offensively partisan
view. Third, and finally, this business logic often stands in contradiction to
journalistic ethic. While there are niche markets for high-end journalism and
strong opinion, outlets that serve those markets are specialized. Those that
cater to broader markets need to subject journalistic ethic to business
necessity, emphasizing celebrities or local crime over distant famines or a
careful analysis of economic policy.

The basic drive behind programming choices in advertising-supported mass media
was explored in the context of the problem of "program diversity" and
competition. It relies on a type of analysis introduced by Peter Steiner in
1952. The basic model argued that advertiser-supported media are sensitive only
to the number of viewers, not the intensity of their satisfaction. This created
an odd situation, where competitors would tend to divide [[pg 206]] among them
the largest market segments, and leave smaller slices of the audience unserved,
whereas a monopolist would serve each market segment, in order of size, until
it ran out of channels. Because it has no incentive to divide all the viewers
who want, for example, sitcoms, among two or more stations, a monopolist would
program a sitcom on one channel, and the next-most-desired program on the next
channel. Two competitors, on the other hand, would both potentially program
sitcoms, if dividing those who prefer sitcoms in half still yields a larger
total audience size than airing the next-most-desired program. To illustrate
this effect with a rather extreme hypothetical example, imagine that we are in
a television market of 10 million viewers. Suppose that the distribution of
preferences in the audience is as follows: 1,000,000 want to watch sitcoms;
750,000 want sports; 500,000 want local news; 250,000 want action movies; 9,990
are interested in foreign films; and 9,980 want programs on gardening. The
stark drop-off between action movies and foreign films and gardening is
intended to reflect the fact that the 7.5 million potential viewers who do not
fall into one of the first four clusters are distributed in hundreds of small
clusters, none commanding more than 10,000 viewers. Before we examine why this
extreme assumption is likely correct, let us first see what happens if it were.
Table 6.1 presents the programming choices that would typify those of competing
channels, based on the number of channels competing and the distribution of
preferences in the audience. It reflects the assumptions that each programmer
wants to maximize the number of viewers of its channel and that the viewers are
equally likely to watch one channel as another if both offer the same type of
programming. The numbers in parentheses next to the programming choice
represent the number of viewers the programmer can hope to attract given these
assumptions, not including the probability that some of the 7.5 million viewers
outside the main clusters will also tune in. In this extreme example, one would
need a system with more than 250 channels in order to start seeing something
other than sitcoms, sports, local news, and action movies. Why, however, is
such a distribution likely, or even plausible? The assumption is not intended
to represent an actual distribution of what people most prefer to watch.
Rather, it reflects the notion that many people have best preferences, fallback
preferences, and tolerable options. Their first-best preferences reflect what
they really want to watch, and people are highly diverse in this dimension.
Their fallback and tolerable preferences reflect the kinds of things they would
be willing to watch if nothing else is available, rather than getting up off
the sofa and going to a local cafe or reading a book. [[pg 207]]

*Table 6.1: Distribution of Channels Hypothetical*

No. of channels┆Programming Available (in thousands of viewers)
1┆sitcom (1000)
2┆sitcom (1000), sports (750)
3┆sitcom (1000 or 500), sports (750), indifferent between sitcoms and local news (500)
4┆sitcom (500), sports (750), sitcom (500), local news (500)
5┆sitcom (500), sports (375), sitcom (500), local news (500), sports (375)
6┆sitcom (333), sports (375), sitcom (333), local news (500), sports (375), sitcom (333)
7┆sitcom (333), sports (375), sitcom (333), local news (500), sports (375), sitcom (333), action movies (250)
8┆sitcom (333), sports (375), sitcom (333), local news (250), sports (375), sitcom (333), action movies (250), local news (250)
9┆sitcom (250), sports (375), sitcom (250), local news (250), sports (375), sitcom (250), action movies (250), local news (250), sitcom (250)
***┆***
250┆100 channels of sitcom (10); 75 channels of sports (10); 50 channels of local news (10); 25 channels of action movies (10)
251┆100 channels of sitcom (10); 75 channels of sports (10); 50 channels of local news (10); 25 channels of action movies (10); 1 foreign film channel (9.99)
252┆100 channels of sitcom (10); 75 channels of sports (10); 50 channels of local news (10); 25 channels of action movies (10); 1 foreign film channel (9.99); 1 gardening channel (9.98)

Here represented by sitcoms, sports, and the like, fallback options are more
widely shared, even among people whose first-best preferences differ widely,
because they represent what people will tolerate before switching, a much less
strict requirement than what they really want. This assumption follows Jack
Beebe's refinement of Steiner's model. Beebe established that media monopolists
would show nothing but common-denominator programs and that competition among
broadcasters would begin to serve the smaller preference clusters only if a
large enough number of channels were available. Such a model would explain the
broad cultural sense of Bruce Springsteen's song, "57 Channels (And Nothin'
On)," and why we saw the emergence of channels like Black Entertainment
Television, Univision (Spanish channel in the United States), or The History
Channel only when cable systems significantly expanded channel capacity, as
well as why direct- [[pg 208]] broadcast satellite and, more recently, digital
cable offerings were the first venue for twenty-four-hour-a-day cooking
channels and smaller minority-language channels.[^60]

While this work was developed in the context of analyzing media diversity of
offerings, it provides a foundation for understanding the programming choices
of all advertiser-supported mass media, including the press, in domains
relevant to the role they play as a platform for the public sphere. It provides
a framework for understanding, but also limiting, the applicability of the idea
that mass media will put nothing in the newspaper that will destroy the
reader's appetite. Controversial views and genuinely disturbing images,
descriptions, or arguments have a higher likelihood of turning readers,
listeners, and viewers away than entertainment, mildly interesting and amusing
human-interest stories, and a steady flow of basic crime and courtroom dramas,
and similar fare typical of local television newscasts and newspapers. On the
other hand, depending on the number of channels, there are clearly market
segments for people who are "political junkies," or engaged elites, who can
support some small number of outlets aimed at that crowd. The New York Times or
the Wall Street Journal are examples in print, programs like Meet the Press or
Nightline and perhaps channels like CNN and Fox News are examples of the
possibility and limitations of this exception to the general
entertainment-oriented, noncontroversial, and politically inert style of
commercial mass media. The dynamic of programming to the lowest common
denominator can, however, iteratively replicate itself even within relatively
news- and elite-oriented media outlets. Even among news junkies, larger news
outlets must cater relatively to the mainstream of its intended audience. Too
strident a position or too probing an inquiry may slice the market segment to
which they sell too thin. This is likely what leads to the common criticism,
from both the Right and Left, that the same media are too "liberal" and too
"conservative," respectively. By contrast, magazines, whose business model can
support much lower circulation levels, exhibit a substantially greater will for
political engagement and analysis than even the relatively
political-readership-oriented, larger-circulation mass media. By definition,
however, the media that cater to these niche markets serve only a small segment
of the political community. Fox News in the United States appears to be a
powerful counterexample to this trend. It is difficult to pinpoint why. The
channel likely represents a composite of the Berlusconi effect, the high market
segmentation made possible by high-capacity cable [[pg 209]] systems, the very
large market segment of Republicans, and the relatively polarized tone of
American political culture since the early 1990s.

The mass-media model as a whole, with the same caveat for niche markets, does
not lend itself well to in-depth discussion and dialog. High professionalism
can, to some extent, compensate for the basic structural problem of a medium
built on the model of a small number of producers transmitting to an audience
that is many orders of magnitude larger. The basic problem occurs at the intake
and synthesis stages of communication. However diligent they may be, a small
number of professional reporters, embedded as they are within social segments
that are part of social, economic, and political elites, are a relatively
stunted mechanism for intake. If one seeks to collect the wide range of
individual observations, experiences, and opinions that make up the actual
universe of concerns and opinions of a large public as a basic input into the
public sphere, before filtering, the centralized model of mass media provides a
limited means of capturing those insights. On the back end of the communication
of public discourse, concentrated media of necessity must structure most
"participants" in the debate as passive recipients of finished messages and
images. That is the core characteristic of mass media: Content is produced
prior to transmission in a relatively small number of centers, and when
finished is then transmitted to a mass audience, which consumes it. This is the
basis of the claim of the role of professional journalism to begin with,
separating it from nonprofessional observations of those who consume its
products. The result of this basic structure of the media product is that
discussion and analysis of issues of common concern is an iconic representation
of discussion, a choreographed enactment of public debate. The participants are
selected for the fact that they represent wellunderstood, well-defined
positions among those actually prevalent in a population, the images and
stories are chosen to represent issues, and the public debate that is actually
facilitated (and is supposedly where synthesis of the opinions in public debate
actually happens) is in fact an already presynthesized portrayal of an argument
among avatars of relatively large segments of opinion as perceived by the
journalists and stagers of the debate. In the United States, this translates
into fairly standard formats of "on the left X, on the right Y," or "the
Republicans' position" versus "the Democrats' position." It translates into
"photo-op" moments of publicly enacting an idea, a policy position, or a state
of affairs--whether it is a president landing on an aircraft carrier to
represent security and the successful completion of a [[pg 210]] controversial
war, or a candidate hunting with his buddies to represent a position on gun
control. It is important to recognize that by describing these characteristics,
I am not identifying failures of imagination, thoughtfulness, or
professionalism on the part of media organizations. These are simply
characteristics of a mass-mediated public sphere; modes of communication that
offer the path of least resistance given the characteristics of the production
and distribution process of mass media, particularly commercial mass media.
There are partial exceptions, as there are to the diversity of content or the
emphasis on entertainment value, but these do not reflect what most citizens
read, see, or hear. The phenomenon of talk radio and call-in shows represents a
very different, but certainly not more reflective form. They represent the
pornography and violence of political discourse--a combination of exhibitionism
and voyeurism intended to entertain us with opportunities to act out suppressed
desires and to glimpse what we might be like if we allowed ourselves more
leeway from what it means to be a well-socialized adult.

The two basic critiques of commercial mass media coalesce on the conflict
between journalistic ethics and the necessities of commercialism. If
professional journalists seek to perform a robust watchdog function, to inform
their readers and viewers, and to provoke and explore in depth, then the
dynamics of both power and lowest-common-denominator appeal push back.
Different organizations, with different degrees of managerial control,
editorial independence, internal organizational culture, and freedom from
competitive pressures, with different intended market segments, will resolve
these tensions differently. A quick reading of the conclusions of some media
scholarship, and more commonly, arguments made in public debates over the
media, would tend to lump "the media" as a single entity, with a single set of
failures. In fact, unsurprisingly, the literature suggests substantial
heterogeneity among organizations and media. Television seems to be the worst
culprit on the dimension of political inertness. Print media, both magazines
and some newspapers, include significant variation in the degree to which they
fit these general models of failure.

As we turn now to consider the advantages of the introduction of Internet
communications, we shall see how this new model can complement the mass media
and alleviate its worst weaknesses. In particular, the discussion focuses on
the emergence of the networked information economy and the relatively larger
role it makes feasible for nonmarket actors and for radically distributed
production of information and culture. One need not adopt the position [[pg
211]] that the commercial mass media are somehow abusive, evil,
corporate-controlled giants, and that the Internet is the ideal Jeffersonian
republic in order to track a series of genuine improvements represented by what
the new emerging modalities of public communication can do as platforms for the
public sphere. Greater access to means of direct individual communications, to
collaborative speech platforms, and to nonmarket producers more generally can
complement the commercial mass media and contribute to a significantly improved
public sphere. [[pg 212]]


----------------------------------------
CHAPTER 7 - POLITICAL FREEDOM PART 2: EMERGENCE OF THE NETWORKED PUBLIC SPHERE
------------------------------------------------------------------------------

The fundamental elements of the difference between the networked information
economy and the mass media are network architecture and the cost of becoming a
speaker. The first element is the shift from a hub-and-spoke architecture with
unidirectional links to the end points in the mass media, to distributed
architecture with multidirectional connections among all nodes in the networked
information environment. The second is the practical elimination of
communications costs as a barrier to speaking across associational boundaries.
Together, these characteristics have fundamentally altered the capacity of
individuals, acting alone or with others, to be active participants in the
public sphere as opposed to its passive readers, listeners, or viewers. For
authoritarian countries, this means that it is harder and more costly, though
not perhaps entirely impossible, to both be networked and maintain control over
their public spheres. China seems to be doing too good a job of this in the
middle of the first decade of this century for us to say much more than that it
is harder to maintain control, and therefore that at least in some
authoritarian regimes, control will be looser. In [[pg 213]] liberal
democracies, ubiquitous individual ability to produce information creates the
potential for near-universal intake. It therefore portends significant, though
not inevitable, changes in the structure of the public sphere from the
commercial mass-media environment. These changes raise challenges for
filtering. They underlie some of the critiques of the claims about the
democratizing effect of the Internet that I explore later in this chapter.
Fundamentally, however, they are the roots of possible change. Beginning with
the cost of sending an e-mail to some number of friends or to a mailing list of
people interested in a particular subject, to the cost of setting up a Web site
or a blog, and through to the possibility of maintaining interactive
conversations with large numbers of people through sites like Slashdot, the
cost of being a speaker in a regional, national, or even international
political conversation is several orders of magnitude lower than the cost of
speaking in the mass-mediated environment. This, in turn, leads to several
orders of magnitude more speakers and participants in conversation and,
ultimately, in the public sphere.

The change is as much qualitative as it is quantitative. The qualitative change
is represented in the experience of being a potential speaker, as opposed to
simply a listener and voter. It relates to the self-perception of individuals
in society and the culture of participation they can adopt. The easy
possibility of communicating effectively into the public sphere allows
individuals to reorient themselves from passive readers and listeners to
potential speakers and participants in a conversation. The way we listen to
what we hear changes because of this; as does, perhaps most fundamentally, the
way we observe and process daily events in our lives. We no longer need to take
these as merely private observations, but as potential subjects for public
communication. This change affects the relative power of the media. It affects
the structure of intake of observations and views. It affects the presentation
of issues and observations for discourse. It affects the way issues are
filtered, for whom and by whom. Finally, it affects the ways in which positions
are crystallized and synthesized, sometimes still by being amplified to the
point that the mass media take them as inputs and convert them into political
positions, but occasionally by direct organization of opinion and action to the
point of reaching a salience that drives the political process directly.

The basic case for the democratizing effect of the Internet, as seen from the
perspective of the mid-1990s, was articulated in an opinion of the /U.S.
Supreme Court in Reno v. ACLU/: [[pg 214]]

  The Web is thus comparable, from the readers' viewpoint, to both a vast
  library including millions of readily available and indexed publications and
  a sprawling mall offering goods and services. From the publishers' point of
  view, it constitutes a vast platform from which to address and hear from a
  world-wide audience of millions of readers, viewers, researchers, and buyers.
  Any person or organization with a computer connected to the Internet can
  "publish" information. Publishers include government agencies, educational
  institutions, commercial entities, advocacy groups, and individuals. . . .

  Through the use of chat rooms, any person with a phone line can become a town
  crier with a voice that resonates farther than it could from any soapbox.
  Through the use of Web pages, mail exploders, and newsgroups, the same
  individual can become a pamphleteer. As the District Court found, "the
  content on the Internet is as diverse as human thought."[^61]

The observations of what is different and unique about this new medium relative
to those that dominated the twentieth century are already present in the quotes
from the Court. There are two distinct types of effects. The first, as the
Court notes from "the readers' perspective," is the abundance and diversity of
human expression available to anyone, anywhere, in a way that was not feasible
in the mass-mediated environment. The second, and more fundamental, is that
anyone can be a publisher, including individuals, educational institutions, and
nongovernmental organizations (NGOs), alongside the traditional speakers of the
mass-media environment--government and commercial entities.

Since the end of the 1990s there has been significant criticism of this early
conception of the democratizing effects of the Internet. One line of critique
includes variants of the Babel objection: the concern that information overload
will lead to fragmentation of discourse, polarization, and the loss of
political community. A different and descriptively contradictory line of
critique suggests that the Internet is, in fact, exhibiting concentration: Both
infrastructure and, more fundamentally, patterns of attention are much less
distributed than we thought. As a consequence, the Internet diverges from the
mass media much less than we thought in the 1990s and significantly less than
we might hope.

I begin the chapter by offering a menu of the core technologies and usage
patterns that can be said, as of the middle of the first decade of the
twentyfirst century, to represent the core Internet-based technologies of
democratic discourse. I then use two case studies to describe the social and
economic practices through which these tools are implemented to construct the
public [[pg 215]] sphere, and how these practices differ quite radically from
the mass-media model. On the background of these stories, we are then able to
consider the critiques that have been leveled against the claim that the
Internet democratizes. Close examination of the application of networked
information economy to the production of the public sphere suggests that the
emerging networked public sphere offers significant improvements over one
dominated by commercial mass media. Throughout the discussion, it is important
to keep in mind that the relevant comparison is always between the public
sphere that we in fact had throughout the twentieth century, the one dominated
by mass media, that is the baseline for comparison, not the utopian image of
the "everyone a pamphleteer" that animated the hopes of the 1990s for Internet
democracy. Departures from the naïve utopia are not signs that the Internet
does not democratize, after all. They are merely signs that the medium and its
analysis are maturing.

BASIC TOOLS OF NETWORKED COMMUNICATION
......................................

Analyzing the effect of the networked information environment on public
discourse by cataloging the currently popular tools for communication is, to
some extent, self-defeating. These will undoubtedly be supplanted by new ones.
Analyzing this effect without having a sense of what these tools are or how
they are being used is, on the other hand, impossible. This leaves us with the
need to catalog what is, while trying to abstract from what is being used to
what relationships of information and communication are emerging, and from
these to transpose to a theory of the networked information economy as a new
platform for the public sphere.

E-mail is the most popular application on the Net. It is cheap and trivially
easy to use. Basic e-mail, as currently used, is not ideal for public
communications. While it provides a cheap and efficient means of communicating
with large numbers of individuals who are not part of one's basic set of social
associations, the presence of large amounts of commercial spam and the amount
of mail flowing in and out of mailboxes make indiscriminate e-mail
distributions a relatively poor mechanism for being heard. E-mails to smaller
groups, preselected by the sender for having some interest in a subject or
relationship to the sender, do, however, provide a rudimentary mechanism for
communicating observations, ideas, and opinions to a significant circle, on an
ad hoc basis. Mailing lists are more stable and self-selecting, and [[pg 216]]
therefore more significant as a basic tool for the networked public sphere.
Some mailing lists are moderated or edited, and run by one or a small number of
editors. Others are not edited in any significant way. What separates mailing
lists from most Web-based uses is the fact that they push the information on
them into the mailbox of subscribers. Because of their attention limits,
individuals restrict their subscriptions, so posting on a mailing list tends to
be done by and for people who have self-selected as having a heightened degree
of common interest, substantive or contextual. It therefore enhances the degree
to which one is heard by those already interested in a topic. It is not a
communications model of one-to-many, or few-to-many as broadcast is to an open,
undefined class of audience members. Instead, it allows one, or a few, or even
a limited large group to communicate to a large but limited group, where the
limit is self-selection as being interested or even immersed in a subject.

The World Wide Web is the other major platform for tools that individuals use
to communicate in the networked public sphere. It enables a wide range of
applications, from basic static Web pages, to, more recently, blogs and various
social-software-mediated platforms for large-scale conversations of the type
described in chapter 3--like Slashdot. Static Web pages are the individual's
basic "broadcast" medium. They allow any individual or organization to present
basic texts, sounds, and images pertaining to their position. They allow small
NGOs to have a worldwide presence and visibility. They allow individuals to
offer thoughts and commentaries. They allow the creation of a vast, searchable
database of information, observations, and opinions, available at low cost for
anyone, both to read and write into. This does not yet mean that all these
statements are heard by the relevant others to whom they are addressed.
Substantial analysis is devoted to that problem, but first let us complete the
catalog of tools and information flow structures.

One Web-based tool and an emerging cultural practice around it that extends the
basic characteristics of Web sites as media for the political public sphere are
Web logs, or blogs. Blogs are a tool and an approach to using the Web that
extends the use of Web pages in two significant ways. Technically, blogs are
part of a broader category of innovations that make the web "writable." That
is, they make Web pages easily capable of modification through a simple
interface. They can be modified from anywhere with a networked computer, and
the results of writing onto the Web page are immediately available to anyone
who accesses the blog to read. This technical change resulted in two
divergences from the cultural practice of Web sites [[pg 217]] in the 1990s.
First, they allowed the evolution of a journal-style Web page, where individual
short posts are added to the Web site in short or large intervals. As practice
has developed over the past few years, these posts are usually archived
chronologically. For many users, this means that blogs have become a form of
personal journal, updated daily or so, for their own use and perhaps for the
use of a very small group of friends. What is significant about this
characteristic from the perspective of the construction of the public sphere is
that blogs enable individuals to write to their Web pages in journalism
time--that is, hourly, daily, weekly--whereas Web page culture that preceded it
tended to be slower moving: less an equivalent of reportage than of the essay.
Today, one certainly finds individuals using blog software to maintain what are
essentially static Web pages, to which they add essays or content occasionally,
and Web sites that do not use blogging technology but are updated daily. The
public sphere function is based on the content and cadence--that is, the use
practice--not the technical platform.

The second critical innovation of the writable Web in general and of blogs in
particular was the fact that in addition to the owner, readers/users could
write to the blog. Blogging software allows the person who runs a blog to
permit some, all, or none of the readers to post comments to the blog, with or
without retaining power to edit or moderate the posts that go on, and those
that do not. The result is therefore not only that many more people write
finished statements and disseminate them widely, but also that the end product
is a weighted conversation, rather than a finished good. It is a conversation
because of the common practice of allowing and posting comments, as well as
comments to these comments. Blog writers--bloggers-- often post their own
responses in the comment section or address comments in the primary section.
Blog-based conversation is weighted, because the culture and technical
affordances of blogging give the owner of the blog greater weight in deciding
who gets to post or comment and who gets to decide these questions. Different
blogs use these capabilities differently; some opt for broader intake and
discussion on the board, others for a more tightly edited blog. In all these
cases, however, the communications model or information-flow structure that
blogs facilitate is a weighted conversation that takes the form of one or a
group of primary contributors/authors, together with some larger number, often
many, secondary contributors, communicating to an unlimited number of many
readers.

The writable Web also encompasses another set of practices that are distinct,
but that are often pooled in the literature together with blogs. These [[pg
218]] are the various larger-scale, collaborative-content production systems
available on the Web, of the type described in chapter 3. Two basic
characteristics make sites like Slashdot or /Wikipedia/ different from blogs.
First, they are intended for, and used by, very large groups, rather than
intended to facilitate a conversation weighted toward one or a small number of
primary speakers. Unlike blogs, they are not media for individual or small
group expression with a conversation feature. They are intrinsically group
communication media. They therefore incorporate social software solutions to
avoid deterioration into chaos--peer review, structured posting privileges,
reputation systems, and so on. Second, in the case of Wikis, the conversation
platform is anchored by a common text. From the perspective of facilitating the
synthesis of positions and opinions, the presence of collaborative authorship
of texts offers an additional degree of viscosity to the conversation, so that
views "stick" to each other, must jostle for space, and accommodate each other.
In the process, the output is more easily recognizable as a collective output
and a salient opinion or observation than where the form of the conversation is
more free-flowing exchange of competing views.

Common to all these Web-based tools--both static and dynamic, individual and
cooperative--are linking, quotation, and presentation. It is at the very core
of the hypertext markup language (HTML) to make referencing easy. And it is at
the very core of a radically distributed network to allow materials to be
archived by whoever wants to archive them, and then to be accessible to whoever
has the reference. Around these easy capabilities, the cultural practice has
emerged to reference through links for easy transition from your own page or
post to the one you are referring to--whether as inspiration or in
disagreement. This culture is fundamentally different from the mass-media
culture, where sending a five-hundred-page report to millions of users is hard
and expensive. In the mass media, therefore, instead of allowing readers to
read the report alongside its review, all that is offered is the professional
review in the context of a culture that trusts the reviewer. On the Web,
linking to original materials and references is considered a core
characteristic of communication. The culture is oriented toward "see for
yourself." Confidence in an observation comes from a combination of the
reputation of the speaker as it has emerged over time, reading underlying
sources you believe you have some competence to evaluate for yourself, and
knowing that for any given referenced claim or source, there is some group of
people out there, unaffiliated with the reviewer or speaker, who will have
access to the source and the means for making their disagreement with the [[pg
219]] speaker's views known. Linking and "see for yourself" represent a
radically different and more participatory model of accreditation than typified
the mass media.

Another dimension that is less well developed in the United States than it is
in Europe and East Asia is mobility, or the spatial and temporal ubiquity of
basic tools for observing and commenting on the world we inhabit. Dan Gillmor
is clearly right to include these basic characteristics in his book We the
Media, adding to the core tools of what he describes as a transformation in
journalism, short message service (SMS), and mobile connected cameras to
mailing lists, Web logs, Wikis, and other tools. The United States has remained
mostly a PC-based networked system, whereas in Europe and Asia, there has been
more substantial growth in handheld devices, primarily mobile phones. In these
domains, SMS--the "e-mail" of mobile phones--and camera phones have become
critical sources of information, in real time. In some poor countries, where
cell phone minutes remain very (even prohibitively) expensive for many users
and where landlines may not exist, text messaging is becoming a central and
ubiquitous communication tool. What these suggest to us is a transition, as the
capabilities of both systems converge, to widespread availability of the
ability to register and communicate observations in text, audio, and video,
wherever we are and whenever we wish. Drazen Pantic tells of how listeners of
Internet-based Radio B-92 in Belgrade reported events in their neighborhoods
after the broadcast station had been shut down by the Milosevic regime. Howard
Rheingold describes in Smart Mobs how citizens of the Philippines used SMS to
organize real-time movements and action to overthrow their government. In a
complex modern society, where things that matter can happen anywhere and at any
time, the capacities of people armed with the means of recording, rendering,
and communicating their observations change their relationship to the events
that surround them. Whatever one sees and hears can be treated as input into
public debate in ways that were impossible when capturing, rendering, and
communicating were facilities reserved to a handful of organizations and a few
thousands of their employees.

NETWORKED INFORMATION ECONOMY MEETS THE PUBLIC SPHERE
.....................................................

The networked public sphere is not made of tools, but of social production
practices that these tools enable. The primary effect of the Internet on the
[[pg 220]] public sphere in liberal societies relies on the information and
cultural production activity of emerging nonmarket actors: individuals working
alone and cooperatively with others, more formal associations like NGOs, and
their feedback effect on the mainstream media itself. These enable the
networked public sphere to moderate the two major concerns with commercial mass
media as a platform for the public sphere: (1) the excessive power it gives its
owners, and (2) its tendency, when owners do not dedicate their media to exert
power, to foster an inert polity. More fundamentally, the social practices of
information and discourse allow a very large number of actors to see themselves
as potential contributors to public discourse and as potential actors in
political arenas, rather than mostly passive recipients of mediated information
who occasionally can vote their preferences. In this section, I offer two
detailed stories that highlight different aspects of the effects of the
networked information economy on the construction of the public sphere. The
first story focuses on how the networked public sphere allows individuals to
monitor and disrupt the use of mass-media power, as well as organize for
political action. The second emphasizes in particular how the networked public
sphere allows individuals and groups of intense political engagement to report,
comment, and generally play the role traditionally assigned to the press in
observing, analyzing, and creating political salience for matters of public
interest. The case studies provide a context both for seeing how the networked
public sphere responds to the core failings of the commercial,
mass-media-dominated public sphere and for considering the critiques of the
Internet as a platform for a liberal public sphere.

Our first story concerns Sinclair Broadcasting and the 2004 U.S. presidential
election. It highlights the opportunities that mass-media owners have to exert
power over the public sphere, the variability within the media itself in how
this power is used, and, most significant for our purposes here, the potential
corrective effect of the networked information environment. At its core, it
suggests that the existence of radically decentralized outlets for individuals
and groups can provide a check on the excessive power that media owners were
able to exercise in the industrial information economy.

Sinclair, which owns major television stations in a number of what were
considered the most competitive and important states in the 2004 election--
including Ohio, Florida, Wisconsin, and Iowa--informed its staff and stations
that it planned to preempt the normal schedule of its sixty-two stations to air
a documentary called Stolen Honor: The Wounds That Never Heal, as a news
program, a week and a half before the elections.[^62] The documentary [[pg
221]] was reported to be a strident attack on Democratic candidate John Kerry's
Vietnam War service. One reporter in Sinclair's Washington bureau, who objected
to the program and described it as "blatant political propaganda," was promptly
fired.[^63] The fact that Sinclair owns stations reaching one quarter of U.S.
households, that it used its ownership to preempt local broadcast schedules,
and that it fired a reporter who objected to its decision, make this a classic
"Berlusconi effect" story, coupled with a poster-child case against media
concentration and the ownership of more than a small number of outlets by any
single owner. The story of Sinclair's plans broke on Saturday, October 9, 2004,
in the Los Angeles Times. Over the weekend, "official" responses were beginning
to emerge in the Democratic Party. The Kerry campaign raised questions about
whether the program violated election laws as an undeclared "in-kind"
contribution to the Bush campaign. By Tuesday, October 12, the Democratic
National Committee announced that it was filing a complaint with the Federal
Elections Commission (FEC), while seventeen Democratic senators wrote a letter
to the chairman of the Federal Communications Commission (FCC), demanding that
the commission investigate whether Sinclair was abusing the public trust in the
airwaves. Neither the FEC nor the FCC, however, acted or intervened throughout
the episode.

Alongside these standard avenues of response in the traditional public sphere
of commercial mass media, their regulators, and established parties, a very
different kind of response was brewing on the Net, in the blogosphere. On the
morning of October 9, 2004, the Los Angeles Times story was blogged on a number
of political blogs--Josh Marshall on talkingpointsmemo. com, Chris Bower on
MyDD.com, and Markos Moulitsas on dailyKos.com. By midday that Saturday,
October 9, two efforts aimed at organizing opposition to Sinclair were posted
in the dailyKos and MyDD. A "boycottSinclair" site was set up by one
individual, and was pointed to by these blogs. Chris Bowers on MyDD provided a
complete list of Sinclair stations and urged people to call the stations and
threaten to picket and boycott. By Sunday, October 10, the dailyKos posted a
list of national advertisers with Sinclair, urging readers to call them. On
Monday, October 11, MyDD linked to that list, while another blog,
theleftcoaster.com, posted a variety of action agenda items, from picketing
affiliates of Sinclair to suggesting that readers oppose Sinclair license
renewals, providing a link to the FCC site explaining the basic renewal process
and listing public-interest organizations to work with. That same day, another
individual, Nick Davis, started a Web site, [[pg 222]] BoycottSBG.com, on which
he posted the basic idea that a concerted boycott of local advertisers was the
way to go, while another site, stopsinclair.org, began pushing for a petition.
In the meantime, TalkingPoints published a letter from Reed Hundt, former
chairman of the FCC, to Sinclair, and continued finding tidbits about the film
and its maker. Later on Monday, TalkingPoints posted a letter from a reader who
suggested that stockholders of Sinclair could bring a derivative action. By
5:00 a.m. on the dawn of Tuesday, October 12, however, TalkingPoints began
pointing toward Davis's database on BoycottSBG.com. By 10:00 that morning,
Marshall posted on TalkingPoints a letter from an anonymous reader, which began
by saying: "I've worked in the media business for 30 years and I guarantee you
that sales is what these local TV stations are all about. They don't care about
license renewal or overwhelming public outrage. They care about sales only, so
only local advertisers can affect their decisions." This reader then outlined a
plan for how to watch and list all local advertisers, and then write to the
sales managers--not general managers--of the local stations and tell them which
advertisers you are going to call, and then call those. By 1:00 p.m. Marshall
posted a story of his own experience with this strategy. He used Davis's
database to identify an Ohio affiliate's local advertisers. He tried to call
the sales manager of the station, but could not get through. He then called the
advertisers. The post is a "how to" instruction manual, including admonitions
to remember that the advertisers know nothing of this, the story must be
explained, and accusatory tones avoided, and so on. Marshall then began to post
letters from readers who explained with whom they had talked--a particular
sales manager, for example--and who were then referred to national
headquarters. He continued to emphasize that advertisers were the right
addressees. By 5:00 p.m. that same Tuesday, Marshall was reporting more readers
writing in about experiences, and continued to steer his readers to sites that
helped them to identify their local affiliate's sales manager and their
advertisers.[^64]

By the morning of Wednesday, October 13, the boycott database already included
eight hundred advertisers, and was providing sample letters for users to send
to advertisers. Later that day, BoycottSBG reported that some participants in
the boycott had received reply e-mails telling them that their unsolicited
e-mail constituted illegal spam. Davis explained that the CANSPAM Act, the
relevant federal statute, applied only to commercial spam, and pointed users to
a law firm site that provided an overview of CANSPAM. By October 14, the
boycott effort was clearly bearing fruit. Davis [[pg 223]] reported that
Sinclair affiliates were threatening advertisers who cancelled advertisements
with legal action, and called for volunteer lawyers to help respond. Within a
brief period, he collected more than a dozen volunteers to help the
advertisers. Later that day, another blogger at grassroots nation.com had set
up a utility that allowed users to send an e-mail to all advertisers in the
BoycottSBG database. By the morning of Friday, October 15, Davis was reporting
more than fifty advertisers pulling ads, and three or four mainstream media
reports had picked up the boycott story and reported on it. That day, an
analyst at Lehman Brothers issued a research report that downgraded the
expected twelve-month outlook for the price of Sinclair stock, citing concerns
about loss of advertiser revenue and risk of tighter regulation. Mainstream
news reports over the weekend and the following week systematically placed that
report in context of local advertisers pulling their ads from Sinclair. On
Monday, October 18, the company's stock price dropped by 8 percent (while the
S&P 500 rose by about half a percent). The following morning, the stock dropped
a further 6 percent, before beginning to climb back, as Sinclair announced that
it would not show Stolen Honor, but would provide a balanced program with only
portions of the documentary and one that would include arguments on the other
side. On that day, the company's stock price had reached its lowest point in
three years. The day after the announced change in programming decision, the
share price bounced back to where it had been on October 15. There were
obviously multiple reasons for the stock price losses, and Sinclair stock had
been losing ground for many months prior to these events. Nonetheless, as
figure 7.1 demonstrates, the market responded quite sluggishly to the
announcements of regulatory and political action by the Democratic
establishment earlier in the week of October 12, by comparison to the
precipitous decline and dramatic bounce-back surrounding the market projections
that referred to advertising loss. While this does not prove that the
Weborganized, blog-driven and -facilitated boycott was the determining factor,
as compared to fears of formal regulatory action, the timing strongly suggests
that the efficacy of the boycott played a very significant role.

The first lesson of the Sinclair Stolen Honor story is about commercial mass
media themselves. The potential for the exercise of inordinate power by media
owners is not an imaginary concern. Here was a publicly traded firm whose
managers supported a political party and who planned to use their corporate
control over stations reaching one quarter of U.S. households, many in swing
states, to put a distinctly political message in front of this large audience.
[[pg 224]]

won_benkler_7_1.png 420x343 "Figure 7.1: Sinclair Stock, October 8?November 5,
2004" [link: <http://www.jus.uio.no/sisu>]

- We also learn, however, that in the absence of monopoly, such decisions do
not determine what everyone sees or hears, and that other mass-media outlets
will criticize each other under these conditions. This criticism alone,
however, cannot stop a determined media owner from trying to exert its
influence in the public sphere, and if placed as Sinclair was, in locations
with significant political weight, such intervention could have substantial
influence. Second, we learn that the new, network-based media can exert a
significant counterforce. They offer a completely new and much more widely open
intake basin for insight and commentary. The speed with which individuals were
able to set up sites to stake out a position, to collect and make available
information relevant to a specific matter of public concern, and to provide a
platform for others to exchange views about the appropriate political strategy
and tactics was completely different from anything that the economics and
organizational structure of mass media make feasible. The third lesson is about
the internal dynamics of the networked public sphere. Filtering and synthesis
occurred through discussion, trial, and error. Multiple proposals for action
surfaced, and the practice of linking allowed most anyone interested who
connected to one of the nodes in the network to follow [[pg 225]] quotations
and references to get a sense of the broad range of proposals. Different people
could coalesce on different modes of action--150,000 signed the petition on
stopsinclair.org, while others began to work on the boycott. Setting up the
mechanism was trivial, both technically and as a matter of cost--something a
single committed individual could choose to do. Pointing and adoption provided
the filtering, and feedback about the efficacy, again distributed through a
system of cross-references, allowed for testing and accreditation of this
course of action. High-visibility sites, like Talkingpointsmemo or the
dailyKos, offered transmissions hubs that disseminated information about the
various efforts and provided a platform for interest-group-wide tactical
discussions. It remains ambiguous to what extent these dispersed loci of public
debate still needed mass-media exposure to achieve broad political salience.
BoycottSBG.com received more than three hundred thousand unique visitors during
its first week of operations, and more than one million page views. It
successfully coordinated a campaign that resulted in real effects on
advertisers in a large number of geographically dispersed media markets. In
this case, at least, mainstream media reports on these efforts were few, and
the most immediate "transmission mechanism" of their effect was the analyst's
report from Lehman, not the media. It is harder to judge the extent to which
those few mainstream media reports that did appear featured in the decision of
the analyst to credit the success of the boycott efforts. The fact that
mainstream media outlets may have played a role in increasing the salience of
the boycott does not, however, take away from the basic role played by these
new mechanisms of bringing information and experience to bear on a broad public
conversation combined with a mechanism to organize political action across many
different locations and social contexts.

Our second story focuses not on the new reactive capacity of the networked
public sphere, but on its generative capacity. In this capacity, it begins to
outline the qualitative change in the role of individuals as potential
investigators and commentators, as active participants in defining the agenda
and debating action in the public sphere. This story is about Diebold Election
Systems (one of the leading manufacturers of electronic voting machines and a
subsidiary of one of the foremost ATM manufacturers in the world, with more
than $2 billion a year in revenue), and the way that public criticism of its
voting machines developed. It provides a series of observations about how the
networked information economy operates, and how it allows large numbers of
people to participate in a peer-production enterprise of [[pg 226]] news
gathering, analysis, and distribution, applied to a quite unsettling set of
claims. While the context of the story is a debate over electronic voting, that
is not what makes it pertinent to democracy. The debate could have centered on
any corporate and government practice that had highly unsettling implications,
was difficult to investigate and parse, and was largely ignored by mainstream
media. The point is that the networked public sphere did engage, and did
successfully turn something that was not a matter of serious public discussion
to a public discussion that led to public action.

Electronic voting machines were first used to a substantial degree in the
United States in the November 2002 elections. Prior to, and immediately
following that election, there was sparse mass-media coverage of electronic
voting machines. The emphasis was mostly on the newness, occasional slips, and
the availability of technical support staff to help at polls. An Atlanta
Journal-Constitution story, entitled "Georgia Puts Trust in Electronic Voting,
Critics Fret about Absence of Paper Trails,"[^65] is not atypical of coverage
at the time, which generally reported criticism by computer engineers, but
conveyed an overall soothing message about the efficacy of the machines and
about efforts by officials and companies to make sure that all would be well.
The New York Times report of the Georgia effort did not even mention the
critics.[^66] The Washington Post reported on the fears of failure with the
newness of the machines, but emphasized the extensive efforts that the
manufacturer, Diebold, was making to train election officials and to have
hundreds of technicians available to respond to failure.[^67] After the
election, the Atlanta Journal-Constitution reported that the touch-screen
machines were a hit, burying in the text any references to machines that
highlighted the wrong candidates or the long lines at the booths, while the
Washington Post highlighted long lines in one Maryland county, but smooth
operation elsewhere. Later, the Post reported a University of Maryland study
that surveyed users and stated that quite a few needed help from election
officials, compromising voter privacy.[^68] Given the centrality of voting
mechanisms for democracy, the deep concerns that voting irregularities
determined the 2000 presidential elections, and the sense that voting machines
would be a solution to the "hanging chads" problem (the imperfectly punctured
paper ballots that came to symbolize the Florida fiasco during that election),
mass-media reports were remarkably devoid of any serious inquiry into how
secure and accurate voting machines were, and included a high quotient of
soothing comments from election officials who bought the machines and
executives of the manufacturers who sold them. No mass-media outlet sought to
go [[pg 227]] behind the claims of the manufacturers about their machines, to
inquire into their security or the integrity of their tallying and transmission
mechanisms against vote tampering. No doubt doing so would have been difficult.
These systems were protected as trade secrets. State governments charged with
certifying the systems were bound to treat what access they had to the inner
workings as confidential. Analyzing these systems requires high degrees of
expertise in computer security. Getting around these barriers is difficult.
However, it turned out to be feasible for a collection of volunteers in various
settings and contexts on the Net.

In late January 2003, Bev Harris, an activist focused on electronic voting
machines, was doing research on Diebold, which has provided more than 75,000
voting machines in the United States and produced many of the machines used in
Brazil's purely electronic voting system. Harris had set up a whistle-blower
site as part of a Web site she ran at the time, blackboxvoting.com. Apparently
working from a tip, Harris found out about an openly available site where
Diebold stored more than forty thousand files about how its system works. These
included specifications for, and the actual code of, Diebold's machines and
vote-tallying system. In early February 2003, Harris published two initial
journalistic accounts on an online journal in New Zealand, Scoop.com--whose
business model includes providing an unedited platform for commentators who
wish to use it as a platform to publish their materials. She also set up a
space on her Web site for technically literate users to comment on the files
she had retrieved. In early July of that year, she published an analysis of the
results of the discussions on her site, which pointed out how access to the
Diebold open site could have been used to affect the 2002 election results in
Georgia (where there had been a tightly contested Senate race). In an editorial
attached to the publication, entitled "Bigger than Watergate," the editors of
Scoop claimed that what Harris had found was nothing short of a mechanism for
capturing the U.S. elections process. They then inserted a number of lines that
go to the very heart of how the networked information economy can use peer
production to play the role of watchdog:

  We can now reveal for the first time the location of a complete online copy
  of the original data set. As we anticipate attempts to prevent the
  distribution of this information we encourage supporters of democracy to make
  copies of these files and to make them available on websites and file sharing
  networks: http:// users.actrix.co.nz/dolly/. As many of the files are zip
  password protected you may need some assistance in opening them, we have
  found that the utility available at [[pg 228]] the following URL works well:
  <http://www.lostpassword.com>. Finally some of the zip files are partially
  damaged, but these too can be read by using the utility at:
  <http://www.zip-repair.com/>. At this stage in this inquiry we do not believe
  that we have come even remotely close to investigating all aspects of this
  data; i.e., there is no reason to believe that the security flaws discovered
  so far are the only ones. Therefore we expect many more discoveries to be
  made. We want the assistance of the online computing community in this
  enterprise and we encourage you to file your findings at the forum HERE
  [providing link to forum].

A number of characteristics of this call to arms would have been simply
infeasible in the mass-media environment. They represent a genuinely different
mind-set about how news and analysis are produced and how censorship and power
are circumvented. First, the ubiquity of storage and communications capacity
means that public discourse can rely on "see for yourself" rather than on
"trust me." The first move, then, is to make the raw materials available for
all to see. Second, the editors anticipated that the company would try to
suppress the information. Their response was not to use a counterweight of the
economic and public muscle of a big media corporation to protect use of the
materials. Instead, it was widespread distribution of information--about where
the files could be found, and about where tools to crack the passwords and
repair bad files could be found-- matched with a call for action: get these
files, copy them, and store them in many places so they cannot be squelched.
Third, the editors did not rely on large sums of money flowing from being a big
media organization to hire experts and interns to scour the files. Instead,
they posed a challenge to whoever was interested--there are more scoops to be
found, this is important for democracy, good hunting!! Finally, they offered a
platform for integration of the insights on their own forum. This short
paragraph outlines a mechanism for radically distributed storage, distribution,
analysis, and reporting on the Diebold files.

As the story unfolded over the next few months, this basic model of peer
production of investigation, reportage, analysis, and communication indeed
worked. It resulted in the decertification of some of Diebold's systems in
California, and contributed to a shift in the requirements of a number of
states, which now require voting machines to produce a paper trail for recount
purposes. The first analysis of the Diebold system based on the files Harris
originally found was performed by a group of computer scientists at the
Information Security Institute at Johns Hopkins University and released [[pg
229]] as a working paper in late July 2003. The Hopkins Report, or Rubin Report
as it was also named after one of its authors, Aviel Rubin, presented deep
criticism of the Diebold system and its vulnerabilities on many dimensions. The
academic credibility of its authors required a focused response from Diebold.
The company published a line-by-line response. Other computer scientists joined
in the debate. They showed the limitations and advantages of the Hopkins
Report, but also where the Diebold response was adequate and where it provided
implicit admission of the presence of a number of the vulnerabilities
identified in the report. The report and comments to it sparked two other major
reports, commissioned by Maryland in the fall of 2003 and later in January
2004, as part of that state's efforts to decide whether to adopt electronic
voting machines. Both studies found a wide range of flaws in the systems they
examined and required modifications (see figure 7.2).

Meanwhile, trouble was brewing elsewhere for Diebold. In early August 2003,
someone provided Wired magazine with a very large cache containing thousands of
internal e-mails of Diebold. Wired reported that the e-mails were obtained by a
hacker, emphasizing this as another example of the laxity of Diebold's
security. However, the magazine provided neither an analysis of the e-mails nor
access to them. Bev Harris, the activist who had originally found the Diebold
materials, on the other hand, received the same cache, and posted the e-mails
and memos on her site. Diebold's response was to threaten litigation. Claiming
copyright in the e-mails, the company demanded from Harris, her Internet
service provider, and a number of other sites where the materials had been
posted, that the e-mails be removed. The e-mails were removed from these sites,
but the strategy of widely distributed replication of data and its storage in
many different topological and organizationally diverse settings made Diebold's
efforts ultimately futile. The protagonists from this point on were college
students. First, two students at Swarthmore College in Pennsylvania, and
quickly students in a number of other universities in the United States, began
storing the e-mails and scouring them for evidence of impropriety. In October
2003, Diebold proceeded to write to the universities whose students were
hosting the materials. The company invoked provisions of the Digital Millennium
Copyright Act that require Web-hosting companies to remove infringing materials
when copyright owners notify them of the presence of these materials on their
sites. The universities obliged, and required the students to remove the
materials from their sites. The students, however, did not disappear quietly
into the [[pg 230]] night.

won_benkler_7_2.png 420x341 "Figure 7.2: Analysis of the Diebold Source Code
Materials" [link: <http://www.jus.uio.no/sisu>]

- On October 21, 2003, they launched a multipronged campaign of what they
described as "electronic civil disobedience." First, they kept moving the files
from one student to another's machine, encouraging students around the country
to resist the efforts to eliminate the material. Second, they injected the
materials into FreeNet, the anticensorship peer-to-peer publication network,
and into other peer-to-peer file-sharing systems, like eDonkey and BitTorrent.
Third, supported by the Electronic Frontier Foundation, one of the primary
civil-rights organizations concerned with Internet freedom, the students
brought suit against Diebold, seeking a judicial declaration that their posting
of the materials was privileged. They won both the insurgent campaign and the
formal one. As a practical matter, the materials remained publicly available
throughout this period. As a matter of law, the litigation went badly enough
for Diebold that the company issued a letter promising not to sue the students.
The court nonetheless awarded the students damages and attorneys' fees because
it found that Diebold had "knowingly and materially misrepresented" that the
publication of the e-mail archive was a copyright violation in its letters to
the Internet service providers.[^69] [[pg 231]]

Central from the perspective of understanding the dynamics of the networked
public sphere is not, however, the court case--it was resolved almost a year
later, after most of the important events had already unfolded--but the
efficacy of the students' continued persistent publication in the teeth of the
cease-and-desist letters and the willingness of the universities to comply. The
strategy of replicating the files everywhere made it impracticable to keep the
documents from the public eye. And the public eye, in turn, scrutinized. Among
the things that began to surface as users read the files were internal e-mails
recognizing problems with the voting system, with the security of the FTP site
from which Harris had originally obtained the specifications of the voting
systems, and e-mail that indicated that the machines implemented in California
had been "patched" or updated after their certification. That is, the machines
actually being deployed in California were at least somewhat different from the
machines that had been tested and certified by the state. This turned out to
have been a critical find.

California had a Voting Systems Panel within the office of the secretary of
state that reviewed and certified voting machines. On November 3, 2003, two
weeks after the students launched their electronic disobedience campaign, the
agenda of the panel's meeting was to include a discussion of proposed
modifications to one of Diebold's voting systems. Instead of discussing the
agenda item, however, one of the panel members made a motion to table the item
until the secretary of state had an opportunity to investigate, because "It has
come to our attention that some very disconcerting information regarding this
item [sic] and we are informed that this company, Diebold, may have installed
uncertified software in at least one county before it was certified."[^70] The
source of the information is left unclear in the minutes. A later report in
Wired cited an unnamed source in the secretary of state's office as saying that
somebody within the company had provided this information. The timing and
context, however, suggest that it was the revelation and discussion of the
e-mail memoranda online that played that role. Two of the members of the public
who spoke on the record mention information from within the company. One
specifically mentions the information gleaned from company e-mails. In the next
committee meeting, on December 16, 2003, one member of the public who was in
attendance specifically referred to the e-mails on the Internet, referencing in
particular a January e-mail about upgrades and changes to the certified
systems. By that December meeting, the independent investigation by the
secretary of state had found systematic discrepancies between the systems
actually installed [[pg 232]] and those tested and certified by the state. The
following few months saw more studies, answers, debates, and the eventual
decertification of many of the Diebold machines installed in California (see
figures 7.3a and 7.3b).

The structure of public inquiry, debate, and collective action exemplified by
this story is fundamentally different from the structure of public inquiry and
debate in the mass-media-dominated public sphere of the twentieth century. The
initial investigation and analysis was done by a committed activist, operating
on a low budget and with no financing from a media company. The output of this
initial inquiry was not a respectable analysis by a major player in the public
debate. It was access to raw materials and initial observations about them,
available to start a conversation. Analysis then emerged from a widely
distributed process undertaken by Internet users of many different types and
abilities. In this case, it included academics studying electronic voting
systems, activists, computer systems practitioners, and mobilized students.
When the pressure from a well-financed corporation mounted, it was not the
prestige and money of a Washington Post or a New York Times that protected the
integrity of the information and its availability for public scrutiny. It was
the radically distributed cooperative efforts of students and peer-to-peer
network users around the Internet. These efforts were, in turn, nested in other
communities of cooperative production--like the free software community that
developed some of the applications used to disseminate the e-mails after
Swarthmore removed them from the students' own site. There was no single
orchestrating power--neither party nor professional commercial media outlet.
There was instead a series of uncoordinated but mutually reinforcing actions by
individuals in different settings and contexts, operating under diverse
organizational restrictions and affordances, to expose, analyze, and distribute
criticism and evidence for it. The networked public sphere here does not rely
on advertising or capturing large audiences to focus its efforts. What became
salient for the public agenda and shaped public discussion was what intensely
engaged active participants, rather than what kept the moderate attention of
large groups of passive viewers. Instead of the lowest-common-denominator focus
typical of commercial mass media, each individual and group can--and, indeed,
most likely will--focus precisely on what is most intensely interesting to its
participants. Instead of iconic representation built on the scarcity of time
slots and space on the air or on the page, we see the emergence of a "see for
yourself" culture. Access to underlying documents and statements, and to [[pg
233]] the direct expression of the opinions of others, becomes a central part
of the medium.

won_benkler_7_3a.png 420x340 "Figure 7.3a: Diebold Internal E-mails Discovery
and Distribution" [link: <http://www.jus.uio.no/sisu>]

CRITIQUES OF THE CLAIMS THAT THE INTERNET HAS DEMOCRATIZING EFFECTS
...................................................................

It is common today to think of the 1990s, out of which came the Supreme Court's
opinion in /Reno v. ACLU/, as a time of naïve optimism about the Internet,
expressing in political optimism the same enthusiasm that drove the stock
market bubble, with the same degree of justifiability. An ideal liberal public
sphere did not, in fact, burst into being from the Internet, fully grown like
Athena from the forehead of Zeus. The detailed criticisms of the early claims
about the democratizing effects of the Internet can be characterized as
variants of five basic claims:

won_benkler_7_3a.png 420x340 "Figure 7.3b: Internal E-mails Translated to
Political and Judicial Action" [link: <http://www.jus.uio.no/sisu>]

1. /Information overload./ A basic problem created when everyone can speak is
that there will be too many statements, or too much information. Too [[pg 234]]
many observations and too many points of view make the problem of sifting
through them extremely difficult, leading to an unmanageable din. This overall
concern, a variant of the Babel objection, underlies three more specific
arguments: that money will end up dominating anyway, that there will be
fragmentation of discourse, and that fragmentation of discourse will lead to
its polarization.

/Money will end up dominating anyway./ A point originally raised by Eli Noam is
that in this explosively large universe, getting attention will be as difficult
as getting your initial message out in the mass-media context, if not more so.
The same means that dominated the capacity to speak in the mass-media
environment--money--will dominate the capacity to be heard on the Internet,
even if it no longer controls the capacity to speak.

/Fragmentation of attention and discourse./ A point raised most explicitly by
Cass Sunstein in Republic.com is that the ubiquity of information and the
absence of the mass media as condensation points will impoverish public
discourse by fragmenting it. There will be no public sphere. [[pg 235]]
Individuals will view the world through millions of personally customized
windows that will offer no common ground for political discourse or action,
except among groups of highly similar individuals who customize their windows
to see similar things.

/Polarization./ A descriptively related but analytically distinct critique of
Sunstein's was that the fragmentation would lead to polarization. When
information and opinions are shared only within groups of likeminded
participants, he argued, they tend to reinforce each other's views and beliefs
without engaging with alternative views or seeing the concerns and critiques of
others. This makes each view more extreme in its own direction and increases
the distance between positions taken by opposing camps.

2. /Centralization of the Internet./ A second-generation criticism of the
democratizing effects of the Internet is that it turns out, in fact, not to be
as egalitarian or distributed as the 1990s conception had suggested. First,
there is concentration in the pipelines and basic tools of communications.
Second, and more intractable to policy, even in an open network, a high degree
of attention is concentrated on a few top sites--a tiny number of sites are
read by the vast majority of readers, while many sites are never visited by
anyone. In this context, the Internet is replicating the massmedia model,
perhaps adding a few channels, but not genuinely changing anything structural.

Note that the concern with information overload is in direct tension with the
second-generation concerns. To the extent that the concerns about Internet
concentration are correct, they suggest that the information overload is not a
deep problem. Sadly, from the perspective of democracy, it turns out that
according to the concentration concern, there are few speakers to which most
people listen, just as in the mass-media environment. While this means that the
supposed benefits of the networked public sphere are illusory, it also means
that the information overload concerns about what happens when there is no
central set of speakers to whom most people listen are solved in much the same
way that the mass-media model deals with the factual diversity of information,
opinion, and observations in large societies--by consigning them to public
oblivion. The response to both sets of concerns will therefore require combined
consideration of a series of questions: To what extent are the claims of
concentration correct? How do they solve the information overload [[pg 236]]
problem? To what extent does the observed concentration replicate the
mass-media model?

3. /Centrality of commercial mass media to the Fourth Estate function./ The
importance of the press to the political process is nothing new. It earned the
press the nickname "the Fourth Estate" (a reference to the three estates that
made up the prerevolutionary French Estates-General, the clergy, nobility, and
townsmen), which has been in use for at least a hundred and fifty years. In
American free speech theory, the press is often described as fulfilling "the
watchdog function," deriving from the notion that the public representatives
must be watched over to assure they do the public's business faithfully. In the
context of the Internet, the concern, most clearly articulated by Neil Netanel,
has been that in the modern complex societies in which we live, commercial mass
media are critical for preserving the watchdog function of the media. Big,
sophisticated, well-funded government and corporate market actors have enormous
resources at their disposal to act as they please and to avoid scrutiny and
democratic control. Only similarly big, powerful, independently funded media
organizations, whose basic market roles are to observe and criticize other
large organizations, can match these established elite organizational actors.
Individuals and collections of volunteers talking to each other may be nice,
but they cannot seriously replace well-funded, economically and politically
powerful media.

4. /Authoritarian countries can use filtering and monitoring to squelch
Internet use./ A distinct set of claims and their critiques have to do with the
effects of the Internet on authoritarian countries. The critique is leveled at
a basic belief supposedly, and perhaps actually, held by some
cyberlibertarians, that with enough access to Internet tools freedom will burst
out everywhere. The argument is that China, more than any other country, shows
that it is possible to allow a population access to the Internet-- it is now
home to the second-largest national population of Internet users--and still
control that use quite substantially.

5. /Digital divide./ While the Internet may increase the circle of participants
in the public sphere, access to its tools is skewed in favor of those who
already are well-off in society--in terms of wealth, race, and skills. I do not
respond to this critique in this chapter. First, in the United States, this is
less stark today than it was in the late 1990s. Computers and Internet
connections are becoming cheaper and more widely available in public libraries
and schools. As they become more central to life, they [[pg 237]] seem to be
reaching higher penetration rates, and growth rates among underrepresented
groups are higher than the growth rate among the highly represented groups. The
digital divide with regard to basic access within advanced economies is
important as long as it persists, but seems to be a transitional problem.
Moreover, it is important to recall that the democratizing effects of the
Internet must be compared to democracy in the context of mass media, not in the
context of an idealized utopia. Computer literacy and skills, while far from
universal, are much more widely distributed than the skills and instruments of
mass-media production. Second, I devote chapter 9 to the question of how and
why the emergence specifically of nonmarket production provides new avenues for
substantial improvements in equality of access to various desiderata that the
market distributes unevenly, both within advanced economies and globally, where
the maldistribution is much more acute. While the digital divide critique can
therefore temper our enthusiasm for how radical the change represented by the
networked information economy may be in terms of democracy, the networked
information economy is itself an avenue for alleviating maldistribution.

The remainder of this chapter is devoted to responding to these critiques,
providing a defense of the claim that the Internet can contribute to a more
attractive liberal public sphere. As we work through these objections, we can
develop a better understanding of how the networked information economy
responds to or overcomes the particular systematic failures of mass media as
platforms for the public sphere. Throughout this analysis, it is comparison of
the attractiveness of the networked public sphere to that baseline--the
mass-media-dominated public sphere--not comparison to a nonexistent ideal
public sphere or to the utopia of "everyone a pamphleteer," that should matter
most to our assessment of its democratic promise.

IS THE INTERNET TOO CHAOTIC, TOO CONCENTRATED, OR NEITHER?
..........................................................

The first-generation critique of the claims that the Internet democratizes
focused heavily on three variants of the information overload or Babel
objection. The basic descriptive proposition that animated the Supreme Court in
/Reno v. ACLU/ was taken as more or less descriptively accurate: Everyone would
be equally able to speak on the Internet. However, this basic observation [[pg
238]] was then followed by a descriptive or normative explanation of why this
development was a threat to democracy, or at least not much of a boon. The
basic problem that is diagnosed by this line of critique is the problem of
attention. When everyone can speak, the central point of failure becomes the
capacity to be heard--who listens to whom, and how that question is decided.
Speaking in a medium that no one will actually hear with any reasonable
likelihood may be psychologically satisfying, but it is not a move in a
political conversation. Noam's prediction was, therefore, that there would be a
reconcentration of attention: money would reemerge in this environment as a
major determinant of the capacity to be heard, certainly no less, and perhaps
even more so, than it was in the mass-media environment.[^71] Sunstein's theory
was different. He accepted Nicholas Negroponte's prediction that people would
be reading "The Daily Me," that is, that each of us would create highly
customized windows on the information environment that would be narrowly
tailored to our unique combination of interests. From this assumption about how
people would be informed, he spun out two distinct but related critiques. The
first was that discourse would be fragmented. With no six o'clock news to tell
us what is on the public agenda, there would be no public agenda, just a
fragmented multiplicity of private agendas that never coalesce into a platform
for political discussion. The second was that, in a fragmented discourse,
individuals would cluster into groups of self-reinforcing, self-referential
discussion groups. These types of groups, he argued from social scientific
evidence, tend to render their participants' views more extreme and less
amenable to the conversation across political divides necessary to achieve
reasoned democratic decisions.

Extensive empirical and theoretical studies of actual use patterns of the
Internet over the past five to eight years has given rise to a
second-generation critique of the claim that the Internet democratizes.
According to this critique, attention is much more concentrated on the Internet
than we thought a few years ago: a tiny number of sites are highly linked, the
vast majority of "speakers" are not heard, and the democratic potential of the
Internet is lost. If correct, these claims suggest that Internet use patterns
solve the problem of discourse fragmentation that Sunstein was worried about.
Rather than each user reading a customized and completely different
"newspaper," the vast majority of users turn out to see the same sites. In a
network with a small number of highly visible sites that practically everyone
reads, the discourse fragmentation problem is resolved. Because they are seen
by most people, the polarization problem too is solved--the highly visible
sites are [[pg 239]] not small-group interactions with homogeneous viewpoints.
While resolving Sunstein's concerns, this pattern is certainly consistent with
Noam's prediction that money would have to be paid to reach visibility,
effectively replicating the mass-media model. While centralization would
resolve the Babel objection, it would do so only at the expense of losing much
of the democratic promise of the Net.

Therefore, we now turn to the question: Is the Internet in fact too chaotic or
too concentrated to yield a more attractive democratic discourse than the mass
media did? I suggest that neither is the case. At the risk of appearing a
chimera of Goldilocks and Pangloss, I argue instead that the observed use of
the network exhibits an order that is not too concentrated and not too chaotic,
but rather, if not "just right," at least structures a networked public sphere
more attractive than the mass-media-dominated public sphere.

There are two very distinct types of claims about Internet centralization. The
first, and earlier, has the familiar ring of media concentration. It is the
simpler of the two, and is tractable to policy. The second, concerned with the
emergent patterns of attention and linking on an otherwise open network, is
more difficult to explain and intractable to policy. I suggest, however, that
it actually stabilizes and structures democratic discourse, providing a better
answer to the fears of information overload than either the mass media or any
efforts to regulate attention to matters of public concern.

The media-concentration type argument has been central to arguments about the
necessity of open access to broadband platforms, made most forcefully over the
past few years by Lawrence Lessig. The argument is that the basic
instrumentalities of Internet communications are subject to concentrated
markets. This market concentration in basic access becomes a potential point of
concentration of the power to influence the discourse made possible by access.
Eli Noam's recent work provides the most comprehensive study currently
available of the degree of market concentration in media industries. It offers
a bleak picture.[^72] Noam looked at markets in basic infrastructure components
of the Internet: Internet backbones, Internet service providers (ISPs),
broadband providers, portals, search engines, browser software, media player
software, and Internet telephony. Aggregating across all these sectors, he
found that the Internet sector defined in terms of these components was,
throughout most of the period from 1984 to 2002, concentrated according to
traditional antitrust measures. Between 1992 and 1998, however, this sector was
"highly concentrated" by the Justice Department's measure of market
concentration for antitrust purposes. Moreover, the power [[pg 240]] of the top
ten firms in each of these markets, and in aggregate for firms that had large
market segments in a number of these markets, shows that an ever-smaller number
of firms were capturing about 25 percent of the revenues in the Internet
sector. A cruder, but consistent finding is the FCC's, showing that 96 percent
of homes and small offices get their broadband access either from their
incumbent cable operator or their incumbent local telephone carrier.[^73] It is
important to recognize that these findings are suggesting potential points of
failure for the networked information economy. They are not a critique of the
democratic potential of the networked public sphere, but rather show us how we
could fail to develop it by following the wrong policies.

The risk of concentration in broadband access services is that a small number
of firms, sufficiently small to have economic power in the antitrust sense,
will control the markets for the basic instrumentalities of Internet
communications. Recall, however, that the low cost of computers and the
open-ended architecture of the Internet protocol itself are the core enabling
facts that have allowed us to transition from the mass-media model to the
networked information model. As long as these basic instrumentalities are open
and neutral as among uses, and are relatively cheap, the basic economics of
nonmarket production described in part I should not change. Under competitive
conditions, as technology makes computation and communications cheaper, a
well-functioning market should ensure that outcome. Under oligopolistic
conditions, however, there is a threat that the network will become too
expensive to be neutral as among market and nonmarket production. If basic
upstream network connections, server space, and up-to-date reading and writing
utilities become so expensive that one needs to adopt a commercial model to
sustain them, then the basic economic characteristic that typifies the
networked information economy--the relatively large role of nonproprietary,
nonmarket production--will have been reversed. However, the risk is not focused
solely or even primarily on explicit pricing. One of the primary remaining
scarce resources in the networked environment is user time and attention. As
chapter 5 explained, owners of communications facilities can extract value from
their users in ways that are more subtle than increasing price. In particular,
they can make some sites and statements easier to reach and see--more
prominently displayed on the screen, faster to load--and sell that relative
ease to those who are willing to pay.[^74] In that environment, nonmarket sites
are systematically disadvantaged irrespective of the quality of their content.
[[pg 241]]

The critique of concentration in this form therefore does not undermine the
claim that the networked information economy, if permitted to flourish, will
improve the democratic public sphere. It underscores the threat of excessive
monopoly in infrastructure to the sustainability of the networked public
sphere. The combination of observations regarding market concentration and an
understanding of the importance of a networked public sphere to democratic
societies suggests that a policy intervention is possible and desirable.
Chapter 11 explains why the relevant intervention is to permit substantial
segments of the core common infrastructure--the basic physical transport layer
of wireless or fiber and the software and standards that run communications--to
be produced and provisioned by users and managed as a commons.

ON POWER LAW DISTRIBUTIONS, NETWORK TOPOLOGY, AND BEING HEARD
.............................................................

A much more intractable challenge to the claim that the networked information
economy will democratize the public sphere emerges from observations of a set
or phenomena that characterize the Internet, the Web, the blogosphere, and,
indeed, most growing networks. In order to extract information out of the
universe of statements and communications made possible by the Internet, users
are freely adopting practices that lead to the emergence of a new hierarchy.
Rather than succumb to the "information overload" problem, users are solving it
by congregating in a small number of sites. This conclusion is based on a new
but growing literature on the likelihood that a Web page will be linked to by
others. The distribution of that probability turns out to be highly skew. That
is, there is a tiny probability that any given Web site will be linked to by a
huge number of people, and a very large probability that for a given Web site
only one other site, or even no site, will link to it. This fact is true of
large numbers of very different networks described in physics, biology, and
social science, as well as in communications networks. If true in this pure
form about Web usage, this phenomenon presents a serious theoretical and
empirical challenge to the claim that Internet communications of the sorts we
have seen here meaningfully decentralize democratic discourse. It is not a
problem that is tractable to policy. We cannot as a practical matter force
people to read different things than what they choose to read; nor should we
wish to. If users avoid information overload by focusing on a small subset of
sites in an otherwise [[pg 242]] open network that allows them to read more or
less whatever they want and whatever anyone has written, policy interventions
aimed to force a different pattern would be hard to justify from the
perspective of liberal democratic theory.

The sustained study of the distribution of links on the Internet and the Web is
relatively new--only a few years old. There is significant theoretical work in
a field of mathematics called graph theory, or network topology, on power law
distributions in networks, on skew distributions that are not pure power law,
and on the mathematically related small-worlds phenomenon in networks. The
basic intuition is that, if indeed a tiny minority of sites gets a large number
of links, and the vast majority gets few or no links, it will be very difficult
to be seen unless you are on the highly visible site. Attention patterns make
the open network replicate mass media. While explaining this literature over
the next few pages, I show that what is in fact emerging is very different
from, and more attractive than, the mass-media-dominated public sphere.

While the Internet, the Web, and the blogosphere are indeed exhibiting much
greater order than the freewheeling, "everyone a pamphleteer" image would
suggest, this structure does not replicate a mass-media model. We are seeing a
newly shaped information environment, where indeed few are read by many, but
clusters of moderately read sites provide platforms for vastly greater numbers
of speakers than were heard in the mass-media environment. Filtering,
accreditation, synthesis, and salience are created through a system of peer
review by information affinity groups, topical or interest based. These groups
filter the observations and opinions of an enormous range of people, and
transmit those that pass local peer review to broader groups and ultimately to
the polity more broadly, without recourse to market-based points of control
over the information flow. Intense interest and engagement by small groups that
share common concerns, rather than lowest-commondenominator interest in wide
groups that are largely alienated from each other, is what draws attention to
statements and makes them more visible. This makes the emerging networked
public sphere more responsive to intensely held concerns of a much wider swath
of the population than the mass media were capable of seeing, and creates a
communications process that is more resistant to corruption by money.

In what way, first, is attention concentrated on the Net? We are used to seeing
probability distributions that describe social phenomena following a Gaussian
distribution: where the mean and the median are the same and the [[pg 243]]
probabilities fall off symmetrically as we describe events that are farther
from the median. This is the famous Bell Curve. Some phenomena, however,
observed initially in Pareto's work on income distribution and Zipf 's on the
probability of the use of English words in text and in city populations,
exhibit completely different probability distributions. These distributions
have very long "tails"--that is, they are characterized by a very small number
of very high-yield events (like the number of words that have an enormously
high probability of appearing in a randomly chosen sentence, like "the" or
"to") and a very large number of events that have a very low probability of
appearing (like the probability that the word "probability" or "blogosphere"
will appear in a randomly chosen sentence). To grasp intuitively how
unintuitive such distributions are to us, we could think of radio humorist
Garrison Keillor's description of the fictitious Lake Wobegon, where "all the
children are above average." That statement is amusing because we assume
intelligence follows a normal distribution. If intelligence were distributed
according to a power law, most children there would actually be below
average--the median is well below the mean in such distributions (see figure
7.4). Later work by Herbert Simon in the 1950s, and by Derek de Solla Price in
the 1960s, on cumulative advantage in scientific citations[^75] presaged an
emergence at the end of the 1990s of intense interest in power law
characterizations of degree distributions, or the number of connections any
point in a network has to other points, in many kinds of networks--from
networks of neurons and axons, to social networks and communications and
information networks.

won_benkler_7_4.png 420x378 "Figure 7.4: Illustration of How Normal
Distribution and Power Law Distribution Would Differ in Describing How Many Web
Sites Have Few or Many Links Pointing at Them" [link:
<http://www.jus.uio.no/sisu>]

The Internet and the World Wide Web offered a testable setting, where
large-scale investigation could be done automatically by studying link
structure (who is linked-in to and by whom, who links out and to whom, how
these are related, and so on), and where the practical applications of better
understanding were easily articulated--such as the design of better search
engines. In 1999, Albert-László Barabasi and Reka Albert published a paper in
/Science/ showing that a variety of networked phenomena have a predictable
topology: The distribution of links into and out of nodes on the network
follows a power law. There is a very low probability that any vertex, or node,
in the network will be very highly connected to many others, and a very large
probability that a very large number of nodes will be connected only very
loosely, or perhaps not at all. Intuitively, a lot of Web sites link to
information that is located on Yahoo!, while very few link to any randomly
selected individual's Web site. Barabasi and Albert hypothesized a mechanism
[[pg 244]] for this distribution to evolve, which they called "preferential
attachment." That is, new nodes prefer to attach to already well-attached
nodes. Any network that grows through the addition of new nodes, and in which
nodes preferentially attach to nodes that are already well attached, will
eventually exhibit this distribution.[^76] In other words, the rich get richer.
At the same time, two computer scientists, Lada Adamic and Bernardo Huberman,
published a study in Nature that identified the presence of power law
distributions in the number of Web pages in a given site. They hypothesized not
that new nodes preferentially attach to old ones, but that each site has an
intrinsically different growth rate, and that new sites are formed at an
exponential rate.[^77] The intrinsically different growth rates could be
interpreted as quality, interest, or perhaps investment of money in site
development and marketing. They showed that on these assumptions, a power law
distribution would emerge. Since the publication of these articles we have seen
an explosion of theoretical and empirical literature on graph theory, or the
structure and growth of networks, and particularly on link structure in the
World Wide Web. It has consistently shown that the number of links into and out
of Web sites follows power laws and that the exponent (the exponential [[pg
245]] factor that determines that the drop-off between the most linked-to site
and the second most linked-to site, and the third, and so on, will be so
dramatically rapid, and how rapid it is) for inlinks is roughly 2.1 and for
outlinks 2.7.

If one assumes that most people read things by either following links, or by
using a search engine, like Google, that heavily relies on counting inlinks to
rank its results, then it is likely that the number of visitors to a Web page,
and more recently, the number of readers of blogs, will follow a similarly
highly skew distribution. The implication for democracy that comes most
immediately to mind is dismal. While, as the Supreme Court noted with
enthusiasm, on the Internet everyone can be a pamphleteer or have their own
soapbox, the Internet does not, in fact, allow individuals to be heard in ways
that are substantially more effective than standing on a soapbox in a city
square. Many Web pages and blogs will simply go unread, and will not contribute
to a more engaged polity. This argument was most clearly made in Barabasi's
popularization of his field, Linked: "The most intriguing result of our
Web-mapping project was the complete absence of democracy, fairness, and
egalitarian values on the Web. We learned that the topology of the Web prevents
us from seeing anything but a mere handful of the billion documents out
there."[^78]

The stories offered in this chapter and throughout this book present a puzzle
for this interpretation of the power law distribution of links in the network
as re-creating a concentrated medium. The success of Nick Davis's site,
BoycottSBG, would be a genuine fluke. The probability that such a site could be
established on a Monday, and by Friday of the same week would have had three
hundred thousand unique visitors and would have orchestrated a successful
campaign, is so small as to be negligible. The probability that a completely
different site, StopSinclair.org, of equally network-obscure origins, would be
established on the very same day and also successfully catch the attention of
enough readers to collect 150,000 signatures on a petition to protest
Sinclair's broadcast, rather than wallowing undetected in the mass of
self-published angry commentary, is practically insignificant. And yet,
intuitively, it seems unsurprising that a large population of individuals who
are politically mobilized on the same side of the political map and share a
political goal in the public sphere--using a network that makes it trivially
simple to set up new points of information and coordination, tell each other
about them, and reach and use them from anywhere--would, in fact, inform each
other and gather to participate in a political demonstration. We saw [[pg 246]]
that the boycott technique that Davis had designed his Web site to facilitate
was discussed on TalkingPoints--a site near the top of the power law
distribution of political blogs--but that it was a proposal by an anonymous
individual who claimed to know what makes local affiliates tick, not of
TalkingPoints author Josh Marshall. By midweek, after initially stoking the
fires of support for Davis's boycott, Marshall had stepped back, and Davis's
site became the clearing point for reports, tactical conversations, and
mobilization. Davis not only was visible, but rather than being drowned out by
the high-powered transmitter, TalkingPoints, his relationship with the
high-visibility site was part of his success. This story alone cannot, of
course, "refute" the power law distribution of network links, nor is it offered
as a refutation. It does, however, provide a context for looking more closely
at the emerging understanding of the topology of the Web, and how it relates to
the fears of concentration of the Internet, and the problems of information
overload, discourse fragmentation, and the degree to which money will come to
dominate such an unstructured and wide-open environment. It suggests a more
complex story than simply "the rich get richer" and "you might speak, but no
one will hear you." In this case, the topology of the network allowed rapid
emergence of a position, its filtering and synthesis, and its rise to salience.
Network topology helped facilitate all these components of the public sphere,
rather than undermined them. We can go back to the mathematical and computer
science literature to begin to see why.

Within two months of the publication of Barabasi and Albert's article, Adamic
and Huberman had published a letter arguing that, if Barabasi and Albert were
right about preferential attachment, then older sites should systematically be
among those that are at the high end of the distribution, while new ones will
wallow in obscurity. The older sites are already attached, so newer sites would
preferentially attach to the older sites. This, in turn, would make them even
more attractive when a new crop of Web sites emerged and had to decide which
sites to link to. In fact, however, Adamic and Huberman showed that there is no
such empirical correlation among Web sites. They argued that their
mechanism--that nodes have intrinsic growth rates that are different--better
describes the data. In their response, Barabasi and Albert showed that on their
data set, the older nodes are actually more connected in a way that follows a
power law, but only on average--that is to say, the average number of
connections of a class of older nodes related to the average number of links to
a younger class of nodes follows a power law. This argued that their basic
model was sound, but [[pg 247]] required that they modify their equations to
include something similar to what Huberman and Adamic had proposed--an
intrinsic growth factor for each node, as well as the preferential connection
of new nodes to established nodes.[^79] This modification is important because
it means that not every new node is doomed to be unread relative to the old
ones, only that on average they are much less likely to be read. It makes room
for rapidly growing new nodes, but does not theorize what might determine the
rate of growth. It is possible, for example, that money could determine growth
rates: In order to be seen, new sites or statements would have to spend money
to gain visibility and salience. As the BoycottSBG and Diebold stories suggest,
however, as does the Lott story described later in this chapter, there are
other ways of achieving immediate salience. In the case of BoycottSBG, it was
providing a solution that resonated with the political beliefs of many people
and was useful to them for their expression and mobilization. Moreover, the
continued presence of preferential attachment suggests that noncommercial Web
sites that are already highly connected because of the time they were
introduced (like the Electronic Frontier Foundation), because of their internal
attractiveness to large communities (like Slashdot), or because of their
salience to the immediate interests of users (like BoycottSBG), will have
persistent visibility even in the face of large infusions of money by
commercial sites. Developments in network topology theory and its relationship
to the structure of the empirically mapped real Internet offer a map of the
networked information environment that is indeed quite different from the
naïve model of "everyone a pamphleteer." To the limited extent that these
findings have been interpreted for political meaning, they have been seen as a
disappointment--the real world, as it turns out, does not measure up to
anything like that utopia. However, that is the wrong baseline. There never has
been a complex, large modern democracy in which everyone could speak and be
heard by everyone else. The correct baseline is the one-way structure of the
commercial mass media. The normatively relevant descriptive questions are
whether the networked public sphere provides broader intake, participatory
filtering, and relatively incorruptible platforms for creating public salience.
I suggest that it does. Four characteristics of network topology structure the
Web and the blogosphere in an ordered, but nonetheless meaningfully
participatory form. First, at a microlevel, sites cluster--in particular,
topically and interest-related sites link much more heavily to each other than
to other sites. Second, at a macrolevel, the Web and the blogosphere have [[pg
248]] giant, strongly connected cores--"areas" where 20-30 percent of all sites
are highly and redundantly interlinked; that is, tens or hundreds of millions
of sites, rather than ten, fifty, or even five hundred television stations.
That pattern repeats itself in smaller subclusters as well. Third, as the
clusters get small enough, the obscurity of sites participating in the cluster
diminishes, while the visibility of the superstars remains high, forming a
filtering and transmission backbone for universal intake and local filtering.
Fourth and finally, the Web exhibits "small-world" phenomena, making most Web
sites reachable through shallow paths from most other Web sites. I will explain
each of these below, as well as how they interact to form a reasonably
attractive image of the networked public sphere.

First, links are not smoothly distributed throughout the network. Sites cluster
into densely linked "regions" or communities of interest. Computer scientists
have looked at clustering from the perspective of what topical or other
correlated characteristics describe these relatively high-density
interconnected regions of nodes. What they found was perhaps entirely
predictable from an intuitive perspective of the network users, but important
as we try to understand the structure of information flow on the Web. Web sites
cluster into topical and social/organizational clusters. Early work done in the
IBM Almaden Research Center on how link structure could be used as a search
technique showed that by mapping densely interlinked sites without looking at
content, one could find communities of interest that identify very fine-grained
topical connections, such as Australian fire brigades or Turkish students in
the United States.[^80] A later study out of the NEC Research Institute more
formally defined the interlinking that would identify a "community" as one in
which the nodes were more densely connected to each other than they were to
nodes outside the cluster by some amount. The study also showed that topically
connected sites meet this definition. For instance, sites related to molecular
biology clustered with each other--in the sense of being more interlinked with
each other than with off-topic sites--as did sites about physics and black
holes.[^81] Lada Adamic and Natalie Glance recently showed that liberal
political blogs and conservative political blogs densely interlink with each
other, mostly pointing within each political leaning but with about 15 percent
of links posted by the most visible sites also linking across the political
divide.[^82] Physicists analyze clustering as the property of transitivity in
networks: the increased probability that if node A is connected to node B, and
node B is connected to node C, that node A also will be connected to node C,
forming a triangle. Newman has shown that [[pg 249]] the clustering coefficient
of a network that exhibits power law distribution of connections or
degrees--that is, its tendency to cluster--is related to the exponent of the
distribution. At low exponents, below 2.333, the clustering coefficient becomes
high. This explains analytically the empirically observed high level of
clustering on the Web, whose exponent for inlinks has been empirically shown to
be 2.1.[^83]

Second, at a macrolevel and in smaller subclusters, the power law distribution
does not resolve into everyone being connected in a mass-media model
relationship to a small number of major "backbone" sites. As early as 1999,
Broder and others showed that a very large number of sites occupy what has been
called a giant, strongly connected core.[^84] That is, nodes within this core
are heavily linked and interlinked, with multiple redundant paths among them.
Empirically, as of 2001, this structure was comprised of about 28 percent of
nodes. At the same time, about 22 percent of nodes had links into the core, but
were not linked to from it--these may have been new sites, or relatively
lower-interest sites. The same proportion of sites was linked-to from the core,
but did not link back to it--these might have been ultimate depositories of
documents, or internal organizational sites. Finally, roughly the same
proportion of sites occupied "tendrils" or "tubes" that cannot reach, or be
reached from, the core. Tendrils can be reached from the group of sites that
link into the strongly connected core or can reach into the group that can be
connected to from the core. Tubes connect the inlinking sites to the outlinked
sites without going through the core. About 10 percent of sites are entirely
isolated. This structure has been called a "bow tie"--with a large core and
equally sized in- and outflows to and from that core (see figure 7.5).

won_benkler_7_5.png 420x345 "Figure 7.5: Bow Tie Structure of the Web" [link:
<http://www.jus.uio.no/sisu>]

One way of interpreting this structure as counterdemocratic is to say: This
means that half of all Web sites are not reachable from the other half--the
"IN," "tendrils," and disconnected portions cannot be reached from any of the
sites in SCC and OUT. This is indeed disappointing from the "everyone a
pamphleteer" perspective. On the other hand, one could say that half of all Web
pages, the SCC and OUT components, are reachable from IN and SCC. That is,
hundreds of millions of pages are reachable from hundreds of millions of
potential entry points. This represents a very different intake function and
freedom to speak in a way that is potentially accessible to others than a
five-hundred-channel, mass-media model. More significant yet, Dill and others
showed that the bow tie structure appears not only at the level of the Web as a
whole, but repeats itself within clusters. That is, the Web [[pg 250]] appears
to show characteristics of self-similarity, up to a point--links within
clusters also follow a power law distribution and cluster, and have a bow tie
structure of similar proportions to that of the overall Web. Tying the two
points about clustering and the presence of a strongly connected core, Dill and
his coauthors showed that what they called "thematically unified clusters,"
such as geographically or content-related groupings of Web sites, themselves
exhibit these strongly connected cores that provided a thematically defined
navigational backbone to the Web. It is not that one or two major sites were
connected to by all thematically related sites; rather, as at the network
level, on the order of 25-30 percent were highly interlinked, and another 25
percent were reachable from within the strongly connected core.[^85] Moreover,
when the data was pared down to treat only the home page, rather than each Web
page within a single site as a distinct "node" (that is, everything that came
under www.foo.com was treated as one node, as opposed to the usual method where
www.foo.com, www.foo.com/nonsuch, and www.foo.com/somethingelse are each
treated as a separate node), fully 82 percent of the nodes were in the strongly
connected core, and an additional 13 percent were reachable from the SCC as the
OUT group.

Third, another finding of Web topology and critical adjustment to the [[pg
251]] basic Barabasi and Albert model is that when the topically or
organizationally related clusters become small enough--on the order of hundreds
or even low thousands of Web pages--they no longer follow a pure power law
distribution. Instead, they follow a distribution that still has a very long
tail-- these smaller clusters still have a few genuine "superstars"--but the
body of the distribution is substantially more moderate: beyond the few
superstars, the shape of the link distribution looks a little more like a
normal distribution. Instead of continuing to drop off exponentially, many
sites exhibit a moderate degree of connectivity. Figure 7.6 illustrates how a
hypothetical distribution of this sort would differ both from the normal and
power law distributions illustrated in figure 7.4. David Pennock and others, in
their paper describing these empirical findings, hypothesized a uniform
component added to the purely exponential original Barabasi and Albert model.
This uniform component could be random (as they modeled it), but might also
stand for quality of materials, or level of interest in the site by
participants in the smaller cluster. At large numbers of nodes, the exponent
dominates the uniform component, accounting for the pure power law distribution
when looking at the Web as a whole, or even at broadly defined topics. In
smaller clusters of sites, however, the uniform component begins to exert a
stronger pull on the distribution. The exponent keeps the long tail intact, but
the uniform component accounts for a much more moderate body. Many sites will
have dozens, or even hundreds of links. The Pennock paper looked at sites whose
number was reduced by looking only at sites of certain
organizations--universities or public companies. Chakrabarti and others later
confirmed this finding for topical clusters as well. That is, when they looked
at small clusters of topically related sites, the distribution of links still
has a long tail for a small number of highly connected sites in every topic,
but the body of the distribution diverges from a power law distribution, and
represents a substantial proportion of sites that are moderately linked.[^86]
Even more specifically, Daniel Drezner and Henry Farrell reported that the
Pennock modification better describes distribution of links specifically to and
among political blogs.[^87]

won_benkler_7_6.png 420x357 "Figure 7.6: Illustration of a Skew Distribution
That Does Not Follow a Power Law" [link: <http://www.jus.uio.no/sisu>]

These findings are critical to the interpretation of the distribution of links
as it relates to human attention and communication. There is a big difference
between a situation where no one is looking at any of the sites on the low end
of the distribution, because everyone is looking only at the superstars, and a
situation where dozens or hundreds of sites at the low end are looking at each
other, as well as at the superstars. The former leaves all but the very [[pg
252]] few languishing in obscurity, with no one to look at them. The latter, as
explained in more detail below, offers a mechanism for topically related and
interest-based clusters to form a peer-reviewed system of filtering,
accreditation, and salience generation. It gives the long tail on the low end
of the distribution heft (and quite a bit of wag).

The fourth and last piece of mapping the network as a platform for the public
sphere is called the "small-worlds effect." Based on Stanley Milgram's
sociological experiment and on mathematical models later proposed by Duncan
Watts and Steven Strogatz, both theoretical and empirical work has shown that
the number of links that must be traversed from any point in the network to any
other point is relatively small.[^88] Fairly shallow "walks"-- that is,
clicking through three or four layers of links--allow a user to cover a large
portion of the Web.

What is true of the Web as a whole turns out to be true of the blogosphere as
well, and even of the specifically political blogosphere. Early 2003 saw
increasing conversations in the blogosphere about the emergence of an "Alist,"
a number of highly visible blogs that were beginning to seem more like mass
media than like blogs. In two blog-based studies, Clay Shirky and then Jason
Kottke published widely read explanations of how the blogosphere [[pg 253]] was
simply exhibiting the power law characteristics common on the Web.[^89] The
emergence in 2003 of discussions of this sort in the blogosphere is, it turns
out, hardly surprising. In a time-sensitive study also published in 2003, Kumar
and others provided an analysis of the network topology of the blogosphere.
They found that it was very similar to that of the Web as a whole--both at the
macro- and microlevels. Interestingly, they found that the strongly connected
core only developed after a certain threshold, in terms of total number of
nodes, had been reached, and that it began to develop extensively only in 2001,
reached about 20 percent of all blogs in 2002, and continued to grow rapidly.
They also showed that what they called the "community" structure--the degree of
clustering or mutual pointing within groups--was high, an order of magnitude
more than a random graph with a similar power law exponent would have
generated. Moreover, the degree to which a cluster is active or inactive,
highly connected or not, changes over time. In addition to time-insensitive
superstars, there are also flare-ups of connectivity for sites depending on the
activity and relevance of their community of interest. This latter observation
is consistent with what we saw happen for BoycottSBG.com. Kumar and his
collaborators explained these phenomena by the not-too-surprising claim that
bloggers link to each other based on topicality--that is, their judgment of the
quality and relevance of the materials--not only on the basis of how well
connected they are already.[^90]

This body of literature on network topology suggests a model for how order has
emerged on the Internet, the World Wide Web, and the blogosphere. The networked
public sphere allows hundreds of millions of people to publish whatever and
whenever they please without disintegrating into an unusable cacophony, as the
first-generation critics argued, and it filters and focuses attention without
re-creating the highly concentrated model of the mass media that concerned the
second-generation critique. We now know that the network at all its various
layers follows a degree of order, where some sites are vastly more visible than
most. This order is loose enough, however, and exhibits a sufficient number of
redundant paths from an enormous number of sites to another enormous number,
that the effect is fundamentally different from the small number of commercial
professional editors of the mass media.

Individuals and individual organizations cluster around topical,
organizational, or other common features. At a sufficiently fine-grained degree
of clustering, a substantial proportion of the clustered sites are moderately
connected, [[pg 254]] and each can therefore be a point of intake that will
effectively transmit observations or opinions within and among the users of
that topical or interest-based cluster. Because even in small clusters the
distribution of links still has a long tail, these smaller clusters still
include high-visibility nodes. These relatively high-visibility nodes can serve
as points of transfer to larger clusters, acting as an attention backbone that
transmits information among clusters. Subclusters within a general
category--such as liberal and conservative blogs clustering within the broader
cluster of political blogs-- are also interlinked, though less densely than
within-cluster connectivity. The higher level or larger clusters again exhibit
a similar feature, where higher visibility nodes can serve as clearinghouses
and connectivity points among clusters and across the Web. These are all highly
connected with redundant links within a giant, strongly connected
core--comprising more than a quarter of the nodes in any given level of
cluster. The small-worlds phenomenon means that individual users who travel a
small number of different links from similar starting points within a cluster
cover large portions of the Web and can find diverse sites. By then linking to
them on their own Web sites, or giving them to others by e-mail or blog post,
sites provide multiple redundant paths open to many users to and from most
statements on the Web. High-visibility nodes amplify and focus on given
statements, and in this regard, have greater power in the information
environment they occupy. However, there is sufficient redundancy of paths
through high-visibility nodes that no single node or small collection of nodes
can control the flow of information in the core and around the Web. This is
true both at the level of the cluster and at the level of the Web as a whole.

The result is an ordered system of intake, filtering, and synthesis that can in
theory emerge in networks generally, and empirically has been shown to have
emerged on the Web. It does not depend on single points of control. It avoids
the generation of a din through which no voice can be heard, as the fears of
fragmentation predicted. And, while money may be useful in achieving
visibility, the structure of the Web means that money is neither necessary nor
sufficient to grab attention--because the networked information economy, unlike
its industrial predecessor, does not offer simple points of dissemination and
control for purchasing assured attention. What the network topology literature
allows us to do, then, is to offer a richer, more detailed, and empirically
supported picture of how the network can be a platform for the public sphere
that is structured in a fundamentally different way than the mass-media model.
The problem is approached [[pg 255]] through a self-organizing principle,
beginning with communities of interest on smallish scales, practices of mutual
pointing, and the fact that, with freedom to choose what to see and who to link
to, with some codependence among the choices of individuals as to whom to link,
highly connected points emerge even at small scales, and continue to be
replicated with everlarger visibility as the clusters grow. Without forming or
requiring a formal hierarchy, and without creating single points of control,
each cluster generates a set of sites that offer points of initial filtering,
in ways that are still congruent with the judgments of participants in the
highly connected small cluster. The process is replicated at larger and more
general clusters, to the point where positions that have been synthesized
"locally" and "regionally" can reach Web-wide visibility and salience. It turns
out that we are not intellectual lemmings. We do not use the freedom that the
network has made possible to plunge into the abyss of incoherent babble.
Instead, through iterative processes of cooperative filtering and
"transmission" through the high visibility nodes, the low-end thin tail turns
out to be a peer-produced filter and transmission medium for a vastly larger
number of speakers than was imaginable in the mass-media model.

The effects of the topology of the network are reinforced by the cultural forms
of linking, e-mail lists, and the writable Web. The network topology literature
treats every page or site as a node. The emergence of the writable Web,
however, allows each node to itself become a cluster of users and posters who,
collectively, gain salience as a node. Slashdot is "a node" in the network as a
whole, one that is highly linked and visible. Slashdot itself, however, is a
highly distributed system for peer production of observations and opinions
about matters that people who care about information technology and
communications ought to care about. Some of the most visible blogs, like the
dailyKos, are cooperative blogs with a number of authors. More important, the
major blogs receive input--through posts or e-mails-- from their users. Recall,
for example, that the original discussion of a Sinclair boycott that would
focus on local advertisers arrived on TalkingPoints through an e-mail comment
from a reader. Talkingpoints regularly solicits and incorporates input from and
research by its users. The cultural practice of writing to highly visible blogs
with far greater ease than writing a letter to the editor and with looser
constraints on what gets posted makes these nodes themselves platforms for the
expression, filtering, and synthesis of observations and opinions. Moreover, as
Drezner and Farrell have shown, blogs have developed cultural practices of
mutual citation--when one blogger [[pg 256]] finds a source by reading another,
the practice is to link to the original blog, not only directly to the
underlying source. Jack Balkin has argued that the culture of linking more
generally and the "see for yourself" culture also significantly militate
against fragmentation of discourse, because users link to materials they are
commenting on, even in disagreement.

Our understanding of the emerging structure of the networked information
environment, then, provides the basis for a response to the family of
criticisms of the first generation claims that the Internet democratizes.
Recall that these criticisms, rooted in the problem of information overload, or
the Babel objection, revolved around three claims. The first claim was that the
Internet would result in a fragmentation of public discourse. The clustering of
topically related sites, such as politically oriented sites, and of communities
of interest, the emergence of high-visibility sites that the majority of sites
link to, and the practices of mutual linking show quantitatively and
qualitatively what Internet users likely experience intuitively. While there is
enormous diversity on the Internet, there are also mechanisms and practices
that generate a common set of themes, concerns, and public knowledge around
which a public sphere can emerge. Any given site is likely to be within a very
small number of clicks away from a site that is visible from a very large
number of other sites, and these form a backbone of common materials,
observations, and concerns. All the findings of power law distribution of
linking, clustering, and the presence of a strongly connected core, as well as
the linking culture and "see for yourself," oppose the fragmentation
prediction. Users self-organize to filter the universe of information that is
generated in the network. This self-organization includes a number of highly
salient sites that provide a core of common social and cultural experiences and
knowledge that can provide the basis for a common public sphere, rather than a
fragmented one.

The second claim was that fragmentation would cause polarization. Because
like-minded people would talk only to each other, they would tend to amplify
their differences and adopt more extreme versions of their positions. Given
that the evidence demonstrates there is no fragmentation, in the sense of a
lack of a common discourse, it would be surprising to find higher polarization
because of the Internet. Moreover, as Balkin argued, the fact that the Internet
allows widely dispersed people with extreme views to find each other and talk
is not a failure for the liberal public sphere, though it may present new
challenges for the liberal state in constraining extreme action. Only
polarization of discourse in society as a whole can properly be [[pg 257]]
considered a challenge to the attractiveness of the networked public sphere.
However, the practices of linking, "see for yourself," or quotation of the
position one is criticizing, and the widespread practice of examining and
criticizing the assumptions and assertions of one's interlocutors actually
point the other way, militating against polarization. A potential
counterargument, however, was created by the most extensive recent study of the
political blogosphere. In that study, Adamic and Glance showed that only about
10 percent of the links on any randomly selected political blog linked to a
site across the ideological divide. The number increased for the "A-list"
political blogs, which linked across the political divide about 15 percent of
the time. The picture that emerges is one of distinct "liberal" and
"conservative" spheres of conversation, with very dense links within, and more
sparse links between them. On one interpretation, then, although there are
salient sites that provide a common subject matter for discourse, actual
conversations occur in distinct and separate spheres--exactly the kind of
setting that Sunstein argued would lead to polarization. Two of the study's
findings, however, suggest a different interpretation. The first was that there
was still a substantial amount of cross-divide linking. One out of every six or
seven links in the top sites on each side of the divide linked to the other
side in roughly equal proportions (although conservatives tended to link
slightly more overall--both internally and across the divide). The second was,
that in an effort to see whether the more closely interlinked conservative
sites therefore showed greater convergence "on message," Adamic and Glance
found that greater interlinking did not correlate with less diversity in
external (outside of the blogosphere) reference points.[^91] Together, these
findings suggest a different interpretation. Each cluster of more or less
like-minded blogs tended to read each other and quote each other much more than
they did the other side. This operated not so much as an echo chamber as a
forum for working out of observations and interpretations internally, among
likeminded people. Many of these initial statements or inquiries die because
the community finds them uninteresting or fruitless. Some reach greater
salience, and are distributed through the high-visibility sites throughout the
community of interest. Issues that in this form reached political salience
became topics of conversation and commentary across the divide. This is
certainly consistent with both the BoycottSBG and Diebold stories, where we saw
a significant early working out of strategies and observations before the
criticism reached genuine political salience. There would have been no point
for opponents to link to and criticize early ideas kicked around within the
community, [[pg 258]] like opposing Sinclair station renewal applications. Only
after a few days, when the boycott was crystallizing, would opponents have
reason to point out the boycott effort and discuss it. This interpretation also
well characterizes the way in which the Trent Lott story described later in
this chapter began percolating on the liberal side of the blogosphere, but then
migrated over to the center-right.

The third claim was that money would reemerge as the primary source of power
brokerage because of the difficulty of getting attention on the Net.
Descriptively, it shares a prediction with the second-generation claims:
Namely, that the Internet will centralize discourse. It differs in the
mechanism of concentration: it will not be the result of an emergent property
of large-scale networks, but rather of an old, tried-and-true way of capturing
the political arena--money. But the peer-production model of filtering and
discussion suggests that the networked public sphere will be substantially less
corruptible by money. In the interpretation that I propose, filtering for the
network as a whole is done as a form of nested peer-review decisions, beginning
with the speaker's closest information affinity group. Consistent with what we
have been seeing in more structured peer-production projects like /Wikipedia/,
Slashdot, or free software, communities of interest use clustering and mutual
pointing to peer produce the basic filtering mechanism necessary for the public
sphere to be effective and avoid being drowned in the din of the crowd. The
nested structure of the Web, whereby subclusters form relatively dense
higher-level clusters, which then again combine into even higher-level
clusters, and in each case, have a number of high-end salient sites, allows for
the statements that pass these filters to become globally salient in the
relevant public sphere. This structure, which describes the analytic and
empirical work on the Web as a whole, fits remarkably well as a description of
the dynamics we saw in looking more closely at the success of the boycott on
Sinclair, as well as the successful campaign to investigate and challenge
Diebold's voting machines.

The peer-produced structure of the attention backbone suggests that money is
neither necessary nor sufficient to attract attention in the networked public
sphere (although nothing suggests that money has become irrelevant to political
attention given the continued importance of mass media). It renders less
surprising Howard Dean's strong campaign for the Democratic presidential
primaries in 2003 and the much more stable success of MoveOn.org since the late
1990s. These suggest that attention on the network has more to do with
mobilizing the judgments, links, and cooperation [[pg 259]] of large bodies of
small-scale contributors than with applying large sums of money. There is no
obvious broadcast station that one can buy in order to assure salience. There
are, of course, the highly visible sites, and they do offer a mechanism of
getting your message to large numbers of people. However, the degree of engaged
readership, interlinking, and clustering suggests that, in fact, being exposed
to a certain message in one or a small number of highly visible places accounts
for only a small part of the range of "reading" that gets done. More
significantly, it suggests that reading, as opposed to having a conversation,
is only part of what people do in the networked environment. In the networked
public sphere, receiving information or getting out a finished message are only
parts, and not necessarily the most important parts, of democratic discourse.
The central desideratum of a political campaign that is rooted in the Internet
is the capacity to engage users to the point that they become effective
participants in a conversation and an effort; one that they have a genuine
stake in and that is linked to a larger, society-wide debate. This engagement
is not easily purchased, nor is it captured by the concept of a well-educated
public that receives all the information it needs to be an informed citizenry.
Instead, it is precisely the varied modes of participation in small-, medium-,
and large-scale conversations, with varied but sustained degrees of efficacy,
that make the public sphere of the networked environment different, and more
attractive, than was the mass-media-based public sphere.

The networked public sphere is not only more resistant to control by money, but
it is also less susceptible to the lowest-common-denominator orientation that
the pursuit of money often leads mass media to adopt. Because communication in
peer-produced media starts from an intrinsic motivation--writing or commenting
about what one cares about--it begins with the opposite of lowest common
denominator. It begins with what irks you, the contributing peer, individually,
the most. This is, in the political world, analogous to Eric Raymond's claim
that every free or open-source software project begins with programmers with an
itch to scratch--something directly relevant to their lives and needs that they
want to fix. The networked information economy, which makes it possible for
individuals alone and in cooperation with others to scour the universe of
politically relevant events, to point to them, and to comment and argue about
them, follows a similar logic. This is why one freelance writer with lefty
leanings, Russ Kick, is able to maintain a Web site, The Memory Hole, with
documents that he gets by filing Freedom of Information Act requests. In April
[[pg 260]] 2004, Kick was the first to obtain the U.S. military's photographs
of the coffins of personnel killed in Iraq being flown home. No mainstream news
organization had done so, but many published the photographs almost immediately
after Kick had obtained them. Like free software, like Davis and the bloggers
who participated in the debates over the Sinclair boycott, or the students who
published the Diebold e-mails, the decision of what to publish does not start
from a manager's or editor's judgment of what would be relevant and interesting
to many people without being overly upsetting to too many others. It starts
with the question: What do I care about most now?

To conclude, we need to consider the attractiveness of the networked public
sphere not from the perspective of the mid-1990s utopianism, but from the
perspective of how it compares to the actual media that have dominated the
public sphere in all modern democracies. The networked public sphere provides
an effective nonmarket alternative for intake, filtering, and synthesis outside
the market-based mass media. This nonmarket alternative can attenuate the
influence over the public sphere that can be achieved through control over, or
purchase of control over, the mass media. It offers a substantially broader
capture basin for intake of observations and opinions generated by anyone with
a stake in the polity, anywhere. It appears to have developed a structure that
allows for this enormous capture basin to be filtered, synthesized, and made
part of a polity-wide discourse. This nested structure of clusters of
communities of interest, typified by steadily increasing visibility of
superstar nodes, allows for both the filtering and salience to climb up the
hierarchy of clusters, but offers sufficient redundant paths and interlinking
to avoid the creation of a small set of points of control where power can be
either directly exercised or bought.

There is, in this story, an enormous degree of contingency and factual
specificity. That is, my claims on behalf of the networked information economy
as a platform for the public sphere are not based on general claims about human
nature, the meaning of liberal discourse, context-independent efficiency, or
the benevolent nature of the technology we happen to have stumbled across at
the end of the twentieth century. They are instead based on, and depend on the
continued accuracy of, a description of the economics of fabrication of
computers and network connections, and a description of the dynamics of linking
in a network of connected nodes. As such, my claim is not that the Internet
inherently liberates. I do not claim that commonsbased production of
information, knowledge, and culture will win out by [[pg 261]] some
irresistible progressive force. That is what makes the study of the political
economy of information, knowledge, and culture in the networked environment
directly relevant to policy. The literature on network topology suggests that,
as long as there are widely distributed capabilities to publish, link, and
advise others about what to read and link to, networks enable intrinsic
processes that allow substantial ordering of the information. The pattern of
information flow in such a network is more resistant to the application of
control or influence than was the mass-media model. But things can change.
Google could become so powerful on the desktop, in the e-mail utility, and on
the Web, that it will effectively become a supernode that will indeed raise the
prospect of a reemergence of a mass-media model. Then the politics of search
engines, as Lucas Introna and Helen Nissenbaum called it, become central. The
zeal to curb peer-to-peer file sharing of movies and music could lead to a
substantial redesign of computing equipment and networks, to a degree that
would make it harder for end users to exchange information of their own making.
Understanding what we will lose if such changes indeed warp the topology of the
network, and through it the basic structure of the networked public sphere, is
precisely the object of this book as a whole. For now, though, let us say that
the networked information economy as it has developed to this date has a
capacity to take in, filter, and synthesize observations and opinions from a
population that is orders of magnitude larger than the population that was
capable of being captured by the mass media. It has done so without re-creating
identifiable and reliable points of control and manipulation that would
replicate the core limitation of the mass-media model of the public sphere--its
susceptibility to the exertion of control by its regulators, owners, or those
who pay them.

WHO WILL PLAY THE WATCHDOG FUNCTION?
....................................

A distinct critique leveled at the networked public sphere as a platform for
democratic politics is the concern for who will fill the role of watchdog. Neil
Netanel made this argument most clearly. His concern was that, perhaps freedom
of expression for all is a good thing, and perhaps we could even overcome
information overflow problems, but we live in a complex world with powerful
actors. Government and corporate power is large, and individuals, no matter how
good their tools, cannot be a serious alternative to a well-funded, independent
press that can pay investigative reporters, defend lawsuits, and generally act
like the New York Times and the Washington Post [[pg 262]] when they published
the Pentagon Papers in the teeth of the Nixon administration's resistance,
providing some of the most damning evidence against the planning and continued
prosecution of the war in Vietnam. Netanel is cognizant of the tensions between
the need to capture large audiences and sell advertising, on the one hand, and
the role of watchdog, on the other. He nonetheless emphasizes that the
networked public sphere cannot investigate as deeply or create the public
salience that the mass media can. These limitations make commercial mass media,
for all their limitations, necessary for a liberal public sphere.

This diagnosis of the potential of the networked public sphere underrepresents
its productive capacity. The Diebold story provides in narrative form a
detailed response to each of the concerns. The problem of voting machines has
all the characteristics of an important, hard subject. It stirs deep fears that
democracy is being stolen, and is therefore highly unsettling. It involves a
difficult set of technical judgments about the functioning of voting machines.
It required exposure and analysis of corporate-owned materials in the teeth of
litigation threats and efforts to suppress and discredit the criticism. At each
juncture in the process, the participants in the critique turned iteratively to
peer production and radically distributed methods of investigation, analysis,
distribution, and resistance to suppression: the initial observations of the
whistle-blower or the hacker; the materials made available on a "see for
yourself" and "come analyze this and share your insights" model; the
distribution by students; and the fallback option when their server was shut
down of replication around the network. At each stage, a peer-production
solution was interposed in place of where a well-funded, high-end mass-media
outlet would have traditionally applied funding in expectation of sales of
copy. And it was only after the networked public sphere developed the analysis
and debate that the mass media caught on, and then only gingerly.

The Diebold case was not an aberration, but merely a particularly rich case
study of a much broader phenomenon, most extensively described in Dan Gilmore's
We the Media. The basic production modalities that typify the networked
information economy are now being applied to the problem of producing
politically relevant information. In 2005, the most visible example of
application of the networked information economy--both in its peer-production
dimension and more generally by combining a wide range of nonproprietary
production models--to the watchdog function of the media is the political
blogosphere. The founding myth of the blogosphere's [[pg 263]] journalistic
potency was built on the back of then Senate majority leader Trent Lott. In
2002, Lott had the indiscretion of saying, at the onehundredth-birthday party
of Republican Senator Strom Thurmond, that if Thurmond had won his Dixiecrat
presidential campaign, "we wouldn't have had all these problems over all these
years." Thurmond had run on a segregationist campaign, splitting from the
Democratic Party in opposition to Harry Truman's early civil rights efforts, as
the post?World War II winds began blowing toward the eventual demise of formal,
legal racial segregation in the United States. Few positions are taken to be
more self-evident in the national public morality of early twenty-first-century
America than that formal, state-imposed, racial discrimination is an
abomination. And yet, the first few days after the birthday party at which Lott
made his statement saw almost no reporting on the statement. ABC News and the
Washington Post made small mention of it, but most media outlets reported
merely on a congenial salute and farewell celebration of the Senate's oldest
and longestserving member. Things were different in the blogosphere. At first
liberal blogs, and within three days conservative bloggers as well, began to
excavate past racist statements by Lott, and to beat the drums calling for his
censure or removal as Senate leader. Within about a week, the story surfaced in
the mainstream media, became a major embarrassment, and led to Lott's
resignation as Senate majority leader about a week later. A careful case study
of this event leaves it unclear why the mainstream media initially ignored the
story.[^92] It may have been that the largely social event drew the wrong sort
of reporters. It may have been that reporters and editors who depend on major
Washington, D.C., players were reluctant to challenge Lott. Perhaps they
thought it rude to emphasize this indiscretion, or too upsetting to us all to
think of just how close to the surface thoughts that we deem abominable can
lurk. There is little disagreement that the day after the party, the story was
picked up and discussed by Marshall on TalkingPoints, as well as by another
liberal blogger, Atrios, who apparently got it from a post on Slate's
"Chatterbox," which picked it up from ABC News's own The Note, a news summary
made available on the television network's Web site. While the mass media
largely ignored the story, and the two or three mainstream reporters who tried
to write about it were getting little traction, bloggers were collecting more
stories about prior instances where Lott's actions tended to suggest support
for racist causes. Marshall, for example, found that Lott had filed a 1981
amicus curiae brief in support of Bob Jones University's effort to retain its
tax-exempt status. The U.S. government had rescinded [[pg 264]] that status
because the university practiced racial discrimination--such as prohibiting
interracial dating. By Monday of the following week, four days after the
remarks, conservative bloggers like Glenn Reynolds on Instapundit, Andrew
Sullivan, and others were calling for Lott's resignation. It is possible that,
absent the blogosphere, the story would still have flared up. There were two or
so mainstream reporters still looking into the story. Jesse Jackson had come
out within four days of the comment and said Lott should resign as majority
leader. Eventually, when the mass media did enter the fray, its coverage
clearly dominated the public agenda and its reporters uncovered materials that
helped speed Lott's exit. However, given the short news cycle, the lack of
initial interest by the media, and the large time lag between the event itself
and when the media actually took the subject up, it seems likely that without
the intervention of the blogosphere, the story would have died. What happened
instead is that the cluster of political blogs--starting on the Left but then
moving across the Left-Right divide--took up the subject, investigated, wrote
opinions, collected links and public interest, and eventually captured enough
attention to make the comments a matter of public importance. Free from the
need to appear neutral and not to offend readers, and free from the need to
keep close working relationships with news subjects, bloggers were able to
identify something that grated on their sensibilities, talk about it, dig
deeper, and eventually generate a substantial intervention into the public
sphere. That intervention still had to pass through the mass media, for we
still live in a communications environment heavily based on those media.
However, the new source of insight, debate, and eventual condensation of
effective public opinion came from within the networked information
environment.

The point is not to respond to the argument with a litany of anecdotes. The
point is that the argument about the commercial media's role as watchdog turns
out to be a familiar argument--it is the same argument that was made about
software and supercomputers, encyclopedias and immersive entertainment scripts.
The answer, too, is by now familiar. Just as the World Wide Web can offer a
platform for the emergence of an enormous and effective almanac, just as free
software can produce excellent software and peer production can produce a good
encyclopedia, so too can peer production produce the public watchdog function.
In doing so, clearly the unorganized collection of Internet users lacks some of
the basic tools of the mass media: dedicated full-time reporters; contacts with
politicians who need media to survive, and therefore cannot always afford to
stonewall questions; or [[pg 265]] public visibility and credibility to back
their assertions. However, networkbased peer production also avoids the
inherent conflicts between investigative reporting and the bottom line--its
cost, its risk of litigation, its risk of withdrawal of advertising from
alienated corporate subjects, and its risk of alienating readers. Building on
the wide variation and diversity of knowledge, time, availability, insight, and
experience, as well as the vast communications and information resources on
hand for almost anyone in advanced economies, we are seeing that the watchdog
function too is being peer produced in the networked information economy.

Note that while my focus in this chapter has been mostly the organization of
public discourse, both the Sinclair and the Diebold case studies also identify
characteristics of distributed political action. We see collective action
emerging from the convergence of independent individual actions, with no
hierarchical control like that of a political party or an organized campaign.
There may be some coordination and condensation points--like BoycottSBG.com or
blackboxvoting.org. Like other integration platforms in peer-production
systems, these condensation points provide a critical function. They do not,
however, control the process. One manifestation of distributed coordination for
political action is something Howard Rheingold has called "smart mobs"--large
collections of individuals who are able to coordinate real-world action through
widely distributed information and communications technology. He tells of the
"People Power II" revolution in Manila in 2001, where demonstrations to oust
then president Estrada were coordinated spontaneously through extensive text
messaging.[^93] Few images in the early twentyfirst century can convey this
phenomenon more vividly than the demonstrations around the world on February
15, 2003. Between six and ten million protesters were reported to have gone to
the streets of major cities in about sixty countries in opposition to the
American-led invasion of Iraq. There had been no major media campaign leading
up to the demonstrations-- though there was much media attention to them later.
There had been no organizing committee. Instead, there was a network of roughly
concordant actions, none controlling the other, all loosely discussing what
ought to be done and when. MoveOn.org in the United States provides an example
of a coordination platform for a network of politically mobilized activities.
It builds on e-mail and Web-based media to communicate opportunities for
political action to those likely to be willing and able to take it. Radically
distributed, network-based solutions to the problems of political mobilization
rely on the same characteristics as networked information production [[pg 266]]
more generally: extensive communications leading to concordant and cooperative
patterns of behavior without the introduction of hierarchy or the interposition
of payment.

USING NETWORKED COMMUNICATION TO WORK AROUND AUTHORITARIAN CONTROL
..................................................................

The Internet and the networked public sphere offer a different set of potential
benefits, and suffer a different set of threats, as a platform for liberation
in authoritarian countries. State-controlled mass-media models are highly
conducive to authoritarian control. Because they usually rely on a small number
of technical and organizational points of control, mass media offer a
relatively easy target for capture and control by governments. Successful
control of such universally visible media then becomes an important tool of
information manipulation, which, in turn, eases the problem of controlling the
population. Not surprisingly, capture of the national television and radio
stations is invariably an early target of coups and revolutions. The highly
distributed networked architecture of the Internet makes it harder to control
communications in this way.

The case of Radio B92 in Yugoslavia offers an example. B92 was founded in 1989,
as an independent radio station. Over the course of the 1990s, it developed a
significant independent newsroom broadcast over the station itself, and
syndicated through thirty affiliated independent stations. B92 was banned twice
after the NATO bombing of Belgrade, in an effort by the Milosevic regime to
control information about the war. In each case, however, the station continued
to produce programming, and distributed it over the Internet from a server
based in Amsterdam. The point is a simple one. Shutting down a broadcast
station is simple. There is one transmitter with one antenna, and police can
find and hold it. It is much harder to shut down all connections from all
reporters to a server and from the server back into the country wherever a
computer exists.

This is not to say that the Internet will of necessity in the long term lead
all authoritarian regimes to collapse. One option open to such regimes is
simply to resist Internet use. In 2003, Burma, or Myanmar, had 28,000 Internet
users out of a population of more than 42 million, or one in fifteen hundred,
as compared, for example, to 6 million out of 65 million in neighboring
Thailand, or roughly one in eleven. Most countries are not, however, willing to
forgo the benefits of connectivity to maintain their control. Iran's [[pg 267]]
population of 69 million includes 4.3 million Internet users, while China has
about 80 million users, second only to the United States in absolute terms, out
of a population of 1.3 billion. That is, both China and Iran have a density of
Internet users of about one in sixteen.[^94] Burma's negligible level of
Internet availability is a compound effect of low gross domestic product (GDP)
per capita and government policies. Some countries with similar GDP levels
still have levels of Internet users in the population that are two orders of
magnitude higher: Cameroon (1 Internet user for every 27 residents), Moldova (1
in 30), and Mongolia (1 in 55). Even very large poor countries have several
times more users per population than Myanmar: like Pakistan (1 in 100),
Mauritania (1 in 300), and Bangladesh (1 in 580). Lawrence Solum and Minn Chung
outline how Myanmar achieves its high degree of control and low degree of
use.[^95] Myanmar has only one Internet service provider (ISP), owned by the
government. The government must authorize anyone who wants to use the Internet
or create a Web page within the country. Some of the licensees, like foreign
businesses, are apparently permitted and enabled only to send e-mail, while
using the Web is limited to security officials who monitor it. With this level
of draconian regulation, Myanmar can avoid the liberating effects of the
Internet altogether, at the cost of losing all its economic benefits. Few
regimes are willing to pay that price.

Introducing Internet communications into a society does not, however,
immediately and automatically mean that an open, liberal public sphere emerges.
The Internet is technically harder to control than mass media. It increases the
cost and decreases the efficacy of information control. However, a regime
willing and able to spend enough money and engineering power, and to limit its
population's access to the Internet sufficiently, can have substantial success
in controlling the flow of information into and out of its country. Solum and
Chung describe in detail one of the most extensive and successful of these
efforts, the one that has been conducted by China-- home to the second-largest
population of Internet users in the world, whose policies controlled use of the
Internet by two out of every fifteen Internet users in the world in 2003. In
China, the government holds a monopoly over all Internet connections going into
and out of the country. It either provides or licenses the four national
backbones that carry traffic throughout China and connect it to the global
network. ISPs that hang off these backbones are licensed, and must provide
information about the location and workings of their facilities, as well as
comply with a code of conduct. Individual [[pg 268]] users must register and
provide information about their machines, and the many Internet cafes are
required to install filtering software that will filter out subversive sites.
There have been crackdowns on Internet cafes to enforce these requirements.
This set of regulations has replicated one aspect of the mass-medium model for
the Internet--it has created a potential point of concentration or
centralization of information flow that would make it easier to control
Internet use. The highly distributed production capabilities of the networked
information economy, however, as opposed merely to the distributed carriage
capability of the Internet, mean that more must be done at this bottleneck to
squelch the flow of information and opinion than would have to be done with
mass media. That "more" in China has consisted of an effort to employ automatic
filters--some at the level of the cybercafe or the local ISP, some at the level
of the national backbone networks. The variability of these loci and their
effects is reflected in partial efficacy and variable performance for these
mechanisms. The most extensive study of the efficacy of these strategies for
controlling information flows over the Internet to China was conducted by
Jonathan Zittrain and Ben Edelman. From servers within China, they sampled
about two hundred thousand Web sites and found that about fifty thousand were
unavailable at least once, and close to nineteen thousand were unavailable on
two distinct occasions. The blocking patterns seemed to follow mass-media
logic--BBC News was consistently unavailable, as CNN and other major news sites
often were; the U.S. court system official site was unavailable. However, Web
sites that provided similar information--like those that offered access to all
court cases but were outside the official system--were available. The core Web
sites of human rights organizations or of Taiwan and Tibet-related
organizations were blocked, and about sixty of the top one hundred results for
"Tibet" on Google were blocked. What is also apparent from their study,
however, and confirmed by Amnesty International's reports on Internet
censorship in China, is that while censorship is significant, it is only
partially effective.[^96] The Amnesty report noted that Chinese users were able
to use a variety of techniques to avoid the filtering, such as the use of proxy
servers, but even Zittrain and Edelman, apparently testing for filtering as
experienced by unsophisticated or compliant Internet users in China, could
access many sites that would, on their face, seem potentially destabilizing.

This level of censorship may indeed be effective enough for a government
negotiating economic and trade expansion with political stability and control.
It suggests, however, limits of the ability of even a highly dedicated [[pg
269]] government to control the capacity of Internet communications to route
around censorship and to make it much easier for determined users to find
information they care about, and to disseminate their own information to
others. Iran's experience, with a similar level of Internet penetration,
emphasizes the difficulty of maintaining control of Internet publication.[^97]
Iran's network emerged from 1993 onward from the university system, quite
rapidly complemented by commercial ISPs. Because deployment and use of the
Internet preceded its regulation by the government, its architecture is less
amenable to centralized filtering and control than China's. Internet access
through university accounts and cybercafes appears to be substantial, and until
the past three or four years, had operated free of the crackdowns and prison
terms suffered by opposition print publications and reporters. The conservative
branches of the regime seem to have taken a greater interest in suppressing
Internet communications since the publication of imprisoned Ayatollah
Montazeri's critique of the foundations of the Islamic state on the Web in
December 2000. While the original Web site, montazeri.com, seems to have been
eliminated, the site persists as montazeri.ws, using a Western Samoan domain
name, as do a number of other Iranian publications. There are now dozens of
chat rooms, blogs, and Web sites, and e-mail also seems to be playing an
increasing role in the education and organization of an opposition. While the
conservative branches of the Iranian state have been clamping down on these
forms, and some bloggers and Web site operators have found themselves subject
to the same mistreatment as journalists, the efficacy of these efforts to shut
down opposition seems to be limited and uneven.

Media other than static Web sites present substantially deeper problems for
regimes like those of China and Iran. Scanning the text of e-mail messages of
millions of users who can encrypt their communications with widely available
tools creates a much more complex problem. Ephemeral media like chat rooms and
writable Web tools allow the content of an Internet communication or Web site
to be changed easily and dynamically, so that blocking sites becomes harder,
while coordinating moves to new sites to route around blocking becomes easier.
At one degree of complexity deeper, the widely distributed architecture of the
Net also allows users to build censorship-resistant networks by pooling their
own resources. The pioneering example of this approach is Freenet, initially
developed in 1999-2000 by Ian Clarke, an Irish programmer fresh out of a degree
in computer science and artificial intelligence at Edinburgh University. Now a
broader free-software project, Freenet [[pg 270]] is a peer-to-peer application
specifically designed to be censorship resistant. Unlike the more famous
peer-to-peer network developed at the time--Napster--Freenet was not intended
to store music files on the hard drives of users. Instead, it stores bits and
pieces of publications, and then uses sophisticated algorithms to deliver the
documents to whoever seeks them, in encrypted form. This design trades off easy
availability for a series of security measures that prevent even the owners of
the hard drives on which the data resides--or government agents that search
their computers--from knowing what is on their hard drive or from controlling
it. As a practical matter, if someone in a country that prohibits certain
content but enables Internet connections wants to publish content--say, a Web
site or blog--safely, they can inject it into the Freenet system. The content
will be encrypted and divided into little bits and pieces that are stored in
many different hard drives of participants in the network. No single computer
will have all the information, and shutting down any given computer will not
make the information unavailable. It will continue to be accessible to anyone
running the Freenet client. Freenet indeed appears to be used in China,
although the precise scope is hard to determine, as the network is intended to
mask the identity and location of both readers and publishers in this system.
The point to focus on is not the specifics of Freenet, but the feasibility of
constructing user-based censorship-resistant storage and retrieval systems that
would be practically impossible for a national censorship system to identify
and block subversive content.

To conclude, in authoritarian countries, the introduction of Internet
communications makes it harder and more costly for governments to control the
public sphere. If these governments are willing to forgo the benefits of
Internet connectivity, they can avoid this problem. If they are not, they find
themselves with less control over the public sphere. There are, obviously,
other means of more direct repression. However, control over the mass media
was, throughout most of the twentieth century, a core tool of repressive
governments. It allowed them to manipulate what the masses of their populations
knew and believed, and thus limited the portion of the population that the
government needed to physically repress to a small and often geographically
localized group. The efficacy of these techniques of repression is blunted by
adoption of the Internet and the emergence of a networked information economy.
Low-cost communications, distributed technical and organizational structure,
and ubiquitous presence of dynamic authorship [[pg 271]] tools make control
over the public sphere difficult, and practically never perfect.

TOWARD A NETWORKED PUBLIC SPHERE
................................

The first generation of statements that the Internet democratizes was correct
but imprecise. The Internet does restructure public discourse in ways that give
individuals a greater say in their governance than the mass media made
possible. The Internet does provide avenues of discourse around the bottlenecks
of older media, whether these are held by authoritarian governments or by media
owners. But the mechanisms for this change are more complex than those
articulated in the past. And these more complex mechanisms respond to the basic
critiques that have been raised against the notion that the Internet enhances
democracy.

Part of what has changed with the Internet is technical infrastructure. Network
communications do not offer themselves up as easily for single points of
control as did the mass media. While it is possible for authoritarian regimes
to try to retain bottlenecks in the Internet, the cost is higher and the
efficacy lower than in mass-media-dominated systems. While this does not mean
that introduction of the Internet will automatically result in global
democratization, it does make the work of authoritarian regimes harder. In
liberal democracies, the primary effect of the Internet runs through the
emergence of the networked information economy. We are seeing the emergence to
much greater significance of nonmarket, individual, and cooperative
peerproduction efforts to produce universal intake of observations and opinions
about the state of the world and what might and ought to be done about it. We
are seeing the emergence of filtering, accreditation, and synthesis mechanisms
as part of network behavior. These rely on clustering of communities of
interest and association and highlighting of certain sites, but offer
tremendous redundancy of paths for expression and accreditation. These
practices leave no single point of failure for discourse: no single point where
observations can be squelched or attention commanded--by fiat or with the
application of money. Because of these emerging systems, the networked
information economy is solving the information overload and discourse
fragmentation concerns without reintroducing the distortions of the mass-media
model. Peer production, both long-term and organized, as in the case of
Slashdot, and ad hoc and dynamically formed, as in the case of blogging or [[pg
272]] the Sinclair or Diebold cases, is providing some of the most important
functionalities of the media. These efforts provide a watchdog, a source of
salient observations regarding matters of public concern, and a platform for
discussing the alternatives open to a polity.

In the networked information environment, everyone is free to observe, report,
question, and debate, not only in principle, but in actual capability. They can
do this, if not through their own widely read blog, then through a cycle of
mailing lists, collective Web-based media like Slashdot, comments on blogs, or
even merely through e-mails to friends who, in turn, have meaningful visibility
in a smallish-scale cluster of sites or lists. We are witnessing a fundamental
change in how individuals can interact with their democracy and experience
their role as citizens. Ideal citizens need not be seen purely as trying to
inform themselves about what others have found, so that they can vote
intelligently. They need not be limited to reading the opinions of opinion
makers and judging them in private conversations. They are no longer
constrained to occupy the role of mere readers, viewers, and listeners. They
can be, instead, participants in a conversation. Practices that begin to take
advantage of these new capabilities shift the locus of content creation from
the few professional journalists trolling society for issues and observations,
to the people who make up that society. They begin to free the public agenda
setting from dependence on the judgments of managers, whose job it is to assure
that the maximum number of readers, viewers, and listeners are sold in the
market for eyeballs. The agenda thus can be rooted in the life and experience
of individual participants in society--in their observations, experiences, and
obsessions. The network allows all citizens to change their relationship to the
public sphere. They no longer need be consumers and passive spectators. They
can become creators and primary subjects. It is in this sense that the Internet
democratizes. [[pg 273]]


----------------------------------------
CHAPTER 8 - CULTURAL FREEDOM: A CULTURE BOTH PLASTIC AND CRITICAL
-----------------------------------------------------------------

Gone with the Wind

There was a land of Cavaliers and Cotton Fields called the Old South.
Here in this pretty world, Gallantry took its last bow. Here was the
last ever to be seen of Knights and their Ladies Fair, of Master and
of Slave. Look for it only in books, for it is no more than a dream
remembered, a Civilization gone with the wind.

--MGM (1939) film adaptation of Margaret Mitchell's novel (1936)

Strange Fruit

Southern trees bear strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees.

Pastoral scene of the gallant south,
The bulging eyes and the twisted mouth,
Scent of magnolias, sweet and fresh,
Then the sudden smell of burning flesh.

Here is the fruit for the crows to pluck,
For the rain to gather, for the wind to suck,
For the sun to rot, for the trees to drop,
Here is a strange and bitter crop.

--Billie Holiday (1939)
  from lyrics by Abel Meeropol (1937)

In 1939, Gone with the Wind reaped seven Oscars, while Billie Holiday's song
reached number 16 on the charts, even though Columbia Records refused to
release it: Holiday had to record it with a small company that was run out of a
storefront in midtown Manhattan. On the eve of the second reconstruction era,
which was to overhaul the legal framework of race relations over the two
decades beginning with the desegregation of the armed forces in the late 1940s
and culminating with the civil rights acts passed between 1964-1968, the two
sides of the debate over desegregation and the legacy of slavery were minting
new icons through which to express their most basic beliefs about the South and
its peculiar institutions. As the following three decades unfolded and the
South was gradually forced to change its ways, the cultural domain continued to
work out the meaning of race relations in the United States and the history of
slavery. The actual slogging of regulation of discrimination, implementation of
desegregation and later affirmative action, and the more local politics of
hiring and firing were punctuated throughout this period by salient iconic
retellings of the stories of race relations in the United States, from Guess
Who's Coming to Dinner? to Roots. The point of this chapter, however, is not to
discuss race relations, but to understand culture and cultural production in
terms of political theory. Gone with the Wind and Strange Fruit or Guess Who's
Coming to Dinner? offer us intuitively accessible instances of a much broader
and more basic characteristic of human understanding and social relations.
Culture, shared meaning, and symbols are how we construct our views of life
across a wide range of domains--personal, political, and social. How culture is
produced is therefore an essential ingredient in structuring how freedom and
justice are perceived, conceived, and pursued. In the twentieth century,
Hollywood and the recording industry came to play a very large role in this
domain. The networked information economy now seems poised to attenuate that
role in favor of a more participatory and transparent cultural production
system.

Cultural freedom occupies a position that relates to both political freedom and
individual autonomy, but is synonymous with neither. The root of its importance
is that none of us exist outside of culture. As individuals and as political
actors, we understand the world we occupy, evaluate it, and act in it from
within a set of understandings and frames of meaning and reference that we
share with others. What institutions and decisions are considered "legitimate"
and worthy of compliance or participation; what courses of [[pg 275]] action
are attractive; what forms of interaction with others are considered
appropriate--these are all understandings negotiated from within a set of
shared frames of meaning. How those frames of meaning are shaped and by whom
become central components of the structure of freedom for those individuals and
societies that inhabit it and are inhabited by it. They define the public
sphere in a much broader sense than we considered in the prior chapters.

The networked information economy makes it possible to reshape both the "who"
and the "how" of cultural production relative to cultural production in the
twentieth century. It adds to the centralized, market-oriented production
system a new framework of radically decentralized individual and cooperative
nonmarket production. It thereby affects the ability of individuals and groups
to participate in the production of the cultural tools and frameworks of human
understanding and discourse. It affects the way we, as individuals and members
of social and political clusters, interact with culture, and through it with
each other. It makes culture more transparent to its inhabitants. It makes the
process of cultural production more participatory, in the sense that more of
those who live within a culture can actively participate in its creation. We
are seeing the possibility of an emergence of a new popular culture, produced
on the folk-culture model and inhabited actively, rather than passively
consumed by the masses. Through these twin characteristics--transparency and
participation--the networked information economy also creates greater space for
critical evaluation of cultural materials and tools. The practice of producing
culture makes us all more sophisticated readers, viewers, and listeners, as
well as more engaged makers.

Throughout the twentieth century, the making of widely shared images and
symbols was a concentrated practice that went through the filters of Hollywood
and the recording industry. The radically declining costs of manipulating video
and still images, audio, and text have, however, made culturally embedded
criticism and broad participation in the making of meaning much more feasible
than in the past. Anyone with a personal computer can cut and mix files, make
their own files, and publish them to a global audience. This is not to say that
cultural bricolage, playfulness, and criticism did not exist before. One can go
to the avant-garde movement, but equally well to African-Brazilian culture or
to Our Lady of Guadalupe to find them. Even with regard to television, that
most passive of electronic media, John Fiske argued under the rubric of
"semiotic democracy" that viewers engage [[pg 276]] in creative play and
meaning making around the TV shows they watch. However, the technical
characteristics of digital information technology, the economics of networked
information production, and the social practices of networked discourse
qualitatively change the role individuals can play in cultural production.

The practical capacity individuals and noncommercial actors have to use and
manipulate cultural artifacts today, playfully or critically, far outstrips
anything possible in television, film, or recorded music, as these were
organized throughout the twentieth century. The diversity of cultural moves and
statements that results from these new opportunities for creativity vastly
increases the range of cultural elements accessible to any individual. Our
ability, therefore, to navigate the cultural environment and make it our own,
both through creation and through active selection and attention, has increased
to the point of making a qualitative difference. In the academic law
literature, Niva Elkin Koren wrote early about the potential democratization of
"meaning making processes," William Fisher about "semiotic democracy," and Jack
Balkin about a "democratic culture." Lessig has explored the generative
capacity of the freedom to create culture, its contribution to creativity
itself. These efforts revolve around the idea that there is something
normatively attractive, from the perspective of "democracy" as a liberal value,
about the fact that anyone, using widely available equipment, can take from the
existing cultural universe more or less whatever they want, cut it, paste it,
mix it, and make it their own--equally well expressing their adoration as their
disgust, their embrace of certain images as their rejection of them.

Building on this work, this chapter seeks to do three things: First, I claim
that the modalities of cultural production and exchange are a proper subject
for normative evaluation within a broad range of liberal political theory.
Culture is a social-psychological-cognitive fact of human existence. Ignoring
it, as rights-based and utilitarian versions of liberalism tend to do, disables
political theory from commenting on central characteristics of a society and
its institutional frameworks. Analyzing the attractiveness of any given
political institutional system without considering how it affects cultural
production, and through it the production of the basic frames of meaning
through which individual and collective self-determination functions, leaves a
large hole in our analysis. Liberal political theory needs a theory of culture
and agency that is viscous enough to matter normatively, but loose enough to
give its core foci--the individual and the political system--room to be
effective [[pg 277]] independently, not as a mere expression or extension of
culture. Second, I argue that cultural production in the form of the networked
information economy offers individuals a greater participatory role in making
the culture they occupy, and makes this culture more transparent to its
inhabitants. This descriptive part occupies much of the chapter. Third, I
suggest the relatively straightforward conclusion of the prior two
observations. From the perspective of liberal political theory, the kind of
open, participatory, transparent folk culture that is emerging in the networked
environment is normatively more attractive than was the industrial cultural
production system typified by Hollywood and the recording industry.

A nine-year-old girl searching Google for Barbie will quite quickly find links
to AdiosBarbie.com, to the Barbie Liberation Organization (BLO), and to other,
similarly critical sites interspersed among those dedicated to selling and
playing with the doll. The contested nature of the doll becomes publicly and
everywhere apparent, liberated from the confines of feminist-criticism symposia
and undergraduate courses. This simple Web search represents both of the core
contributions of the networked information economy. First, from the perspective
of the searching girl, it represents a new transparency of cultural symbols.
Second, from the perspective of the participants in AdiosBarbie or the BLO, the
girl's use of their site completes their own quest to participate in making the
cultural meaning of Barbie. The networked information environment provides an
outlet for contrary expression and a medium for shaking what we accept as
cultural baseline assumptions. Its radically decentralized production modes
provide greater freedom to participate effectively in defining the cultural
symbols of our day. These characteristics make the networked environment
attractive from the perspectives of both personal freedom of expression and an
engaged and self-aware political discourse.

We cannot, however, take for granted that the technological capacity to
participate in the cultural conversation, to mix and make our own, will
translate into the freedom to do so. The practices of cultural and
countercultural creation are at the very core of the battle over the
institutional ecology of the digital environment. The tension is perhaps not
new or unique to the Internet, but its salience is now greater. The makers of
the 1970s comic strip Air Pirates already found their comics confiscated when
they portrayed Mickey and Minnie and Donald and Daisy in various compromising
countercultural postures. Now, the ever-increasing scope and expanse [[pg 278]]
of copyright law and associated regulatory mechanisms, on the one hand, and of
individual and collective nonmarket creativity, on the other hand, have
heightened the conflict between cultural freedom and the regulatory framework
on which the industrial cultural production system depends. As Lessig, Jessica
Litman, and Siva Vaidhyanathan have each portrayed elegantly and in detail, the
copyright industries have on many dimensions persuaded both Congress and courts
that individual, nonmarket creativity using the cultural outputs of the
industrial information economy is to be prohibited. As we stand today, freedom
to play with the cultural environment is nonetheless preserved in the teeth of
the legal constraints, because of the high costs of enforcement, on the one
hand, and the ubiquity and low cost of the means to engage in creative cultural
bricolage, on the other hand. These social, institutional, and technical facts
still leave us with quite a bit of unauthorized creative expression. These
facts, however, are contingent and fragile. Chapter 11 outlines in some detail
the long trend toward the creation of ever-stronger legal regulation of
cultural production, and in particular, the enclosure movement that began in
the 1970s and gained steam in the mid-1990s. A series of seemingly discrete
regulatory moves threatens the emerging networked folk culture. Ranging from
judicial interpretations of copyright law to efforts to regulate the hardware
and software of the networked environment, we are seeing a series of efforts to
restrict nonmarket use of twentieth-century cultural materials in order to
preserve the business models of Hollywood and the recording industry. These
regulatory efforts threaten the freedom to participate in twenty-first-century
cultural production, because current creation requires taking and mixing the
twentieth-century cultural materials that make up who we are as culturally
embedded beings. Here, however, I focus on explaining how cultural
participation maps onto the project of liberal political theory, and why the
emerging cultural practices should be seen as attractive within that normative
framework. I leave development of the policy implications to part III.

CULTURAL FREEDOM IN LIBERAL POLITICAL THEORY
............................................

Utilitarian and rights-based liberal political theories have an awkward
relationship to culture. Both major strains of liberal theory make a certain
set of assumptions about the autonomous individuals with which they are
concerned. Individuals are assumed to be rational and knowledgeable, at least
[[pg 279]] about what is good for them. They are conceived of as possessing a
capacity for reason and a set of preferences prior to engagement with others.
Political theory then proceeds to concern itself with political structures that
respect the autonomy of individuals with such characteristics. In the political
domain, this conception of the individual is easiest to see in pluralist
theories, which require institutions for collective decision making that clear
what are treated as already-formed preferences of individuals or voluntary
groupings.

Culture represents a mysterious category for these types of liberal political
theories. It is difficult to specify how it functions in terms readily amenable
to a conception of individuals whose rationality and preferences for their own
good are treated as though they preexist and are independent of society. A
concept of culture requires some commonly held meaning among these individuals.
Even the simplest intuitive conception of what culture might mean would treat
this common frame of meaning as the result of social processes that preexist
any individual, and partially structure what it is that individuals bring to
the table as they negotiate their lives together, in society or in a polity.
Inhabiting a culture is a precondition to any interpretation of what is at
stake in any communicative exchange among individuals. A partly subconscious,
lifelong dynamic social process of becoming and changing as a cultural being is
difficult to fold into a collective decision-making model that focuses on
designing a discursive platform for individuated discrete participants who are
the bearers of political will. It is easier to model respect for an
individual's will when one adopts a view of that will as independent, stable,
and purely internally generated. It is harder to do so when one conceives of
that individual will as already in some unspecified degree rooted in exchange
with others about what an individual is to value and prefer.

Culture has, of course, been incorporated into political theory as a central
part of the critique of liberalism. The politics of culture have been a staple
of critical theory since Marx first wrote that "Religion . . . is the opium of
the people" and that "to call on them to give up their illusions about their
condition is to call on them to give up a condition that requires
illusions."[^98] The twentieth century saw a wide array of critique, from
cultural Marxism to poststructuralism and postmodernism. However, much of
mainstream liberal political theory has chosen to ignore, rather than respond
and adapt to, these critiques. In Political Liberalism, for example, Rawls
acknowledges "the fact" of reasonable pluralism--of groups that persistently
and reasonably hold competing comprehensive doctrines--and aims for political
pluralism as a mode of managing the irreconcilable differences. This leaves the
formation [[pg 280]] of the comprehensive doctrine and the systems of belief
within which it is rendered "reasonable" a black box to liberal theory. This
may be an adequate strategy for analyzing the structure of formal political
institutions at the broadest level of abstraction. However, it disables liberal
political theory from dealing with more fine-grained questions of policy that
act within the black box.

As a practical matter, treating culture as a black box disables a political
theory as a mechanism for diagnosing the actual conditions of life in a society
in terms of its own political values. It does so in precisely the same way that
a formal conception of autonomy disables those who hold it from diagnosing the
conditions of autonomy in practical life. Imagine for a moment that we had
received a revelation that a crude version of Antonio Gramsci's hegemony theory
was perfectly correct as a matter of descriptive sociology. Ruling classes do,
in fact, consciously and successfully manipulate the culture in order to make
the oppressed classes compliant. It would be difficult, then, to continue to
justify holding a position about political institutions, or autonomy, that
treated the question of how culture, generally, or even the narrow subset of
reasonably held comprehensive doctrines like religion, are made, as a black
box. It would be difficult to defend respect for autonomous choices as respect
for an individual's will, if an objective observer could point to a social
process, external to the individual and acting upon him or her, as the cause of
the individual holding that will. It would be difficult to focus one's
political design imperatives on public processes that allow people to express
their beliefs and preferences, argue about them, and ultimately vote on them,
if it is descriptively correct that those beliefs and preferences are
themselves the product of manipulation of some groups by others.

The point is not, of course, that Gramsci was descriptively right or that any
of the broad range of critical theories of culture is correct as a descriptive
matter. It is that liberal theories that ignore culture are rendered incapable
of answering some questions that arise in the real world and have real
implications for individuals and polities. There is a range of sociological,
psychological, or linguistic descriptions that could characterize the culture
of a society as more or less in accord with the concern of liberalism with
individual and collective self-determination. Some such descriptive theory of
culture can provide us with enough purchase on the role of culture to diagnose
the attractiveness of a cultural production system from a politicaltheory
perspective. It does not require that liberal theory abandon individuals [[pg
281]] as the bearers of the claims of political morality. It does not require
that liberal political theory refocus on culture as opposed to formal political
institutions. It does require, however, that liberal theory at least be able to
diagnose different conditions in the practical cultural life of a society as
more or less attractive from the perspective of liberal political theory.

The efforts of deliberative liberal theories to account for culture offer the
most obvious source of such an insight. These political theories have worked to
develop a conception of culture and its relationship to liberalism precisely
because at a minimum, they require mutual intelligibility across individuals,
which cannot adequately be explained without some conception of culture. In
Jurgen Habermas's work, culture plays the role of a basis for mutual
intelligibility. As the basis for "interpersonal intelligibility," we see
culture playing such a role in the work of Bruce Ackerman, who speaks of
acculturation as the necessary condition to liberal dialogue. "Cultural
coherence" is something he sees children requiring as a precondition to
becoming liberal citizens: it allows them to "Talk" and defend their claims in
terms without which there can be no liberal conversation.[^99] Michael Walzer
argues that, "in matters of morality, argument is simply the appeal to common
meanings."[^100] Will Kymlicka claims that for individual autonomy, "freedom
involves making choices amongst various options, and our societal culture not
only provides these options, but makes them meaningful to us." A societal
culture, in turn, is a "shared vocabulary of tradition and convention" that is
"embodied in social life[,] institutionally embodied--in schools, media,
economy, government, etc."[^101] Common meanings in all these frameworks must
mean more than simple comprehension of the words of another. It provides a
common baseline, which is not itself at that moment the subject of conversation
or inquiry, but forms the background on which conversation and inquiry take
place. Habermas's definition of lifeworld as "background knowledge," for
example, is a crisp rendering of culture in this role:

  the lifeworld embraces us as an unmediated certainty, out of whose immediate
  proximity we live and speak. This all-penetrating, yet latent and unnoticed
  presence of the background of communicative action can be described as a more
  intense, yet deficient, form of knowledge and ability. To begin with, we make
  use of this knowledge involuntarily, without reflectively knowing that we
  possess it at all. What enables background knowledge to acquire absolute
  certainty in this way, and even augments its epistemic quality from a
  subjective standpoint, is precisely the property that robs it of a
  constitutive feature of knowledge: we make use of [[pg 282]] such knowledge
  without the awareness that it could be false. Insofar as all knowledge is
  fallible and is known to be such, background knowledge does not represent
  knowledge at all, in a strict sense. As background knowledge, it lacks the
  possibility of being challenged, that is, of being raised to the level of
  criticizable validity claims. One can do this only by converting it from a
  resource into a topic of discussion, at which point--just when it is
  thematized--it no longer functions as a lifeworld background but rather
  disintegrates in its background modality.[^102]

In other words, our understanding of meaning--how we are, how others are, what
ought to be--are in some significant portion unexamined assumptions that we
share with others, and to which we appeal as we engage in communication with
them. This does not mean that culture is a version of false consciousness. It
does not mean that background knowledge cannot be examined rationally or
otherwise undermines the very possibility or coherence of a liberal individual
or polity. It does mean, however, that at any given time, in any given context,
there will be some set of historically contingent beliefs, attitudes, and
social and psychological conditions that will in the normal course remain
unexamined, and form the unexamined foundation of conversation. Culture is
revisable through critical examination, at which point it ceases to be "common
knowledge" and becomes a contested assumption. Nevertheless, some body of
unexamined common knowledge is necessary for us to have an intelligible
conversation that does not constantly go around in circles, challenging the
assumptions on whichever conversational move is made.

Culture, in this framework, is not destiny. It does not predetermine who we
are, or what we can become or do, nor is it a fixed artifact. It is the product
of a dynamic process of engagement among those who make up a culture. It is a
frame of meaning from within which we must inevitably function and speak to
each other, and whose terms, constraints, and affordances we always negotiate.
There is no point outside of culture from which to do otherwise. An old Yiddish
folktale tells of a naïve rabbi who, for safekeeping, put a ten-ruble note
inside his copy of the Torah, at the page of the commandment, "thou shalt not
steal." That same night, a thief stole into the rabbi's home, took the
ten-ruble note, and left a five-ruble note in its place, at the page of the
commandment, "thou shalt love thy neighbor as thyself." The rabbi and the thief
share a common cultural framework (as do we, across the cultural divide),
through which their various actions can be understood; indeed, without which
their actions would be unintelligible. [[pg 283]] The story offers a theory of
culture, power, and freedom that is more congenial to liberal political theory
than critical theories, and yet provides a conception of the role of culture in
human relations that provides enough friction, or viscosity, to allow meaning
making in culture to play a role in the core concerns of liberal political
theory. Their actions are part strategic and part communicative--that is to
say, to some extent they seek to force an outcome, and to some extent they seek
to engage the other in a conversation in order to achieve a commonly accepted
outcome. The rabbi places the ten-ruble note in the Bible in order to impress
upon the putative thief that he should leave the money where it is. He cannot
exert force on the thief by locking the money up in a safe because he does not
own one. Instead, he calls upon a shared understanding and a claim of authority
within the governed society to persuade the thief. The thief, to the contrary,
could have physically taken the ten-ruble note without replacing it, but he
does not. He engages the rabbi in the same conversation. In part, he justifies
his claim to five rubles. In part, he resists the authority of the rabbi--not
by rejecting the culture that renders the rabbi a privileged expert, but by
playing the game of Talmudic disputation. There is a price, though, for
participating in the conversation. The thief must leave the five-ruble note; he
cannot take the whole amount.

In this story, culture is open to interpretation and manipulation, but not
infinitely so. Some moves may be valid within a cultural framework and alter
it; others simply will not. The practical force of culture, on the other hand,
is not brute force. It cannot force an outcome, but it can exert a real pull on
the range of behaviors that people will seriously consider undertaking, both as
individuals and as polities. The storyteller relies on the listener's cultural
understanding about the limits of argument, or communicative action. The story
exploits the open texture of culture, and the listener's shared cultural belief
that stealing is an act of force, not a claim of justice; that those who engage
in it do not conceive of themselves as engaged in legitimate defensible acts.
The rabbi was naïve to begin with, but the thief 's disputation is
inconsistent with our sense of the nature of the act of stealing in exactly the
same way that the rabbi's was, but inversely. The thief, the rabbi, and the
storyteller participate in making, and altering, the meaning of the
commandments.

Culture changes through the actions of individuals in the cultural context.
Beliefs, claims, communicative moves that have one meaning before an
intervention [[pg 284]] may begin to shift in their meaning as a result of
other moves, made by other participants in the same cultural milieu. One need
not adopt any given fully fledged meme theory of culture--like Richard
Dawkins's, or Balkin's political adaptation of it as a theory of ideology--to
accept that culture is created through communication among human beings, that
it exerts some force on what they can say to each other and how it will be
received, and that the parameters of a culture as a platform for making meaning
in interaction among human beings change over time with use. How cultural moves
are made, by whom, and with what degree of perfect replication or subtle (and
not so subtle) change, become important elements in determining the rate and
direction of cultural change. These changes, over time, alter the platform
individuals must use to make sense of the world they occupy, and for
participants in conversation to be able to make intelligible communications to
each other about the world they share and where it can and ought to go. Culture
so understood is a social fact about particular sets of human beings in
historical context. As a social fact, it constrains and facilitates the
development, expression, and questioning of beliefs and positions. Whether and
how Darwinism should be taught in public schools, for example, is a live
political question in vast regions of the United States, and is played out as a
debate over whether evolution is "merely a theory." Whether racial segregation
should be practiced in these schools is no longer a viable or even conceivable
political agenda. The difference between Darwinism and the undesirability of
racial segregation is not that one is scientifically true and the other is not.
The difference is that the former is not part of the "common knowledge" of a
large section of society, whereas the latter is, in a way that no longer
requires proof by detailed sociological and psychological studies of the type
cited by the Supreme Court in support of its holding, in /Brown v. Board of
Education/, that segregation in education was inherently unequal.

If culture is indeed part of how we form a shared sense of unexamined common
knowledge, it plays a significant role in framing the meaning of the state of
the world, the availability and desirability of choices, and the organization
of discourse. The question of how culture is framed (and through it, meaning
and the baseline conversational moves) then becomes germane to a liberal
political theory. Between the Scylla of a fixed culture (with hierarchical,
concentrated power to control its development and interpretation) and the
Charybdis of a perfectly open culture (where nothing [[pg 285]] is fixed and
everything is up for grabs, offering no anchor for meaning and mutual
intelligibility), there is a wide range of practical social and economic
arrangements around the production and use of culture. In evaluating the
attractiveness of various arrangements from the perspective of liberal theory,
we come to an already familiar trade-off, and an already familiar answer. As in
the case of autonomy and political discourse, a greater ability of individuals
to participate in the creation of the cultural meaning of the world they occupy
is attractive from the perspective of the liberal commitments to individual
freedom and democratic participation. As in both areas that we have already
considered, a Babel objection appears: Too much freedom to challenge and remake
our own cultural environment will lead to a lack of shared meaning. As in those
two cases, however, the fears of too active a community of meaning making are
likely exaggerated. Loosening the dominant power of Hollywood and television
over contemporary culture is likely to represent an incremental improvement,
from the perspective of liberal political commitments. It will lead to a
greater transparency of culture, and therefore a greater capacity for critical
reflection, and it will provide more opportunities for participating in the
creation of culture, for interpolating individual glosses on it, and for
creating shared variations on common themes.

THE TRANSPARENCY OF INTERNET CULTURE
....................................

If you run a search for "Barbie" on three separate search engines--Google,
Overture, and Yahoo!--you will get quite different results. Table 8.1 lists
these results in the order in which they appear on each search engine. Overture
is a search engine that sells placement to the parties who are being searched.
Hits on this search engine are therefore ranked based on whoever paid Overture
the most in order to be placed highly in response to a query. On this list,
none of the top ten results represent anything other than sales-related Barbie
sites. Critical sites begin to appear only around the twentyfifth result,
presumably after all paying clients have been served. Google, as we already
know, uses a radically decentralized mechanism for assigning relevance. It
counts how many sites on the Web have linked to a particular site that has the
search term in it, and ranks the search results by placing a site with a high
number of incoming links above a site with a low number of incoming links. In
effect, each Web site publisher "votes" for a site's [[pg 286]] [[pg 287]]
relevance by linking to it, and Google aggregates these votes and renders them
on their results page as higher ranking. The little girl who searches for
Barbie on Google will encounter a culturally contested figure. The same girl,
searching on Overture, will encounter a commodity toy. In each case, the
underlying efforts of Mattel, the producer of Barbie, have not changed. What is
different is that in an environment where relevance is measured in nonmarket
action--placing a link to a Web site because you deem it relevant to whatever
you are doing with your Web site--as opposed to in dollars, Barbie has become a
more transparent cultural object. It is easier for the little girl to see that
the doll is not only a toy, not only a symbol of beauty and glamour, but also a
symbol of how norms of female beauty in our society can be oppressive to women
and girls. The transparency does not force the girl to choose one meaning of
Barbie or another. It does, however, render transparent that Barbie can have
multiple meanings and that choosing meanings is a matter of political concern
for some set of people who coinhabit this culture. Yahoo! occupies something of
a middle ground--its algorithm does link to two of the critical sites among the
top ten, and within the top twenty, identifies most of the sites that appear on
Google's top ten that are not related to sales or promotion.


----------------------------------------
*Table 8.1: Results for "Barbie" - Google versus Overture and Yahoo!*

Google┆Overture┆Yahoo!
Barbie.com (Mattel's site)┆Barbie at Amazon.com┆Barbie.com
AdiosBarbie.com: A Body Image for Every Body (site created by women critical of Barbie's projected body image)┆Barbie on Sale at KBToys┆Barbie Collector
Barbie Bazar magazine (Barbie collectible news and Information)┆Target.com: Barbies┆My Scene.com
If You Were a Barbie, Which Messed Up Version Would You Be?┆Barbie: Best prices and selection (bizrate.com)┆EverythingGirl.com
Visible Barbie Project (macabre images of Barbie sliced as though in a science project)┆Barbies, New and Pre-owned at NetDoll┆Barbie History (fan-type history, mostly when various dolls were released)
Barbie: The Image of Us All (1995 undergraduate paper about Barbie's cultural history)┆Barbies - compare prices (nextag.com)┆Mattel, Inc.
Audigraph.free.fr (Barbie and Ken sex animation)┆Barbie Toys (complete line of Barbie electronics online)┆Spatula Jackson's Barbies (picutes of Barbie as various counter-cultural images)
Suicide bomber Barbie (Barbie with explosives strapped to waist)┆Barbie Party supplies┆Barbie! (fan site)
Barbies (Barbie dressed and painted as counter-cultural images)┆Barbie and her accessories online┆The Distorted Barbie

A similar phenomenon repeats itself in the context of explicit efforts to
define Barbie--encyclopedias. There are, as of this writing, six
generalinterest online encyclopedias that are reasonably accessible on the
Internet-- that is to say, can be found with reasonable ease by looking at
major search engines, sites that focus on education and parenting, and similar
techniques. Five are commercial, and one is a quintessential commons-based
peerproduction project-- /Wikipedia/. Of the five commercial encyclopedias,
only one is available at no charge, the Columbia Encyclopedia, which is
packaged in two primary forms--as encyclopedia.com and as part of
Bartleby.com.[^103] The other four--Britannica, Microsoft's Encarta, the World
Book, and Grolier's Online Encyclopedia--charge various subscription rates that
range around fifty to sixty dollars a year. The Columbia Encyclopedia includes
no reference to Barbie, the doll. The World Book has no "Barbie" entry, but
does include a reference to Barbie as part of a fairly substantial article on
"Dolls." The only information that is given is that the doll was introduced in
1959, that she has a large wardrobe, and in a different place, that darkskinned
Barbies were introduced in the 1980s. The article concludes with a guide of
about three hundred words to good doll-collecting practices. Microsoft's [[pg
288]] Encarta also includes Barbie in the article on "Doll," but provides a
brief separate definition as well, which replicates the World Book information
in slightly different form: 1959, large wardrobe, and introduction of
dark-skinned Barbies. The online photograph available with the definition is of
a brown-skinned, black-haired Barbie. Grolier's Online's major generalpurpose
encyclopedia, Americana, also has no entry for Barbie, but makes reference to
the doll as part of the article on dolls. Barbie is described as a
revolutionary new doll, made to resemble a teenage fashion model as part of a
trend to realism in dolls. Grolier's Online does, however, include a more
specialized American Studies encyclopedia that has an article on Barbie. That
article heavily emphasizes the number of dolls sold and their value, provides
some description of the chronological history of the doll, and makes opaque
references to Barbie's physique and her emphasis on consumption. While the
encyclopedia includes bibliographic references to critical works about Barbie,
the textual references to cultural critique or problems she raises are very
slight and quite oblique.

Only two encyclopedias focus explicitly on Barbie's cultural meaning:
Britannica and /Wikipedia/. The Britannica entry was written by M. G. Lord, a
professional journalist who authored a book entitled Forever Barbie: The
Unauthorized Biography of a Real Doll. It is a tightly written piece that
underscores the critique of Barbie, both on body dimensions and its
relationship to the body image of girls, and excessive consumerism. It also,
however, makes clear the fact that Barbie was the first doll to give girls a
play image that was not focused on nurturing and family roles, but was an
independent, professional adult: playing roles such as airline pilot,
astronaut, or presidential candidate. The article also provides brief
references to the role of Barbie in a global market economy--its manufacture
outside the United States, despite its marketing as an American cultural icon,
and its manufacturer's early adoption of direct-to-children marketing.
/Wikipedia/ provides more or less all the information provided in the
Britannica definition, including a reference to Lord's own book, and adds
substantially more material from within Barbie lore itself and a detailed time
line of the doll's history. It has a strong emphasis on the body image
controversy, and emphasizes both the critique that Barbie encourages girls to
focus on shallow consumption of fashion accessories, and that she represents an
unattainable lifestyle for most girls who play with her. The very first version
of the definition, posted January 3, 2003, included only a brief reference to a
change in Barbie's waistline as a result of efforts by parents and anorexia
groups [[pg 289]] concerned with the doll's impact on girls' nutrition. This
remained the only reference to the critique of Barbie until December 15, 2003,
when a user who was not logged in introduced a fairly roughly written section
that emphasized both the body image concerns and the consumerism concerns with
Barbie. During the same day, a number of regular contributors (that is, users
with log-in names and their own talk pages) edited the new section and improved
its language and flow, but kept the basic concepts intact. Three weeks later,
on January 5, 2004, another regular user rewrote the section, reorganized the
paragraphs so that the critique of Barbie's emphasis on high consumption was
separated from the emphasis on Barbie's body dimensions, and also separated and
clarified the qualifying claims that Barbie's independence and professional
outfits may have had positive effects on girls' perception of possible life
plans. This contributor also introduced a reference to the fact that the term
"Barbie" is often used to denote a shallow or silly girl or woman. After that,
with a change three weeks later from describing Barbie as available for most of
her life only as "white Anglo-Saxon (and probably protestant)" to "white woman
of apparently European descent" this part of the definition stabilized. As this
description aims to make clear, /Wikipedia/ makes the history of the evolution
of the article entirely transparent. The software platform allows any reader to
look at prior versions of the definition, to compare specific versions, and to
read the "talk" pages-- the pages where the participants discuss their
definition and their thoughts about it.

The relative emphasis of Google and /Wikipedia/, on the one hand, and Overture,
Yahoo!, and the commercial encyclopedias other than Britannica, on the other
hand, is emblematic of a basic difference between markets and social
conversations with regard to culture. If we focus on the role of culture as
"common knowledge" or background knowledge, its relationship to the market--at
least for theoretical economists--is exogenous. It can be taken as given and
treated as "taste." In more practical business environments, culture is indeed
a source of taste and demand, but it is not taken as exogenous. Culture,
symbolism, and meaning, as they are tied with marketbased goods, become a major
focus of advertising and of demand management. No one who has been exposed to
the advertising campaigns of Coca-Cola, Nike, or Apple Computers, as well as
practically to any one of a broad range of advertising campaigns over the past
few decades, can fail to see that these are not primarily a communication about
the material characteristics or qualities of the products or services sold by
the advertisers. [[pg 290]]

They are about meaning. These campaigns try to invest the act of buying their
products or services with a cultural meaning that they cultivate, manipulate,
and try to generalize in the practices of the society in which they are
advertising, precisely in order to shape taste. They offer an opportunity to
generate rents, because the consumer has to have this company's shoe rather
than that one, because that particular shoe makes the customer this kind of
person rather than that kind--cool rather than stuffy, sophisticated rather
than common. Neither the theoretical economists nor the marketing executives
have any interest in rendering culture transparent or writable. Whether one
treats culture as exogenous or as a domain for limiting the elasticity of
demand for one's particular product, there is no impetus to make it easier for
consumers to see through the cultural symbols, debate their significance, or
make them their own. If there is business reason to do anything about culture,
it is to try to shape the cultural meaning of an object or practice, in order
to shape the demand for it, while keeping the role of culture hidden and
assuring control over the careful cultural choreography of the symbols attached
to the company. Indeed, in 1995, the U.S. Congress enacted a new kind of
trademark law, the Federal Antidilution Act, which for the first time
disconnects trademark protection from protecting consumers from confusion by
knockoffs. The Antidilution Act of 1995 gives the owner of any famous mark--and
only famous marks--protection from any use that dilutes the meaning that the
brand owner has attached to its own mark. It can be entirely clear to consumers
that a particular use does not come from the owner of the brand, and still, the
owner has a right to prevent this use. While there is some constitutional
free-speech protection for criticism, there is also a basic change in the
understanding of trademark law-- from a consumer protection law intended to
assure that consumers can rely on the consistency of goods marked in a certain
way, to a property right in controlling the meaning of symbols a company has
successfully cultivated so that they are, in fact, famous. This legal change
marks a major shift in the understanding of the role of law in assigning
control for cultural meaning generated by market actors.

Unlike market production of culture, meaning making as a social, nonmarket
practice has no similar systematic reason to accept meaning as it comes.
Certainly, some social relations do. When girls play with dolls, collect them,
or exhibit them, they are rarely engaged in reflection on the meaning of the
dolls, just as fans of Scarlett O'Hara, of which a brief Internet search
suggests there are many, are not usually engaged in critique of Gone with the
[[pg 291]] Wind as much as in replication and adoption of its romantic themes.
Plainly, however, some conversations we have with each other are about who we
are, how we came to be who we are, and whether we view the answers we find to
these questions as attractive or not. In other words, some social interactions
do have room for examining culture as well as inhabiting it, for considering
background knowledge for what it is, rather than taking it as a given input
into the shape of demand or using it as a medium for managing meaning and
demand. People often engage in conversations with each other precisely to
understand themselves in the world, their relationship to others, and what
makes them like and unlike those others. One major domain in which this
formation of self- and group identity occurs is the adoption or rejection of,
and inquiry into, cultural symbols and sources of meaning that will make a
group cohere or splinter; that will make people like or unlike each other.

The distinction I draw here between market-based and nonmarket-based activities
is purposefully overstated to clarify the basic structural differences between
these two modes of organizing communications and the degree of transparency of
culture they foster. As even the very simple story of how Barbie is defined in
Internet communications demonstrates, practices are not usually as cleanly
divided. Like the role of the elite newspapers in providing political coverage,
discussed in chapter 6, some market-based efforts do provide transparency;
indeed, their very market rationale pushes them to engage in a systematic
effort to provide transparency. Google's strategy from the start has been to
assume that what individuals are interested in is a reflection of what other
individuals--who are interested in roughly the same area, but spend more time
on it, that is, Web page authors--think is worthwhile. The company built its
business model around rendering transparent what people and organizations that
make their information available freely consider relevant. Occasionally, Google
has had to deal with "search engine optimizers," who have advised companies on
how to game its search engine to achieve a high ranking. Google has fought
these optimizers; sometimes by outright blocking access to traffic that
originates with them. In these cases, we see a technical competition between
firms--the optimizers--whose interest is in capturing attention based on the
interests of those who pay them, and a firm, Google, whose strategic choice is
to render the distributed judgments of relevance on the Web more or less
faithfully. There, the market incentive actually drives Google's investment
affirmatively toward transparency. However, the market decision must be
strategic, not tactical, for this [[pg 292]] to be the case. Fear of litigation
has, for example, caused Google to bury links that threatened it with
liability. The most prominent of these cases occurred when the Church of
Scientology threatened to sue Google over presenting links to www.xenu.net, a
site dedicated to criticizing scientology. Google initially removed the link.
However, its strategic interest was brought to the fore by widespread criticism
of its decision on the Internet, and the firm relented. A search for
"Scientology" as of this writing reveals a wide range of sites, many critical
of scientology, and xenu.net is the second link. A search for "scientology
Google" will reveal many stories, not quite flattering either to Google or to
the Church of Scientology, as the top links. We see similar diversity among the
encyclopedias. Britannica offered as clear a presentation of the controversy
over Barbie as /Wikipedia/. Britannica has built its reputation and business
model on delivery of the knowledge and opinions of those in positions to claim
authority in the name of high culture professional competence, and delivering
that perspective to those who buy the encyclopedia precisely to gain access to
that kind of knowledge base, judgment, and formal credibility. In both cases,
the long-term business model of the companies calls for reflecting the views
and insights of agents who are not themselves thoroughly within the
market--whether they are academics who write articles for Britannica, or the
many and diverse Web page owners on the Internet. In both cases, these business
models lead to a much more transparent cultural representation than what
Hollywood or Madison Avenue produce. Just as not all market-based organizations
render culture opaque, not all nonmarket or social-relations-based
conversations aim to explore and expose cultural assumptions. Social
conversations can indeed be among the most highly deferential to cultural
assumptions, and can repress critique more effectively and completely than
market-based conversations. Whether in communities of unquestioning religious
devotion or those that enforce strict egalitarian political correctness, we
commonly see, in societies both traditional and contemporary, significant
social pressures against challenging background cultural assumptions within
social conversations. We have, for example, always had more cultural
experimentation and fermentation in cities, where social ties are looser and
communities can exercise less social control over questioning minds and
conversation. Ubiquitous Internet communications expand something of the
freedom of city parks and streets, but also the freedom of cafes and
bars--commercial platforms for social inter? action--so that it is available
everywhere.

The claim I make here, as elsewhere throughout this book, is not that [[pg
293]] nonmarket production will, in fact, generally displace market production,
or that such displacement is necessary to achieve the improvement in the degree
of participation in cultural production and legibility. My claim is that the
emergence of a substantial nonmarket alternative path for cultural conversation
increases the degrees of freedom available to individuals and groups to engage
in cultural production and exchange, and that doing so increases the
transparency of culture to its inhabitants. It is a claim tied to the
particular technological moment and its particular locus of occurrence--our
networked communications environment. It is based on the fact that it is
displacing the particular industrial form of information and cultural
production of the twentieth century, with its heavy emphasis on consumption in
mass markets. In this context, the emergence of a substantial sector of
nonmarket production, and of peer production, or the emergence of individuals
acting cooperatively as a major new source of defining widely transmissible
statements and conversations about the meaning of the culture we share, makes
culture substantially more transparent and available for reflection, and
therefore for revision.

Two other dimensions are made very clear by the /Wikipedia/ example. The first
is the degree of self-consciousness that is feasible with open,
conversation-based definition of culture that is itself rendered more
transparent. The second is the degree to which the culture is writable, the
degree to which individuals can participate in mixing and matching and making
their own emphases, for themselves and for others, on the existing set of
symbols. Fisher, for example, has used the term "semiotic democracy" to
describe the potential embodied in the emerging openness of Internet culture to
participation by users. The term originates from Fiske's Television Culture as
a counterpoint to the claim that television was actually a purely one-way
medium that only enacted culture on viewers. Instead, Fiske claimed that
viewers resist these meanings, put them in their own contexts, use them in
various ways, and subvert them to make their own meaning. However, much of this
resistance is unstated, some of it unself-conscious. There are the acts of
reception and interpretation, or of using images and sentences in different
contexts of life than those depicted in the television program; but these acts
are local, enacted within small-scale local cultures, and are not the result of
a self-conscious conversation among users of the culture about its limits, its
meanings, and its subversions. One of the phenomena we are beginning to observe
on the Internet is an emerging culture of conversation about culture, which is
both self-conscious and informed by linking or quoting from specific [[pg 294]]
reference points. The /Wikipedia/ development of the definition of Barbie, its
history, and the availability of a talk page alongside it for discussion about
the definition, are an extreme version of self-conscious discussion about
culture. The basic tools enabled by the Internet--cutting, pasting, rendering,
annotating, and commenting--make active utilization and conscious discussion of
cultural symbols and artifacts easier to create, sustain, and read more
generally.

The flexibility with which cultural artifacts--meaning-carrying objects-- can
be rendered, preserved, and surrounded by different context and discussion
makes it easy for anyone, anywhere, to make a self-conscious statement about
culture. They enable what Balkin has called "glomming on"-- taking that which
is common cultural representation and reworking it into your own move in a
cultural conversation.[^104] The low cost of storage, and the ubiquitous
possibility of connecting from any connection location to any storage space
make any such statement persistent and available to others. The ease of
commenting, linking, and writing to other locations of statements, in turn,
increases the possibility of response and counterresponse. These conversations
can then be found by others, and at least read if not contributed to. In other
words, as with other, purposeful peer-produced projects like /Wikipedia/, the
basic characteristics of the Internet in general and the World Wide Web in
particular have made it possible for anyone, anywhere, for any reason to begin
to contribute to an accretion of conversation about well-defined cultural
objects or about cultural trends and characteristics generally. These
conversations can persist across time and exist across distance, and are
available for both active participation and passive reading by many people in
many places. The result is, as we are already seeing it, the emergence of
widely accessible, self-conscious conversation about the meaning of
contemporary culture by those who inhabit it. This "writability" is also the
second characteristic that the /Wikipedia/ definition process makes very clear,
and the second major change brought about by the networked information economy
in the digital environment.

THE PLASTICITY OF INTERNET CULTURE: THE FUTURE OF HIGH-PRODUCTION-VALUE FOLK
CULTURE
..............................................................................

I have already described the phenomena of blogs, of individually created movies
like /The Jedi Saga/, and of Second Life, the game platform where [[pg 295]]
users have made all the story lines and all the objects, while the commercial
provider created the tools and hosts the platform for their collective
storytelling. We are seeing the broad emergence of business models that are
aimed precisely at providing users with the tools to write, compose, film, and
mix existing materials, and to publish, play, render, and distribute what we
have made to others, everywhere. Blogger, for example, provides simple tools
for online publication of written materials. Apple Computer offers a product
called GarageBand, that lets users compose and play their own music. It
includes a large library of prerecorded building blocks--different instruments,
riffs, loops--and an interface that allows the user to mix, match, record and
add their own, and produce their own musical composition and play it.
Video-editing utilities, coupled with the easy malleability of digital video,
enable people to make films--whether about their own lives or, as in the case
of /The Jedi Saga/, of fantasies. The emerging phenomenon of Machinima--short
movies that are made using game platforms--underscores how digital platforms
can also become tools for creation in unintended ways. Creators use the 3-D
rendering capabilities of an existing game, but use the game to stage a movie
scene or video presentation, which they record as it is played out. This
recording is then distributed on the Internet as a standalone short film. While
many of these are still crude, the basic possibilities they present as modes of
making movies is significant. Needless to say, not everyone is Mozart. Not
everyone is even a reasonably talented musician, author, or filmmaker. Much of
what can be and is done is not wildly creative, and much of it takes the form
of Balkin's "glomming on": That is, users take existing popular culture, or
otherwise professionally created culture, and perform it, sometimes with an
effort toward fidelity to the professionals, but often with their own twists,
making it their own in an immediate and unmediated way. However, just as
learning how to read music and play an instrument can make one a
better-informed listener, so too a ubiquitous practice of making cultural
artifacts of all forms enables individuals in society to be better readers,
listeners, and viewers of professionally produced culture, as well as
contributors of our own statements into this mix of collective culture.

People have always created their own culture. Popular music did not begin with
Elvis. There has always been a folk culture--of music, storytelling, and
theater. What happened over the course of the twentieth century in advanced
economies, and to a lesser extent but still substantially around the globe, is
the displacement of folk culture by commercially produced mass popular [[pg
296]] culture. The role of the individuals and communities vis-a-vis cultural
arti` facts changed, from coproducers and replicators to passive consumers. The
time frame where elders might tell stories, children might put on a show for
the adults, or those gathered might sing songs came to be occupied by
background music, from the radio or phonograph, or by television. We came to
assume a certain level of "production values"--quality of sound and image,
quality of rendering and staging--that are unattainable with our crude means
and our relatively untrained voices or use of instruments. Not only time for
local popular creation was displaced, therefore, but also a sense of what
counted as engaging, delightful articulation of culture. In a now-classic
article from 1937, "The Work of Art in the Age of Mechanical Reproduction,"
Walter Benjamin authored one of the only instances of critical theory that took
an optimistic view of the emergence of popular culture in the twentieth century
as a potentially liberating turn. Benjamin's core claim was that with
mechanical replication of art, the "aura" that used to attach to single works
of art is dissipated. Benjamin saw this aura of unique works of art as
reinforcing a distance between the masses and the representations of culture,
reinforcing the perception of their weakness and distance from truly great
things. He saw in mechanical reproducibility the possibility of bringing copies
down to earth, to the hands of the masses, and reversing the sense of distance
and relative weakness of the mass culture. What Benjamin did not yet see were
the ways in which mechanical reproduction would insert a different kind of
barrier between many dispersed individuals and the capacity to make culture.
The barrier of production costs, production values, and the star system that
came along with them, replaced the iconic role of the unique work of art with
new, but equally high barriers to participation in making culture. It is
precisely those barriers that the capabilities provided by digital media begin
to erode. It is becoming feasible for users to cut and paste, "glom on," to
existing cultural materials; to implement their intuitions, tastes, and
expressions through media that render them with newly acceptable degrees of
technical quality, and to distribute them among others, both near and far. As
Hollywood begins to use more computer-generated special effects, but more
important, whole films--2004 alone saw major releases like Shrek 2, The
Incredibles, and Polar Express--and as the quality of widely available
image-generation software and hardware improves, the production value gap
between individual users or collections of users and the
commercial-professional studios will decrease. As this book is completed in
early 2005, nothing makes clearer the value of retelling basic stories through
[[pg 297]] the prism of contemporary witty criticism of prevailing culture than
do Shrek 2 and The Incredibles, and, equally, nothing exposes the limits of
purely technical, movie-star-centered quality than the lifelessness of Polar
Express. As online games like Second Life provide users with new tools and
platforms to tell and retell their own stories, or their own versions of
well-trodden paths, as digital multimedia tools do the same for individuals
outside of the collaborative storytelling platforms, we can begin to see a
reemergence of folk stories and songs as widespread cultural practices. And as
network connections become ubiquitous, and search engines and filters improve,
we can begin to see this folk culture emerging to play a substantially greater
role in the production of our cultural environment.

A PARTICIPATORY CULTURE: TOWARD POLICY
......................................

Culture is too broad a concept to suggest an all-encompassing theory centered
around technology in general or the Internet in particular. My focus is
therefore much narrower, along two dimensions. First, I am concerned with
thinking about the role of culture to human interactions that can be understood
in terms of basic liberal political commitments--that is to say, a concern for
the degree of freedom individuals have to form and pursue a life plan, and the
degree of participation they can exercise in debating and determining
collective action. Second, my claim is focused on the relative attractiveness
of the twentieth-century industrial model of cultural production and what
appears to be emerging as the networked model in the early twenty-first
century, rather than on the relationship of the latter to some theoretically
defined ideal culture.

A liberal political theory cannot wish away the role of culture in structuring
human events. We engage in wide ranges of social practices of making and
exchanging symbols that are concerned with how our life is and how it might be,
with which paths are valuable for us as individuals to pursue and which are
not, and with what objectives we as collective communities-- from the local to
the global--ought to pursue. This unstructured, ubiquitous conversation is
centrally concerned with things that a liberal political system speaks to, but
it is not amenable to anything like an institutionalized process that could
render its results "legitimate." Culture operates as a set of background
assumptions and common knowledge that structure our understanding of the state
of the world and the range of possible actions and outcomes open to us
individually and collectively. It constrains the range of conversational [[pg
298]] moves open to us to consider what we are doing and how we might act
differently. In these regards, it is a source of power in the critical-theory
sense--a source that exerts real limits on what we can do and how we can be. As
a source of power, it is not a natural force that stands apart from human
endeavor and is therefore a fact that is not itself amenable to political
evaluation. As we see well in the efforts of parents and teachers, advertising
agencies and propaganda departments, culture is manipulable, manageable, and a
direct locus of intentional action aimed precisely at harnessing its force as a
way of controlling the lives of those who inhabit it. At the same time,
however, culture is not the barrel of a gun or the chains of a dungeon. There
are limits on the degree to which culture can actually control those who
inhabit it. Those degrees depend to a great extent on the relative difficulty
or ease of seeing through culture, of talking about it with others, and of
seeing other alternatives or other ways of symbolizing the possible and the
desirable.

Understanding that culture is a matter of political concern even within a
liberal framework does not, however, translate into an agenda of intervention
in the cultural sphere as an extension of legitimate political decision making.
Cultural discourse is systematically not amenable to formal regulation,
management, or direction from the political system. First, participation in
cultural discourse is intimately tied to individual self-expression, and its
regulation would therefore require levels of intrusion in individual autonomy
that would render any benefits in terms of a participatory political system
Pyrrhic indeed. Second, culture is much more intricately woven into the fabric
of everyday life than political processes and debates. It is language-- the
basic framework within which we can comprehend anything, and through which we
do so everywhere. To regulate culture is to regulate our very comprehension of
the world we occupy. Third, therefore, culture infuses our thoughts at a wide
range of levels of consciousness. Regulating culture, or intervening in its
creation and direction, would entail self-conscious action to affect citizens
at a subconscious or weakly conscious level. Fourth, and finally, there is no
Archimedean point outside of culture on which to stand and decide--let us pour
a little bit more of this kind of image or that, so that we achieve a better
consciousness, one that better fits even our most just and legitimately
arrived-at political determinations.

A systematic commitment to avoid direct intervention in cultural exchange does
not leave us with nothing to do or say about culture, and about law or policy
as it relates to it. What we have is the capacity and need [[pg 299]] to
observe a cultural production and exchange system and to assure that it is as
unconstraining and free from manipulation as possible. We must diagnose what
makes a culture more or less opaque to its inhabitants; what makes it more or
less liable to be strictly constraining of the conversations that rely on it;
and what makes the possibility of many and diverse sources and forms of
cultural intervention more or less likely. On the background of this project, I
suggest that the emergence of Internet culture is an attractive development
from the perspective of liberal political theory. This is so both because of
the technical characteristics of digital objects and computer network
communications, and because of the emerging industrial structure of the
networked information economy--typified by the increased salience of nonmarket
production in general and of individual production, alone or in concert with
others, in particular. The openness of digital networks allows for a much wider
range of perspectives on any particular symbol or range of symbols to be
visible for anyone, everywhere. The cross section of views that makes it easy
to see that Barbie is a contested symbol makes it possible more generally to
observe very different cultural forms and perspectives for any individual. This
transparency of background unstated assumptions and common knowledge is the
beginning of self-reflection and the capacity to break out of given molds.
Greater transparency is also a necessary element in, and a consequence of,
collaborative action, as various participants either explicitly, or through
negotiating the divergence of their nonexplicit different perspectives, come to
a clearer statement of their assumptions, so that these move from the
background to the fore, and become more amenable to examination and revision.
The plasticity of digital objects, in turn, improves the degree to which
individuals can begin to produce a new folk culture, one that already builds on
the twentieth-century culture that was highly unavailable for folk retelling
and re-creation. This plasticity, and the practices of writing your own
culture, then feed back into the transparency, both because the practice of
making one's own music, movie, or essay makes one a more self-conscious user of
the cultural artifacts of others, and because in retelling anew known stories,
we again come to see what the originals were about and how they do, or do not,
fit our own sense of how things are and how they ought to be. There is emerging
a broad practice of learning by doing that makes the entire society more
effective readers and writers of their own culture.

By comparison to the highly choreographed cultural production system of the
industrial information economy, the emergence of a new folk culture [[pg 300]]
and of a wider practice of active personal engagement in the telling and
retelling of basic cultural themes and emerging concerns and attachments offers
new avenues for freedom. It makes culture more participatory, and renders it
more legible to all its inhabitants. The basic structuring force of culture is
not eliminated, of course. The notion of floating monads disconnected from a
culture is illusory. Indeed, it is undesirable. However, the framework that
culture offers us, the language that makes it possible for us to make
statements and incorporate the statements of others in the daily social
conversation that pervades life, is one that is more amenable to our own
remaking. We become more sophisticated users of this framework, more
self-conscious about it, and have a greater capacity to recognize, challenge,
and change that which we find oppressive, and to articulate, exchange, and
adopt that which we find enabling. As chapter 11 makes clear, however, the
tension between the industrial model of cultural production and the networked
information economy is nowhere more pronounced than in the question of the
degree to which the new folk culture of the twenty-first century will be
permitted to build upon the outputs of the twentieth-century industrial model.
In this battle, the stakes are high. One cannot make new culture ex nihilo. We
are as we are today, as cultural beings, occupying a set of common symbols and
stories that are heavily based on the outputs of that industrial period. If we
are to make this culture our own, render it legible, and make it into a new
platform for our needs and conversations today, we must find a way to cut,
paste, and remix present culture. And it is precisely this freedom that most
directly challenges the laws written for the twentieth-century technology,
economy, and cultural practice. [[pg 301]]


----------------------------------------
CHAPTER 9 - JUSTICE AND DEVELOPMENT
-----------------------------------

How will the emergence of a substantial sector of nonmarket, commons-based
production in the information economy affect questions of distribution and
human well-being? The pessimistic answer is, very little. Hunger, disease, and
deeply rooted racial, ethnic, or class stratification will not be solved by a
more decentralized, nonproprietary information production system. Without clean
water, basic literacy, moderately well-functioning governments, and universal
practical adoption of the commitment to treat all human beings as fundamentally
deserving of equal regard, the fancy Internet-based society will have little
effect on the billions living in poverty or deprivation, either in the rich
world, or, more urgently and deeply, in poor and middle-income economies. There
is enough truth in this pessimistic answer to require us to tread lightly in
embracing the belief that the shift to a networked information economy can
indeed have meaningful effects in the domain of justice and human development.

Despite the caution required in overstating the role that the networked
information economy can play in solving issues of justice, [[pg 302]] it is
important to recognize that information, knowledge, and culture are core inputs
into human welfare. Agricultural knowledge and biological innovation are
central to food security. Medical innovation and access to its fruits are
central to living a long and healthy life. Literacy and education are central
to individual growth, to democratic self-governance, and to economic
capabilities. Economic growth itself is critically dependent on innovation and
information. For all these reasons, information policy has become a critical
element of development policy and the question of how societies attain and
distribute human welfare and well-being. Access to knowledge has become central
to human development. The emergence of the networked information economy offers
definable opportunities for improvement in the normative domain of justice, as
it does for freedom, by comparison to what was achievable in the industrial
information economy.

We can analyze the implications of the emergence of the networked information
economy for justice or equality within two quite different frames. The first is
liberal, and concerned primarily with some form of equality of opportunity. The
second is social-democratic, or development oriented, and focused on universal
provision of a substantial set of elements of human well-being. The
availability of information from nonmarket sources and the range of
opportunities to act within a nonproprietary production environment improve
distribution in both these frameworks, but in different ways. Despite the
differences, within both frameworks the effect crystallizes into one of
access--access to opportunities for one's own action, and access to the outputs
and inputs of the information economy. The industrial economy creates cost
barriers and transactional-institutional barriers to both these domains. The
networked information economy reduces both types of barriers, or creates
alternative paths around them. It thereby equalizes, to some extent, both the
opportunities to participate as an economic actor and the practical capacity to
partake of the fruits of the increasingly information-based global economy.

The opportunities that the network information economy offers, however, often
run counter to the central policy drive of both the United States and the
European Union in the international trade and intellectual property systems.
These two major powers have systematically pushed for ever-stronger proprietary
protection and increasing reliance on strong patents, copyrights, and similar
exclusive rights as the core information policy for growth and development.
Chapter 2 explains why such a policy is suspect from a purely economic
perspective concerned with optimizing innovation. [[pg 303]] A system that
relies too heavily on proprietary approaches to information production is not,
however, merely inefficient. It is unjust. Proprietary rights are designed to
elicit signals of people's willingness and ability to pay. In the presence of
extreme distribution differences like those that characterize the global
economy, the market is a poor measure of comparative welfare. A system that
signals what innovations are most desirable and rations access to these
innovations based on ability, as well as willingness, to pay, overrepresents
welfare gains of the wealthy and underrepresents welfare gains of the poor.
Twenty thousand American teenagers can simply afford, and will be willing to
pay, much more for acne medication than the more than a million Africans who
die of malaria every year can afford to pay for a vaccine. A system that relies
too heavily on proprietary models for managing information production and
exchange is unjust because it is geared toward serving small welfare increases
for people who can pay a lot for incremental improvements in welfare, and
against providing large welfare increases for people who cannot pay for what
they need.

LIBERAL THEORIES OF JUSTICE AND THE NETWORKED INFORMATION ECONOMY
.................................................................

Liberal theories of justice can be categorized according to how they
characterize the sources of inequality in terms of luck, responsibility, and
structure. By luck, I mean reasons for the poverty of an individual that are
beyond his or her control, and that are part of that individual's lot in life
unaffected by his or her choices or actions. By responsibility, I mean causes
for the poverty of an individual that can be traced back to his or her actions
or choices. By structure, I mean causes for the inequality of an individual
that are beyond his or her control, but are traceable to institutions, economic
organizations, or social relations that form a society's transactional
framework and constrain the behavior of the individual or undermine the
efficacy of his or her efforts at self-help.

We can think of John Rawls's /Theory of Justice/ as based on a notion that the
poorest people are the poorest because of dumb luck. His proposal for a
systematic way of defending and limiting redistribution is the "difference
principle." A society should organize its redistribution efforts in order to
make those who are least well-off as well-off as they can be. The theory of
desert is that, because any of us could in principle be the victim of this dumb
luck, we would all have agreed, if none of us had known where we [[pg 304]]
would be on the distribution of bad luck, to minimize our exposure to really
horrendous conditions. The practical implication is that while we might be
bound to sacrifice some productivity to achieve redistribution, we cannot
sacrifice too much. If we did that, we would most likely be hurting, rather
than helping, the weakest and poorest. Libertarian theories of justice, most
prominently represented by Robert Nozick's entitlement theory, on the other
hand, tend to ignore bad luck or impoverishing structure. They focus solely on
whether the particular holdings of a particular person at any given moment are
unjustly obtained. If they are not, they may not justly be taken from the
person who holds them. Explicitly, these theories ignore the poor. As a
practical matter and by implication, they treat responsibility as the source of
the success of the wealthy, and by negation, the plight of the poorest--leading
them to be highly resistant to claims of redistribution.

The basic observation that an individual's economic condition is a function of
his or her own actions does not necessarily resolve into a blanket rejection of
redistribution, as we see in the work of other liberals. Ronald Dworkin's work
on inequality offers a critique of Rawls's, in that it tries to include a
component of responsibility alongside recognition of the role of luck. In his
framework, if (1) resources were justly distributed and (2) bad luck in initial
endowment were compensated through some insurance scheme, then poverty that
resulted from bad choices, not bad luck, would not deserve help through
redistribution. While Rawls's theory ignores personal responsibility, and in
this regard, is less attractive from the perspective of a liberal theory that
respects individual autonomy, it has the advantage of offering a much clearer
metric for a just system. One can measure the welfare of the poorest under
different redistribution rules in market economies. One can then see how much
redistribution is too much, in the sense that welfare is reduced to the point
that the poorest are actually worse off than they would be under a
less-egalitarian system. You could compare the Soviet Union, West Germany, and
the United States of the late 1960s?early 1970s, and draw conclusions.
Dworkin's insurance scheme would require too fine an ability to measure the
expected incapacitating effect of various low endowments--from wealth to
intelligence to health--in a market economy, and to calibrate wealth endowments
to equalize them, to offer a measuring rod for policy. It does, however, have
the merit of distinguishing--for purposes of judging desert to benefit from
society's redistribution efforts--between a child of privilege who fell into
poverty through bad investments coupled with sloth and a person born into a
poor family with severe mental [[pg 305]] defects. Bruce Ackerman's Social
Justice and the Liberal State also provides a mechanism of differentiating the
deserving from the undeserving, but adds policy tractability by including the
dimension of structure to luck and responsibility. In addition to the dumb luck
of how wealthy your parents are when you are born and what genetic endowment
you are born with, there are also questions of the education system you grow up
with and the transactional framework through which you live your life--which
opportunities it affords, and which it cuts off or burdens. His proposals
therefore seek to provide basic remedies for those failures, to the extent that
they can, in fact, be remedied. One such proposal is Anne Alstott and
Ackerman's idea of a government-funded personal endowment at birth, coupled
with the freedom to squander it and suffer the consequential reduction in
welfare.[^105] He also emphasizes a more open and egalitarian transactional
framework that would allow anyone access to opportunities to transact with
others, rather than depending on, for example, unequal access to social links
as a precondition to productive behavior.

The networked information economy improves justice from the perspective of
every single one of these theories of justice. Imagine a good that improves the
welfare of its users--it could be software, or an encyclopedia, or a product
review. Now imagine a policy choice that could make production of that good on
a nonmarket, peer-production basis too expensive to perform, or make it easy
for an owner of an input to exclude competitors-- both market-based and
social-production based. For example, a government might decide to: recognize
patents on software interfaces, so that it would be very expensive to buy the
right to make your software work with someone else's; impose threshold formal
education requirements on the authors of any encyclopedia available for
school-age children to read, or impose very strict copyright requirements on
using information contained in other sources (as opposed to only prohibiting
copying their language) and impose high penalties for small omissions; or give
the putative subjects of reviews very strong rights to charge for the privilege
of reviewing a product--such as by expanding trademark rights to refer to the
product, or prohibiting a reviewer to take apart a product without permission.
The details do not matter. I offer them only to provide a sense of the
commonplace kinds of choices that governments could make that would, as a
practical matter, differentially burden nonmarket producers, whether nonprofit
organizations or informal peer-production collaborations. Let us call a rule
set that is looser from the perspective of access to existing information
resources Rule Set A, and a rule [[pg 306]] set that imposes higher costs on
access to information inputs Rule Set B. As explained in chapter 2, it is quite
likely that adopting B would depress information production and innovation,
even if it were intended to increase the production of information by, for
example, strengthening copyright or patent. This is because the added
incentives for some producers who produce with the aim of capturing the rents
created by copyright or patents must be weighed against their costs. These
include (a) the higher costs even for those producers and (b) the higher costs
for all producers who do not rely on exclusive rights at all, but instead use
either a nonproprietary market model--like service--or a nonmarket model, like
nonprofits and individual authors, and that do not benefit in any way from the
increased appropriation. However, let us make here a much weaker
assumption--that an increase in the rules of exclusion will not affect overall
production. Let us assume that there will be exactly enough increased
production by producers who rely on a proprietary model to offset the losses of
production in the nonproprietary sectors.

It is easy to see why a policy shift from A to B would be regressive from the
perspective of theories like Rawls's or Ackerman's. Under Rule A, let us say
that in this state of affairs, State A, there are five online encyclopedias.
One of them is peer produced and freely available for anyone to use. Rule B is
passed. In the new State B, there are still five encyclopedias. It has become
too expensive to maintain the free encyclopedia, however, and more profitable
to run commercial online encyclopedias. A new commercial encyclopedia has
entered the market in competition with the four commercial encyclopedias that
existed in State A, and the free encyclopedia folded. From the perspective of
the difference principle, we can assume that the change has resulted in a
stable overall welfare in the Kaldor-Hicks sense. (That is, overall welfare has
increased enough so that, even though some people may be worse off, those who
have been made better off are sufficiently better off that they could, in
principle, compensate everyone who is worse off enough to make everyone either
better off or no worse off than they were before.) There are still five
encyclopedias. However, now they all charge a subscription fee. The poorest
members of society are worse off, even if we posit that total social welfare
has remained unchanged. In State A, they had access for free to an
encyclopedia. They could use the information (or the software utility, if the
example were software) without having to give up any other sources of welfare.
In State B, they must choose between the same amount [[pg 307]] of encyclopedia
usage as they had before, and less of some other source of welfare, or the same
welfare from other sources, and no encyclopedia. If we assume, contrary to
theory and empirical evidence from the innovation economics literature, that
the move to State B systematically and predictably improves the incentives and
investments of the commercial producers, that would still by itself not justify
the policy shift from the perspective of the difference principle. One would
have to sustain a much stricter claim: that the marginal improvement in the
quality of the encyclopedias, and a decline in price from the added market
competition that was not felt by the commercial producers when they were
competing with the free, peer-produced version, would still make the poorest
better off, even though they now must pay for any level of encyclopedia access,
than they were when they had four commercial competitors with their prior
levels of investment operating in a competitive landscape of four commercial
and one free encyclopedia.

From the perspective of Ackerman's theory of justice, the advantages of the
networked information economy are clearer yet. Ackerman characterizes some of
the basic prerequisites for participating in a market economy as access to a
transactional framework, to basic information, and to an adequate educational
endowment. To the extent that any of the basic utilities required to
participate in an information economy at all are available without sensitivity
to price--that is, free to anyone--they are made available in a form that is
substantially insulated from the happenstance of initial wealth endowments. In
this sense at least, the development of a networked information economy
overcomes some of the structural components of continued poverty--lack of
access to information about market opportunities for production and cheaper
consumption, about the quality of goods, or lack of communications capacity to
people or places where one can act productively. While Dworkin's theory does
not provide a similarly clear locus for mapping the effect of the networked
information economy on justice, there is some advantage, and no loss, from this
perspective, in having more of the information economy function on a nonmarket
basis. As long as one recognizes bad luck as a partial reason for poverty, then
having information resources available for free use is one mechanism of
moderating the effects of bad luck in endowment, and lowers the need to
compensate for those effects insofar as they translate to lack of access to
information resources. This added access results from voluntary communication
by the producers and a respect for their willingness to communicate what they
produced freely. [[pg 308]] While the benefits flow to individuals irrespective
of whether their present state is due to luck or irresponsibility, it does not
involve a forced redistribution from responsible individuals to irresponsible
individuals.

From the perspective of liberal theories of justice, then, the emergence of the
networked information economy is an unqualified improvement. Except under
restrictive assumptions inconsistent with what we know as a matter of both
theory and empirics about the economics of innovation and information
production, the emergence of a substantial sector of information production and
exchange that is based on social transactional frameworks, rather than on a
proprietary exclusion business model, improves distribution in society. Its
outputs are available freely to anyone, as basic inputs into their own
actions--whether market-based or nonmarket-based. The facilities it produces
improve the prospects of all who are connected to the Internet-- whether they
are seeking to use it as consumers or as producers. It softens some of the
effects of resource inequality. It offers platforms for greater equality of
opportunity to participate in market- and nonmarket-based enterprises. This
characteristic is explored in much greater detail in the next segment of this
chapter, but it is important to emphasize here that equality of opportunity to
act in the face of unequal endowment is central to all liberal theories of
justice. As a practical matter, these characteristics of the networked
information economy make the widespread availability of Internet access a more
salient objective of redistribution policy. They make policy debates, which are
mostly discussed in today's political sphere in terms of innovation and growth,
and sometimes in terms of freedom, also a matter of liberal justice.

COMMONS-BASED STRATEGIES FOR HUMAN WELFARE AND DEVELOPMENT
..........................................................

There is a long social-democratic tradition of focusing not on theoretical
conditions of equality in a liberal society, but on the actual well-being of
human beings in a society. This conception of justice shares with liberal
theories the acceptance of market economy as a fundamental component of free
societies. However, its emphasis is not equality of opportunity or even some
level of social insurance that still allows the slothful to fall, but on
assuring a basic degree of well-being to everyone in society. Particularly in
the European social democracies, the ambition has been to make that basic level
quite high, but the basic framework of even American Social Security-- [[pg
309]] unless it is fundamentally changed in the coming years--has this
characteristic. The literature on global poverty and its alleviation was
initially independent of this concern, but as global communications and
awareness increased, and as the conditions of life in most advanced market
economies for most people improved, the lines between the concerns with
domestic conditions and global poverty blurred. We have seen an increasing
merging of the concerns into a concern for basic human well-being everywhere.
It is represented in no individual's work more clearly than in that of Amartya
Sen, who has focused on the centrality of development everywhere to the
definition not only of justice, but of freedom as well.

The emerging salience of global development as the core concern of distributive
justice is largely based on the sheer magnitude of the problems faced by much
of the world's population.[^106] In the world's largest democracy, 80 percent
of the population--slightly more people than the entire population of the
United States and the expanded European Union combined-- lives on less than two
dollars a day, 39 percent of adults are illiterate, and 47 percent of children
under the age of five are underweight for their age. In Africa's wealthiest
democracy, a child at birth has a 45 percent probability of dying before he or
she reaches the age of forty. India and South Africa are far from being the
worst-off countries. The scope of destitution around the globe exerts a moral
pull on any acceptable discussion of justice. Intuitively, these problems seem
too fundamental to be seriously affected by the networked information
economy--what has /Wikipedia/ got to do with the 49 percent of the population
of Congo that lacks sustainable access to improved water sources? It is,
indeed, important not to be overexuberant about the importance of information
and communications policy in the context of global human development. But it is
also important not to ignore the centrality of information to most of our
more-advanced strategies for producing core components of welfare and
development. To see this, we can begin by looking at the components of the
Human Development Index (HDI).

The Human Development Report was initiated in 1990 as an effort to measure a
broad set of components of what makes a life livable, and, ultimately,
attractive. It was developed in contradistinction to indicators centered on
economic output, like gross domestic product (GDP) or economic growth alone, in
order to provide a more refined sense of what aspects of a nation's economy and
society make it more or less livable. It allows a more nuanced approach toward
improving the conditions of life everywhere. As [[pg 310]] Sen pointed out, the
people of China, Kerala in India, and Sri Lanka lead much longer and healthier
lives than other countries, like Brazil or South Africa, which have a higher
per capita income.[^107] The Human Development Report measures a wide range of
outcomes and characteristics of life. The major composite index it tracks is
the Human Development Index. The HDI tries to capture the capacity of people to
live long and healthy lives, to be knowledgeable, and to have material
resources sufficient to provide a decent standard of living. It does so by
combining three major components: life expectancy at birth, adult literacy and
school enrollment, and GDP per capita. As Figure 9.1 illustrates, in the global
information economy, each and every one of these measures is significantly,
though not solely, a function of access to information, knowledge, and
information-embedded goods and services. Life expectancy is affected by
adequate nutrition and access to lifesaving medicines. Biotechnological
innovation for agriculture, along with agronomic innovation in cultivation
techniques and other, lower-tech modes of innovation, account for a high
portion of improvements in the capacity of societies to feed themselves and in
the availability of nutritious foods. Medicines depend on pharmaceutical
research and access to its products, and health care depends on research and
publication for the development and dissemination of information about
best-care practices. Education is also heavily dependent, not surprisingly, on
access to materials and facilities for teaching. This includes access to basic
textbooks, libraries, computation and communications systems, and the presence
of local academic centers. Finally, economic growth has been understood for
more than half a century to be centrally driven by innovation. This is
particularly true of latecomers, who can improve their own condition most
rapidly by adopting best practices and advanced technology developed elsewhere,
and then adapting to local conditions and adding their own from the new
technological platform achieved in this way. All three of these components are,
then, substantially affected by access to, and use of, information and
knowledge. The basic premise of the claim that the emergence of the networked
information economy can provide significant benefits to human development is
that the manner in which we produce new information--and equally important, the
institutional framework we use to manage the stock of existing information and
knowledge around the world--can have significant impact on human development.
[[pg 311]]

won_benkler_9_1.png 420x341 "Figure 9.1: HDI and Information" [link:
<http://www.jus.uio.no/sisu>]

INFORMATION-EMBEDDED GOODS AND TOOLS, INFORMATION, AND KNOWLEDGE
................................................................

One can usefully idealize three types of information-based advantages that
developed economies have, and that would need to be available to developing and
less-developed economies if one's goal were the improvement in conditions in
those economies and the opportunities for innovation in them. These include
information-embedded material resources--consumption goods and production
tools--information, and knowledge.

/Information-Embedded Goods/. These are goods that are not themselves
information, but that are better, more plentiful, or cheaper because of some
technological advance embedded in them or associated with their production.
Pharmaceuticals and agricultural goods are the most obvious examples in the
areas of health and food security, respectively. While there are other
constraints on access to innovative products in these areas--regulatory and
political in nature--a perennial barrier is cost. And a perennial barrier to
competition that could reduce the cost is the presence of exclusive rights,
[[pg 312]] mostly in the form of patents, but also in the form of
internationally recognized breeders' rights and regulatory data exclusivity. In
the areas of computation and communication, hardware and software are the
primary domains of concern. With hardware, there have been some efforts toward
developing cheaper equipment--like the simputer and the Jhai computer efforts
to develop inexpensive computers. Because of the relatively commoditized state
of most components of these systems, however, marginal cost, rather than
exclusive rights, has been the primary barrier to access. The solution, if one
has emerged, has been aggregation of demand--a networked computer for a
village, rather than an individual. For software, the initial solution was
piracy. More recently, we have seen an increased use of free software instead.
The former cannot genuinely be described as a "solution," and is being
eliminated gradually by trade policy efforts. The latter--adoption of free
software to obtain state-of-the-art software--forms the primary template for
the class of commons-based solutions to development that I explore in this
chapter.

/Information-Embedded Tools/. One level deeper than the actual useful material
things one would need to enhance welfare are tools necessary for innovation
itself. In the areas of agricultural biotechnology and medicines, these include
enabling technologies for advanced research, as well as access to materials and
existing compounds for experimentation. Access to these is perhaps the most
widely understood to present problems in the patent system of the developed
world, as much as it is for the developing world--an awareness that has mostly
crystallized under Michael Heller's felicitous phrase "anti-commons," or Carl
Shapiro's "patent thicket." The intuition, whose analytic basis is explained in
chapter 2, is that innovation is encumbered more than it is encouraged when
basic tools for innovation are proprietary, where the property system gives
owners of these tools proprietary rights to control innovation that relies on
their tools, and where any given new innovation requires the consent of, and
payment to, many such owners. This problem is not unique to the developing
world. Nonetheless, because of the relatively small dollar value of the market
for medicines that treat diseases that affect only poorer countries or of crop
varieties optimized for those countries, the cost hurdle weighs more heavily on
the public or nonprofit efforts to achieve food security and health in poor and
middle-income countries. These nonmarket-based research efforts into diseases
and crops of concern purely to these areas are not constructed to appropriate
gains from [[pg 313]] exclusive rights to research tools, but only bear their
costs on downstream innovation.

/Information/. The distinction between information and knowledge is a tricky
one. I use "information" here colloquially, to refer to raw data, scientific
reports of the output of scientific discovery, news, and factual reports. I use
"knowledge" to refer to the set of cultural practices and capacities necessary
for processing the information into either new statements in the information
exchange, or more important in our context, for practical use of the
information in appropriate ways to produce more desirable actions or outcomes
from action. Three types of information that are clearly important for purposes
of development are scientific publications, scientific and economic data, and
news and factual reports. Scientific publication has seen a tremendous cost
escalation, widely perceived to have reached crisis proportions even by the
terms of the best-endowed university libraries in the wealthiest countries.
Over the course of the 1990s, some estimates saw a 260 percent increase in the
prices of scientific publications, and libraries were reported choosing between
journal subscription and monograph purchases.[^108] In response to this crisis,
and in reliance on what were perceived to be the publication costreduction
opportunities for Internet publication, some scientists--led by Nobel laureate
and then head of the National Institutes of Health Harold Varmus--began to
agitate for a scientist-based publication system.[^109] The debates were, and
continue to be, heated in this area. However, currently we are beginning to see
the emergence of scientist-run and -driven publication systems that distribute
their papers for free online, either within a traditional peer-review system
like the Public Library of Science (PLoS), or within tightly knit disciplines
like theoretical physics, with only post-publication peer review and revision,
as in the case of the Los Alamos Archive, or ArXiv.org. Together with free
software and peer production on the Internet, the PLoS and ArXiv.org models
offer insights into the basic shape of the class of commons-based,
nonproprietary production solutions to problems of information production and
exchange unhampered by intellectual property.

Scientific and economic data present a parallel conceptual problem, but in a
different legal setting. In the case of both types of data, much of it is
produced by government agencies. In the United States, however, raw data is in
the public domain, and while initial access may require payment of the cost of
distribution, reworking of the data as a tool in information production [[pg
314]] and innovation--and its redistribution by those who acquired access
initially--is considered to be in the public domain. In Europe, this has not
been the case since the 1996 Database Directive, which created a propertylike
right in raw data in an effort to improve the standing of European database
producers. Efforts to pass similar legislation in the United States have been
mounted and stalled in practically every Congress since the mid1990s. These
laws continue to be introduced, driven by the lobby of the largest owners of
nongovernment databases, and irrespective of the fact that for almost a decade,
Europe's database industry has grown only slowly in the presence of a right,
while the U.S. database industry has flourished without an exclusive rights
regime.

News, market reports, and other factual reporting seem to have escaped the
problems of barriers to access. Here it is most likely that the
value-appropriation model simply does not depend on exclusive rights. Market
data is generated as a by-product of the market function itself. Tiny time
delays are sufficient to generate a paying subscriber base, while leaving the
price trends necessary for, say, farmers to decide at what prices to sell their
grain in the local market, freely available.[^110] As I suggested in chapter 2,
the advertising-supported press has never been copyright dependent, but has
instead depended on timely updating of news to capture attention, and then
attach that attention to advertising. This has not changed, but the speed of
the update cycle has increased and, more important, distribution has become
global, so that obtaining most information is now trivial to anyone with access
to an Internet connection. While this continues to raise issues with deployment
of communications hardware and the knowledge of how to use it, these issues can
be, and are being, approached through aggregation of demand in either public or
private forms. These types of information do not themselves appear to exhibit
significant barriers to access once network connectivity is provided.

/Knowledge/. In this context, I refer mostly to two types of concern. The first
is the possibility of the transfer of implicit knowledge, which resists
codification into what would here be treated as "information"--for example,
training manuals. The primary mechanism for transfer of knowledge of this type
is learning by doing, and knowledge transfer of this form cannot happen except
through opportunities for local practice of the knowledge. The second type of
knowledge transfer of concern here is formal instruction in an education
context (as compared with dissemination of codified outputs for self- [[pg
315]] teaching). Here, there is a genuine limit on the capacity of the
networked information economy to improve access to knowledge. Individual,
face-to-face instruction does not scale across participants, time, and
distance. However, some components of education, at all levels, are nonetheless
susceptible to improvement with the increase in nonmarket and radically
decentralized production processes. The MIT Open Courseware initiative is
instructive as to how the universities of advanced economies can attempt to
make at least their teaching materials and manuals freely available to teachers
throughout the world, thereby leaving the pedagogy in local hands but providing
more of the basic inputs into the teaching process on a global scale. More
important perhaps is the possibility that teachers and educators can
collaborate, both locally and globally, on an open platform model like
/Wikipedia/, to coauthor learning objects, teaching modules, and, more
ambitiously, textbooks that could then be widely accessed by local teachers

INDUSTRIAL ORGANIZATION OF HDI-RELATED INFORMATION INDUSTRIES
.............................................................

The production of information and knowledge is very different from the
production of steel or automobiles. Chapter 2 explains in some detail that
information production has always included substantial reliance on nonmarket
actors and on nonmarket, nonproprietary settings as core modalities of
production. In software, for example, we saw that Mickey and romantic
maximizer-type producers, who rely on exclusive rights directly, have accounted
for a stable 36-37 percent of market-based revenues for software developers,
while the remainder was focused on both supply-side and demand-side
improvements in the capacity to offer software services. This number actually
overstates the importance of software publishing, because it does not at all
count free software development except when it is monetized by an IBM or a Red
Hat, leaving tremendous value unaccounted for. A very large portion of the
investments and research in any of the information production fields important
to human development occur within the category that I have broadly described as
"Joe Einstein." These include both those places formally designated for the
pursuit of information and knowledge in themselves, like universities, and
those that operate in the social sphere, but produce information and knowledge
as a more or less central part of their existence--like churches or political
parties. Moreover, individuals acting as social beings have played a central
role in our information [[pg 316]] production and exchange system. In order to
provide a more sector-specific analysis of how commons-based, as opposed to
proprietary, strategies can contribute to development, I offer here a more
detailed breakdown specifically of software, scientific publication,
agriculture, and biomedical innovation than is provided in chapter 2.

Table 9.1 presents a higher-resolution statement of the major actors in these
fields, within both the market and the nonmarket sectors, from which we can
then begin to analyze the path toward, and the sustainability of, more
significant commons-based production of the necessities of human development.
Table 9.1 identifies the relative role of each of the types of main actors in
information and knowledge production across the major sectors relevant to
contemporary policy debates. It is most important to extract from this table
the diversity of business models and roles not only in each industry, but also
among industries. This diversity means that different types of actors can have
different relative roles: nonprofits as opposed to individuals, universities as
opposed to government, or nonproprietary market actors--that is, market actors
whose business model is service based or otherwise does not depend on exclusive
appropriation of information--as compared to nonmarket actors. The following
segments look at each of these sectors more specifically, and describe the ways
in which commons-based strategies are already, or could be, used to improve the
access to information, knowledge, and the information-embedded goods and tools
for human development. However, even a cursory look at the table shows that the
current production landscape of software is particularly well suited to having
a greater role for commonsbased production. For example, exclusive proprietary
producers account for only one-third of software-related revenues, even within
the market. The remainder is covered by various services and relationships that
are compatible with nonproprietary treatment of the software itself.
Individuals and nonprofit associations also have played a very large role, and
continue to do so, not only in free software development, but in the
development of standards as well. As we look at each sector, we see that they
differ in their incumbent industrial landscape, and these differences mean that
each sector may be more or less amenable to commons-based strategies, and, even
if in principle amenable, may present harder or easier transition problems.
[[pg 317]]

*Table 9.1: Map of Players and Roles in Major Relevant Sectors*

Actor Sector┆Government┆Universities, Libraries, etc.┆IP-Based Industry┆Non-IP-Based Industry┆NGOs/ Nonprofits┆Individuals
Software┆Research funding, defense, procurement┆Basic research and design; components "incubate" much else┆Software publishing (1/3 annual revenue)┆Software services, customization (2/3 annual revenue)┆FSF; Apache; W3C; IETF┆Free/ opensource software
Scientific publication┆Research funding┆University presses; salaries; promotions and tenure┆Elsevier Science; professional associations┆Biomed Central┆PLoS; ArXiv┆Working papers; Web-based self-publishing
Agricultural Biotech┆Grants and government labs┆Basic research; tech transfer (50%)┆Big Pharma; Biotech (50%)┆Generics┆One-World Health┆None

TOWARD ADOPTING COMMONS-BASED STRATEGIES FOR DEVELOPMENT
........................................................

The mainstream understanding of intellectual property by its dominant
policy-making institutions--the Patent Office and U.S. trade representative in
the United States, the Commission in the European Union, and the World
Intellectual Property Organization (WIPO) and Trade-Related Aspects of
Intellectual Property (TRIPS) systems internationally--is that strong
protection is good, and stronger protection is better. In development and trade
policy, this translates into a belief that the primary mechanism for knowledge
transfer and development in a global information economy is for [[pg 318]] all
nations, developing as well as developed, to ratchet up their intellectual
property law standards to fit the most protective regimes adopted in the United
States and Europe. As a practical political matter, the congruence between the
United States and the European Union in this area means that this basic
understanding is expressed in the international trade system, in the World
Trade Organization (WTO) and its TRIPS agreement, and in international
intellectual property treaties, through the WIPO. The next few segments present
an alternative view. Intellectual property as an institution is substantially
more ambiguous in its effects on information production than the steady drive
toward expansive rights would suggest. The full argument is in chapter 2.

Intellectual property is particularly harmful to net information importers. In
our present world trade system, these are the poor and middle-income nations.
Like all users of information protected by exclusive rights, these nations are
required by strong intellectual property rights to pay more than the marginal
cost of the information at the time that they buy it. In the standard argument,
this is intended to give producers incentives to create information that users
want. Given the relative poverty of these countries, however, practically none
of the intellectual-property-dependent producers develop products specifically
with returns from poor or even middle-income markets in mind. The
pharmaceutical industry receives about 5 percent of its global revenues from
low- and middle-income countries. That is why we have so little investment in
drugs for diseases that affect only those parts of the world. It is why most
agricultural research that has focused on agriculture in poorer areas of the
world has been public sector and nonprofit. Under these conditions, the
above-marginal-cost prices paid in these poorer countries are purely regressive
redistribution. The information, knowledge, and information-embedded goods paid
for would have been developed in expectation of rich world rents alone. The
prospects of rents from poorer countries do not affect their development. They
do not affect either the rate or the direction of research and development.
They simply place some of the rents that pay for technology development in the
rich countries on consumers in poor and middle-income countries. The morality
of this redistribution from the world's poor to the world's rich has never been
confronted or defended in the European or American public spheres. It simply
goes unnoticed. When crises in access to information-embedded goods do
appear--such as in the AIDS/HIV access to medicines crisis--these are seldom
tied to our [[pg 319]] basic institutional choice. In our trade policies,
Americans and Europeans push for ever-stronger protection. We thereby
systematically benefit those who own much of the stock of usable human
knowledge. We do so at the direct expense of those who need access to knowledge
in order to feed themselves and heal their sick.

The practical politics of the international intellectual property and trade
regime make it very difficult to reverse the trend toward ever-increasing
exclusive property protections. The economic returns to exclusive proprietary
rights in information are highly concentrated in the hands of those who own
such rights. The costs are widely diffuse in the populations of both the
developing and developed world. The basic inefficiency of excessive property
protection is difficult to understand bycomparison to the intuitive, but
mistaken, Economics 101 belief that property is good, more property is better,
and intellectual property must be the same. The result is that pressures on the
governmentsthat represent exporters of intellectual property rights
permissions--in particular, the United States and the European Union--come in
this area mostly from the owners, and they continuously push for everstronger
rights. Monopoly is a good thing to have if you can get it. Its value for rent
extraction isno less valuable for a database or patent-based company than it is
for the dictator's nephew in a banana republic. However, its value to these
supplicants does not make it any more efficient or desirable. The political
landscape is, however, gradually beginning to change. Since the turn of the
twenty-first century, and particularly in the wake of the urgency with which
the HIV/AIDS crisis in Africa has infused the debate over access to medicines,
there has been a growing public interest advocacy movementfocused on the
intellectual property trade regime. This movement is, however, confronted with
a highly playable system. A victory for developing world access in one round in
the TRIPS context always leaves other places to construct mechanisms for
exclusivity. Bilateral trade negotiations are one domain that is beginning to
play an important role. In these, the United States or the European Union can
force a rice- or cotton-exporting country to concede a commitment to strong
intellectual property protection in exchange for favorable treatment for their
core export. The intellectual property exporting nations can then go to WIPO,
and push for new treaties based on the emerging international practice of
bilateral agreements. This, in turn, would cycle back and be generalized and
enforced through the trade regimes. Another approach is for the exporting
nations to change their own [[pg 320]] laws, and then drive higher standards
elsewhere in the name of "harmonization." Because the international trade and
intellectual property system is highly "playable" and manipulable in these
ways, systematic resistance to the expansion of intellectual property laws is
difficult.

The promise of the commons-based strategies explored in the remainder of this
chapter is that they can be implemented without changes in law-- either
national or international. They are paths that the emerging networked
information economy has opened to individuals, nonprofits, and publicsector
organizations that want to help in improving human development in the poorer
regions of the world to take action on their own. As with decentralized speech
for democratic discourse, and collaborative production by individuals of the
information environment they occupy as autonomous agents, here too we begin to
see that self-help and cooperative action outside the proprietary system offer
an opportunity for those who wish to pursue it. In this case, it is an
opportunity to achieve a more just distribution of the world's resources and a
set of meaningful improvements in human development. Some of these solutions
are "commons-based," in the sense that they rely on free access to existing
information that is in the commons, and they facilitate further use and
development of that information and those information-embedded goods and tools
by releasing their information outputs openly, and managing them as a commons,
rather than as property. Some of the solutions are specifically peer-production
solutions. We see this most clearly in software, and to some extent in the more
radical proposals for scientific publication. I will also explore here the
viability of peerproduction efforts in agricultural and biomedical innovation,
although in those fields, commons-based approaches grafted onto traditional
publicsector and nonprofit organizations at present hold the more clearly
articulated alternatives.

SOFTWARE
........

The software industry offers a baseline case because of the proven large scope
for peer production in free software. As in other information-intensive
industries, government funding and research have played an enormously important
role, and university research provides much of the basic science. However, the
relative role of individuals, nonprofits, and nonproprietary market producers
is larger in software than in the other sectors. First, twothirds of revenues
derived from software in the United States are from services [[pg 321]] and do
not depend on proprietary exclusion. Like IBM's "Linux-related services"
category, for which the company claimed more than two billion dollars of
revenue for 2003, these services do not depend on exclusion from the software,
but on charging for service relationships.[^111] Second, some of the most basic
elements of the software environment--like standards and protocols--are
developed in nonprofit associations, like the Internet Engineering Taskforce or
the World Wide Web Consortium. Third, the role of individuals engaged in peer
production--the free and open-source software development communities--is very
large. Together, these make for an organizational ecology highly conducive to
nonproprietary production, whose outputs can be freely usable around the globe.
The other sectors have some degree of similar components, and commons-based
strategies for development can focus on filling in the missing components and
on leveraging nonproprietary components already in place.

In the context of development, free software has the potential to play two
distinct and significant roles. The first is offering low-cost access to
highperforming software for developing nations. The second is creating the
potential for participation in software markets based on human ability, even
without access to a stock of exclusive rights in existing software. At present,
there is a movement in both developing and the most advanced economies to
increase reliance on free software. In the United States, the Presidential
Technology Advisory Commission advised the president in 2000 to increase use of
free software in mission-critical applications, arguing the high quality and
dependability of such systems. To the extent that quality, reliability, and
ease of self-customization are consistently better with certain free software
products, they are attractive to developing-country governments for the same
reasons that they are to the governments of developed countries. In the context
of developing nations, the primary additional arguments that have been made
include cost, transparency, freedom from reliance on a single foreign source
(read, Microsoft), and the potential of local software programmers to learn the
program, acquire skills, and therefore easily enter the global market with
services and applications for free software.[^112] The question of cost,
despite the confusion that often arises from the word "free," is not obvious.
It depends to some extent on the last hope--that local software developers will
become skilled in the free software platforms. The cost of software to any
enterprise includes the extent, cost, and efficacy with which the software can
be maintained, upgraded, and fixed when errors occur. Free [[pg 322]] software
may or may not involve an up-front charge. Even if it does not, that does not
make it cost-free. However, free software enables an open market in free
software servicing, which in turn improves and lowers the cost of servicing the
software over time. More important, because the software is open for all to see
and because developer communities are often multinational, local developers can
come, learn the software, and become relatively low-cost software service
providers for their own government. This, in turn, helps realize the low-cost
promise over and above the licensing fees avoided. Other arguments in favor of
government procurement of free software focus on the value of transparency of
software used for public purposes. The basic thrust of these arguments is that
free software makes it possible for constituents to monitor the behavior of
machines used in governments, to make sure that they are designed to do what
they are publicly reported to do. The most significant manifestation of this
sentiment in the United States is the hitherto-unsuccessful, but fairly
persistent effort to require states to utilize voting machines that use free
software, or at a minimum, to use software whose source code is open for public
inspection. This is a consideration that, if valid, is equally suitable for
developing nations. The concern with independence from a single foreign
provider, in the case of operating systems, is again not purely a
developing-nation concern. Just as the United States required American Marconi
to transfer its assets to an American company, RCA, so that it would not be
dependent for a critical infrastructure on a foreign provider, other countries
may have similar concerns about Microsoft. Again, to the extent that this is a
valid concern, it is so for rich nations as much as it is for poor, with the
exceptions of the European Union and Japan, which likely do have bargaining
power with Microsoft to a degree that smaller markets do not.

The last and quite distinct potential gain is the possibility of creating a
context and an anchor for a free software development sector based on service.
This was cited as the primary reason behind Brazil's significant push to use
free software in government departments and in telecenters that the federal
government is setting up to provide Internet service access to some of its
poorer and more remote areas. Software services represent a very large
industry. In the United States, software services are an industry roughly twice
the size of the movie and video industry. Software developers from low- and
middle-income countries can participate in the growing free software segment of
this market by using their skills alone. Unlike with service for the
proprietary domain, they need not buy licenses to learn and practice the [[pg
323]] services. Moreover, if Brazil, China, India, Indonesia, and other major
developing countries were to rely heavily on free software, then the "internal
market," within the developing world, for free software?related services would
become very substantial. Building public-sector demand for these services would
be one place to start. Moreover, because free software development is a global
phenomenon, free software developers who learn their skills within the
developing world would be able to export those skills elsewhere. Just as
India's call centers leverage the country's colonial past with its resulting
broad availability of English speakers, so too countries like Brazil can
leverage their active free software development community to provide software
services for free software platforms anywhere in the developed and developing
worlds. With free software, the developing-world providers can compete as
equals. They do not need access to permissions to operate. Their relationships
need not replicate the "outsourcing" model so common in proprietary industries,
where permission to work on a project is the point of control over the ability
to do so. There will still be branding issues that undoubtedly will affect
access to developed markets. However, there will be no baseline constraints of
minimal capital necessary to enter the market and try to develop a reputation
for reliability. As a development strategy, then, utilization of free software
achieves transfer of information-embedded goods for free or at low cost. It
also transfers information about the nature of the product and its
operation--the source code. Finally, it enables transfer, at least potentially,
of opportunities for learning by doing and of opportunities for participating
in the global market. These would depend on knowledge of a free software
platform that anyone is free to learn, rather than on access to financial
capital or intellectual property inventories as preconditions to effective
participation.

SCIENTIFIC PUBLICATION
......................

Scientific publication is a second sector where a nonproprietary strategy can
be implemented readily and is already developing to supplant the proprietary
model. Here, the existing market structure is quite odd in a way that likely
makes it unstable. Authoring and peer review, the two core value-creating
activities, are done by scientists who perform neither task in expectation of
royalties or payment. The model of most publications, however, is highly
proprietary. A small number of business organizations, like Elsevier Science,
control most of the publications. Alongside them, professional associations of
scientists also publish their major journals using a proprietary model. [[pg
324]] Universities, whose scientists need access to the papers, incur
substantial cost burdens to pay for the publications as a basic input into
their own new work. While the effects of this odd system are heavily felt in
universities in rich countries, the burden of subscription rates that go into
the thousands of dollars per title make access to up-to-date scientific
research prohibitive for universities and scientists working in poorer
economies. Nonproprietary solutions are already beginning to emerge in this
space. They fall into two large clusters.

The first cluster is closer to the traditional peer-review publication model.
It uses Internet communications to streamline the editorial and peer-review
system, but still depends on a small, salaried editorial staff. Instead of
relying on subscription payments, it relies on other forms of payments that do
not require charging a price for the outputs. In the case of the purely
nonprofit Public Library of Science (PLoS), the sources of revenue combine
author's payments for publication, philanthropic support, and university
memberships. In the case of the for-profit BioMed Central, based in the United
Kingdom, it is a combination of author payments, university memberships, and a
variety of customized derivative products like subscription-based literature
reviews and customized electronic update services. Author payments--fees
authors must pay to have their work published--are built into the cost of
scientific research and included in grant applications. In other words, they
are intended to be publicly funded. Indeed, in 2005, the National Institutes of
Health (NIH), the major funding agency for biomedical science in the United
States, announced a requirement that all NIH-funded research be made freely
available on the Web within twelve months of publication. Both PLoS and BioMed
Central have waiver processes for scientists who cannot pay the publication
fees. The articles on both systems are available immediately for free on the
Internet. The model exists. It works internally and is sustainable as such.
What is left in determining the overall weight that these open-access journals
will have in the landscape of scientific publication is the relatively
conservative nature of universities themselves. The established journals, like
Science or Nature, still carry substantially more prestige than the new
journals. As long as this is the case, and as long as hiring and promotion
decisions continue to be based on the prestige of the journal in which a
scientist's work is published, the ability of the new journals to replace the
traditional ones will be curtailed. Some of the established journals, however,
are operated by professional associations of scientists. There is an internal
tension between the interests of the associations in securing [[pg 325]] their
revenue and the growing interest of scientists in open-access publication.
Combined with the apparent economic sustainability of the open-access journals,
it seems that some of these established journals will likely shift over to the
open-access model. At a minimum, policy interventions like those proposed by
the NIH will force traditional publications to adapt their business model by
making access free after a few months. The point here, however, is not to
predict the overall likely success of open-access journals. It is to combine
them with what we have seen happening in software as another example of a
reorganization of the components of the industrial structure of an information
production system. Individual scientists, government funding agencies,
nonprofits and foundations, and nonproprietary commercial business models can
create the same good--scientific publication--but without the cost barrier that
the old model imposed on access to its fruits. Such a reorientation would
significantly improve the access of universities and physicians in developing
nations to the most advanced scientific publication.

The second approach to scientific publication parallels more closely free
software development and peer production. This is typified by ArXiv and the
emerging practices of self-archiving or self-publishing. ArXiv.org is an online
repository of working papers in physics, mathematics, and computer science. It
started out focusing on physics, and that is where it has become the sine qua
non of publication in some subdisciplines. The archive does not perform review
except for technical format compliance. Quality control is maintained by
postpublication review and commentary, as well as by hosting updated versions
of the papers with explanations (provided by authors) of the changes. It is
likely that the reason ArXiv.org has become so successful in physics is the
very small and highly specialized nature of the discipline. The universe of
potential readers is small, and their capacity to distinguish good arguments
from bad is high. Reputation effects of poor publications are likely immediate.

While ArXiv offers a single repository, a much broader approach has been the
developing practice of self-archiving. Academics post their completed work on
their own Web sites and make it available freely. The primary limitation of
this mechanism is the absence of an easy, single location where one can search
for papers on a topic of concern. And yet we are already seeing the emergence
of tagging standards and protocols that allow anyone to search the universe of
self-archived materials. Once completed, such a development process would in
principle render archiving by single points of reference unnecessary. The
University of Michigan Digital Library Production [[pg 326]] Service, for
example, has developed a protocol called OAIster (pronounced like oyster, with
the tagline "find the pearls"), which combines the acronym of Open Archives
Initiative with the "ster" ending made popular in reference to peer-to-peer
distribution technologies since Napster (AIMster, Grokster, Friendster, and the
like). The basic impulse of the Open Archives Initiative is to develop a
sufficiently refined set of meta-data tags that would allow anyone who archives
their materials with OAI-compliant tagging to be searched easily, quickly, and
accurately on the Web. In that case, a general Web search becomes a targeted
academic search in a "database" of scientific publications. However, the
database is actually a network of self-created, small personal databases that
comply with a common tagging and search standard. Again, my point here is not
to explore the details of one or another of these approaches. If scientists and
other academics adopt this approach of self-archiving coupled with standardized
interfaces for global, welldelimited searches, the problem of lack of access to
academic publication because of their high-cost publication will be eliminated.

Other types of documents, for example, primary- and secondary-education
textbooks, are in a much more rudimentary stage of the development of
peer-production models. First, it should be recognized that responses to
illiteracy and low educational completion in the poorer areas of the world are
largely a result of lack of schoolteachers, physical infrastructure for
classrooms, demand for children's schooling among parents who are themselves
illiterate, and lack of effectively enforced compulsory education policy. The
cost of textbooks contributes only a portion of the problem of cost. The
opportunity cost of children's labor is probably the largest factor.
Nonetheless, outdated materials and poor quality of teaching materials are
often cited as one limit on the educational achievement of those who do attend
school. The costs of books, school fees, uniforms, and stationery can amount to
20? 30 percent of a family's income.[^113] The component of the problem
contributed by the teaching materials may be alleviated by innovative
approaches to textbook and education materials authoring. Chapter 4 already
discussed some textbook initiatives. The most successful commons-based textbook
authoring project, which is also the most relevant from the perspective of
development, is the South African project, Free High School Science Texts
(FHSST). The FHSST initiative is more narrowly focused than the broader efforts
of Wikibooks or the California initiative, more managed, and more successful.
Nonetheless, in three years of substantial effort by a group of dedicated
volunteers who administer the project, its product is one physics [[pg 327]]
high school text, and advanced drafts of two other science texts. The main
constraint on the efficacy of collaborative textbook authoring is that
compliance requirements imposed by education ministries tend to require a great
degree of coherence, which constrains the degree of modularity that these
text-authoring projects adopt. The relatively large-grained contributions
required limit the number of contributors, slowing the process. The future of
these efforts is therefore likely to be determined by the extent to which their
designers are able to find ways to make finer-grained modules without losing
the coherence required for primary- and secondary-education texts. Texts at the
post-secondary level likely present less of a problem, because of the greater
freedom instructors have to select texts. This allows an initiative like MIT's
Open Courseware Initiative to succeed. That initiative provides syllabi,
lecture notes, problem sets, etc. from over 1,100 courses. The basic creators
of the materials are paid academics who produce these materials for one of
their core professional roles: teaching college- and graduate-level courses.
The content is, by and large, a "side-effect" of teaching. What is left to be
done is to integrate, create easy interfaces and search capabilities, and so
forth. The university funds these functions through its own resources and
dedicated grant funding. In the context of MIT, then, these functions are
performed on a traditional model--a large, well-funded nonprofit provides an
important public good through the application of full-time staff aimed at
non-wealth-maximizing goals. The critical point here was the radical departure
of MIT from the emerging culture of the 1980s and 1990s in American academia.
When other universities were thinking of "distance education" in terms of
selling access to taped lectures and materials so as to raise new revenue, MIT
thought of what its basic mandate to advance knowledge and educate students in
a networked environment entailed. The answer was to give anyone, anywhere,
access to the teaching materials of some of the best minds in the world. As an
intervention in the ecology of free knowledge and information and an act of
leadership among universities, the MIT initiative was therefore a major event.
As a model for organizational innovation in the domain of information
production generally and the creation of educational resources in particular,
it was less significant.

Software and academic publication, then, offer the two most advanced examples
of commons-based strategies employed in a sector whose outputs are important to
development, in ways that improve access to basic information, knowledge, and
information-embedded tools. Building on these basic cases, we can begin to see
how similar strategies can be employed to [[pg 328]] create a substantial set
of commons-based solutions that could improve the distribution of information
germane to human development.

COMMONS-BASED RESEARCH FOR FOOD AND MEDICINES
.............................................

While computation and access to existing scientific research are important in
the development of any nation, they still operate at a remove from the most
basic needs of the world poor. On its face, it is far from obvious how the
emergence of the networked information economy can grow rice to feed millions
of malnourished children or deliver drugs to millions of HIV/AIDS patients. On
closer observation, however, a tremendous proportion of the way modern
societies grow food and develop medicines is based on scientific research and
technical innovation. We have seen how the functions of mass media can be
fulfilled by nonproprietary models of news and commentary. We have seen the
potential of free and open source software and open-access publications to
replace and redress some of the failures of proprietary software and scientific
publication, respectively. These cases suggest that the basic choice between a
system that depends on exclusive rights and business models that use exclusion
to appropriate research outputs and a system that weaves together various
actors--public and private, organized and individual--in a nonproprietary
social network of innovation, has important implications for the direction of
innovation and for access to its products. Public attention has focused mostly
on the HIV/AIDS crisis in Africa and the lack of access to existing drugs
because of their high costs. However, that crisis is merely the tip of the
iceberg. It is the most visible to many because of the presence of the disease
in rich countries and its cultural and political salience in the United States
and Europe. The exclusive rights system is a poor institutional mechanism for
serving the needs of those who are worst off around the globe. Its weaknesses
pervade the problems of food security and agricultural research aimed at
increasing the supply of nourishing food throughout the developing world, and
of access to medicines in general, and to medicines for developing-world
diseases in particular. Each of these areas has seen a similar shift in
national and international policy toward greater reliance on exclusive rights,
most important of which are patents. Each area has also begun to see the
emergence of commons-based models to alleviate the problems of patents.
However, they differ from each other still. Agriculture offers more immediate
opportunities for improvement [[pg 329]] because of the relatively larger role
of public research--national, international, and academic--and of the long
practices of farmer innovation in seed associations and local and regional
frameworks. I explore it first in some detail, as it offers a template for what
could be a path for development in medical research as well.

FOOD SECURITY: COMMONS-BASED AGRICULTURAL INNOVATION
....................................................

Agricultural innovation over the past century has led to a vast increase in
crop yields. Since the 1960s, innovation aimed at increasing yields and
improving quality has been the centerpiece of efforts to secure the supply of
food to the world's poor, to avoid famine and eliminate chronic malnutrition.
These efforts have produced substantial increases in the production of food and
decreases in its cost, but their benefits have varied widely in different
regions of the world. Now, increases in productivity are not alone a sufficient
condition to prevent famine. Sen's observations that democracies have no
famines--that is, that good government and accountability will force public
efforts to prevent famine--are widely accepted today. The contributions of the
networked information economy to democratic participation and transparency are
discussed in chapters 6-8, and to the extent that those chapters correctly
characterize the changes in political discourse, should help alleviate human
poverty through their effects on democracy. However, the cost and quality of
food available to accountable governments of poor countries, or to
international aid organizations or nongovernment organizations (NGOs) that step
in to try to alleviate the misery caused by ineffective or malicious
governments, affect how much can be done to avoid not only catastrophic famine,
but also chronic malnutrition. Improvements in agriculture make it possible for
anyone addressing food security to perform better than they could have if food
production had lower yields, of less nutritious food, at higher prices. Despite
its potential benefits, however, agricultural innovation has been subject to an
unusual degree of sustained skepticism aimed at the very project of organized
scientific and scientifically based innovation. Criticism combines
biological-ecological concerns with social and economic concerns. Nowhere is
this criticism more strident, or more successful at moving policy, than in
current European resistance to genetically modified (GM) foods. The emergence
of commons-based production strategies can go some way toward allaying the
biological-ecological fears by locating much of the innovation at the local
level. Its primary benefit, however, [[pg 330]] is likely to be in offering a
path for agricultural and biological innovation that is sustainable and low
cost, and that need not result in appropriation of the food production chain by
a small number of multinational businesses, as many critics fear.

Scientific plant improvement in the United States dates back to the
establishment of the U.S. Department of Agriculture, the land-grant
universities, and later the state agricultural experiment stations during the
Civil War and in the decades that followed. Public-sector investment dominated
agricultural research at the time, and with the rediscovery of Mendel's work in
1900, took a turn toward systematic selective breeding. Through crop
improvement associations, seed certification programs, and open-release
policies allowing anyone to breed and sell the certified new seeds, farmers
were provided access to the fruits of public research in a reasonably efficient
and open market. The development of hybrid corn through this system was the
first major modern success that vastly increased agricultural yields. It
reshaped our understanding not only of agriculture, but also more generally of
the value of innovation, by comparison to efficiency, to growth. Yields in the
United States doubled between the mid-1930s and the mid-1950s, and by the
mid-1980s, cornfields had a yield six times greater than they had fifty years
before. Beginning in the early 1960s, with funding from the Rockefeller and
Ford foundations, and continuing over the following forty years, agricultural
research designed to increase the supply of agricultural production and lower
its cost became a central component of international and national policies
aimed at securing the supply of food to the world's poor populations, avoiding
famines and, ultimately, eliminating chronic malnutrition. The International
Rice Research Institute (IRRI) in the Philippines was the first such institute,
founded in the 1960s, followed by the International Center for Wheat and Maize
Improvement (CIM-MYT) in Mexico (1966), and the two institutes for tropical
agriculture in Colombia and Nigeria (1967). Together, these became the
foundation for the Consultative Group for International Agricultural Research
(CGIAR), which now includes sixteen centers. Over the same period, National
Agricultural Research Systems (NARS) also were created around the world,
focusing on research specific to local agroecological conditions. Research in
these centers preceded the biotechnology revolution, and used various
experimental breeding techniques to obtain high-yielding plants: for example,
plants with shorter growing seasons, or more adapted to intensive fertilizer
use. These efforts later introduced varieties [[pg 331]] that were resistant to
local pests, diseases, and to various harsh environmental conditions.

The "Green Revolution," as the introduction of these new,
scientificresearch-based varieties has been called, indeed resulted in
substantial increases in yields, initially in rice and wheat, in Asia and Latin
America. The term "Green Revolution" is often limited to describing these
changes in those regions in the 1960s and 1970s. A recent study shows, however,
that the growth in yields has continued throughout the last forty years, and
has, with varying degrees, occurred around the world.[^114] More than eight
thousand modern varieties of rice, wheat, maize, other major cereals, and root
and protein crops have been released over the course of this period by more
than four hundred public breeding programs. One of the most interesting finds
of this study was that fewer than 1 percent of these modern varieties had any
crosses with public or private breeding programs in the developed world, and
that private-sector contributions in general were limited to hybrid maize,
sorghum, and millet. The effort, in other words, was almost entirely public
sector, and almost entirely based in the developing world, with complementary
efforts of the international and national programs. Yields in Asia increased
sevenfold from 1961 to 2000, and fivefold in Latin America, the Middle
East/North Africa, and Sub-Saharan Africa. More than 60 percent of the growth
in Asia and Latin America occurred in the 1960s?1980s, while the primary growth
in Sub-Saharan Africa began in the 1980s. In Latin America, most of the
early-stage increases in yields came from increasing cultivated areas ( 40
percent), and from other changes in cultivation-- increased use of fertilizer,
mechanization, and irrigation. About 15 percent of the growth in the early
period was attributable to the use of modern varieties. In the latter twenty
years, however, more than 40 percent of the total increase in yields was
attributable to the use of new varieties. In Asia in the early period, about 19
percent of the increase came from modern varieties, but almost the entire rest
of the increase came from increased use of fertilizer, mechanization, and
irrigation, not from increased cultivated areas. It is trivial to see why
changes of this sort would elicit both environmental and a socialeconomic
critique of the industrialization of farm work. Again, though, in the latter
twenty years, 46 percent of the increase in yields is attributable to the use
of modern varieties. Modern varieties played a significantly less prominent
role in the Green Revolution of the Middle East and Africa, contributing 5-6
percent of the growth in yields. In Sub-Saharan Africa, for example, [[pg 332]]
early efforts to introduce varieties from Asia and Latin America failed, and
local developments only began to be adopted in the 1980s. In the latter
twenty-year period, however, the Middle East and North Africa did see a
substantial role for modern varieties--accounting for close to 40 percent of a
more than doubling of yields. In Sub-Saharan Africa, the overwhelming majority
of the tripling of yields came from increasing area of cultivation, and about
16 percent came from modern varieties. Over the past forty years, then,
research-based improvements in plants have come to play a larger role in
increasing agricultural yields in the developing world. Their success was,
however, more limited in the complex and very difficult environments of
SubSaharan Africa. Much of the benefit has to do with local independence, as
opposed to heavier dependence on food imports. Evenson and Gollin, for example,
conservatively estimate that higher prices and a greater reliance on imports in
the developing world in the absence of the Green Revolution would have resulted
in 13-14 percent lower caloric intake in the developing world, and in a 6-8
percent higher proportion of malnourished children. While these numbers may not
seem eye-popping, for populations already living on marginal nutrition, they
represent significant differences in quality of life and in physical and mental
development for millions of children and adults.

The agricultural research that went into much of the Green Revolution did not
involve biotechnology--that is, manipulation of plant varieties at the genetic
level through recombinant DNA techniques. Rather, it occurred at the level of
experimental breeding. In the developed world, however, much of the research
over the past twenty-five years has been focused on the use of biotechnology to
achieve more targeted results than breeding can, has been more heavily based on
private-sector investment, and has resulted in more private-sector ownership
over the innovations. The promise of biotechnology, and particularly of
genetically engineered or modified foods, has been that they could provide
significant improvements in yields as well as in health effects, quality of the
foods grown, and environmental effects. Plants engineered to be pest resistant
could decrease the need to use pesticides, resulting in environmental benefits
and health benefits to farmers. Plants engineered for ever-higher yields
without increasing tilled acreage could limit the pressure for deforestation.
Plants could be engineered to carry specific nutritional supplements, like
golden rice with beta-carotene, so as to introduce necessarily nutritional
requirements into subsistence diets. Beyond the hypothetically optimistic
possibilities, there is little question that genetic engineering has already
produced crops that lower the cost of production [[pg 333]] for farmers by
increasing herbicide and pest tolerance. As of 2002, more than 50 percent of
the world's soybean acreage was covered with genetically modified (GM)
soybeans, and 20 percent with cotton. Twenty-seven percent of acreage covered
with GM crops is in the developing world. This number will grow significantly
now that Brazil has decided to permit the introduction of GM crops, given its
growing agricultural role, and now that India, as the world's largest cotton
producer, has approved the use of Bt cotton--a GM form of cotton that improves
its resistance to a common pest. There are, then, substantial advantages to
farmers, at least, and widespread adoption of GM crops both in the developed
world outside of Europe and in the developing world.

This largely benign story of increasing yields, resistance, and quality has not
been without critics, to put it mildly. The criticism predates biotechnology
and the development of transgenic varieties. Its roots are in criticism of
experimental breeding programs of the American agricultural sectors and the
Green Revolution. However, the greatest public visibility and political success
of these criticisms has been in the context of GM foods. The critique brings
together odd intellectual and political bedfellows, because it includes five
distinct components: social and economic critique of the industrialization of
agriculture, environmental and health effects, consumer preference for
"natural" or artisan production of foodstuffs, and, perhaps to a more limited
extent, protectionism of domestic farm sectors.

Perhaps the oldest component of the critique is the social-economic critique.
One arm of the critique focuses on how mechanization, increased use of
chemicals, and ultimately the use of nonreproducing proprietary seed led to
incorporation of the agricultural sector into the capitalist form of
production. In the United States, even with its large "family farm" sector,
purchased inputs now greatly exceed nonpurchased inputs, production is highly
capital intensive, and large-scale production accounts for the majority of land
tilled and the majority of revenue captured from farming.[^115] In 2003, 56
percent of farms had sales of less than $10,000 a year. Roughly 85 percent of
farms had less than $100,000 in sales.[^116] These farms account for only 42
percent of the farmland. By comparison, 3.4 percent of farms have sales of more
than $500,000 a year, and account for more than 21 percent of land. In the
aggregate, the 7.5 percent of farms with sales over $250,000 account for 37
percent of land cultivated. Of all principal owners of farms in the United
States in 2002, 42.5 percent reported something other than farming as their
principal occupation, and many reported spending two hundred or [[pg 334]] more
days off-farm, or even no work days at all on the farm. The growth of
large-scale "agribusiness," that is, mechanized, rationalized industrial-scale
production of agricultural products, and more important, of agricultural
inputs, is seen as replacing the family farm and the small-scale,
self-sufficient farm, and bringing farm labor into the capitalist mode of
production. As scientific development of seeds and chemical applications
increases, the seed as input becomes separated from the grain as output, making
farmers dependent on the purchase of industrially produced seed. This further
removes farmwork from traditional modes of self-sufficiency and craftlike
production to an industrial mode. This basic dynamic is repeated in the
critique of the Green Revolution, with the added overlay that the industrial
producers of seed are seen to be multinational corporations, and the
industrialization of agriculture is seen as creating dependencies in the
periphery on the industrial-scientific core of the global economy.

The social-economic critique has been enmeshed, as a political matter, with
environmental, health, and consumer-oriented critiques as well. The
environmental critiques focus on describing the products of science as
monocultures, which, lacking the genetic diversity of locally used varieties,
are more susceptible to catastrophic failure. Critics also fear contamination
of existing varieties, unpredictable interactions with pests, and negative
effects on indigenous species. The health effects concern focused initially on
how breeding for yield may have decreased nutritional content, and in the more
recent GM food debates, the concern that genetically altered foods will have
some unanticipated negative health reactions that would only become apparent
many years from now. The consumer concerns have to do with quality and an
aesthetic attraction to artisan-mode agricultural products and aversion to
eating industrial outputs. These social-economic and
environmental-health-consumer concerns tend also to be aligned with
protectionist lobbies, not only for economic purposes, but also reflecting a
strong cultural attachment to the farming landscape and human ecology,
particularly in Europe.

This combination of social-economic and postcolonial critique,
environmentalism, public-health concerns, consumer advocacy, and farm-sector
protectionism against the relatively industrialized American agricultural
sector reached a height of success in the 1999 five-year ban imposed by the
European Union on all GM food sales. A recent study of a governmental Science
Review Board in the United Kingdom, however, found that there was no [[pg 335]]
evidence for any of the environmental or health critiques of GM foods.[^117]
Indeed, as Peter Pringle masterfully chronicled in Food, Inc., both sides of
the political debate could be described as having buffed their cases
significantly. The successes and potential benefits have undoubtedly been
overstated by enamored scientists and avaricious vendors. There is little
doubt, too, that the near-hysterical pitch at which the failures and risks of
GM foods have been trumpeted has little science to back it, and the debate has
degenerated to a state that makes reasoned, evidence-based consideration
difficult. In Europe in general, however, there is wide acceptance of what is
called a "precautionary principle." One way of putting it is that absence of
evidence of harm is not evidence of absence of harm, and caution counsels
against adoption of the new and at least theoretically dangerous. It was this
precautionary principle rather than evidence of harm that was at the base of
the European ban. This ban has recently been lifted, in the wake of a WTO trade
dispute with the United States and other major producers who challenged the ban
as a trade barrier. However, the European Union retained strict labeling
requirements. This battle among wealthy countries, between the conservative
"Fortress Europe" mentality and the growing reliance of American agriculture on
biotechnological innovation, would have little moral valence if it did not
affect funding for, and availability of, biotechnological research for the
populations of the developing world. Partly as a consequence of the strong
European resistance to GM foods, the international agricultural research
centers that led the way in the development of the Green Revolution varieties,
and that released their developments freely for anyone to sell and use without
proprietary constraint, were slow to develop capacity in genetic engineering
and biotechnological research more generally. Rather than the public national
and international efforts leading the way, a study of GM use in developing
nations concluded that practically all GM acreage is sown with seed obtained in
the finished form from a developed-world supplier, for a price premium or
technology licensing fee.[^118] The seed, and its improvements, is proprietary
to the vendor in this model. It is not supplied in a form or with the rights to
further improve locally and independently. Because of the critique of
innovation in agriculture as part of the process of globalization and
industrialization, of environmental degradation, and of consumer exploitation,
the political forces that would have been most likely to support public-sector
investment in agricultural innovation are in opposition to such investments.
The result has not been retardation of biotechnological innovation [[pg 336]]
in agriculture, but its increasing privatization: primarily in the United
States and now increasingly in Latin America, whose role in global agricultural
production is growing.

Private-sector investment, in turn, operates within a system of patents and
other breeders' exclusive rights, whose general theoretical limitations are
discussed in chapter 2. In agriculture, this has two distinct but mutually
reinforcing implications. The first is that, while private-sector innovation
has indeed accounted for most genetically engineered crops in the developing
world, research aimed at improving agricultural production in the neediest
places has not been significantly pursued by the major private-sector firms. A
sector based on expectation of sales of products embedding its patents will not
focus its research where human welfare will be most enhanced. It will focus
where human welfare can best be expressed in monetary terms. The poor are
systematically underserved by such a system. It is intended to elicit
investments in research in directions that investors believe will result in
outputs that serve the needs of those with the highest willingness and ability
to pay for their outputs. The second is that even where the products of
innovation can, as a matter of biological characteristics, be taken as inputs
into local research and development--by farmers or by national agricultural
research systems--the international system of patents and plant breeders'
rights enforcement makes it illegal to do so without a license. This again
retards the ability of poor countries and their farmers and research institutes
to conduct research into local adaptations of improved crops.

The central question raised by the increasing privatization of agricultural
biotechnology over the past twenty years is: What can be done to employ
commons-based strategies to provide a foundation for research that will be
focused on the food security of developing world populations? Is there a way of
managing innovation in this sector so that it will not be heavily weighted in
favor of populations with a higher ability to pay, and so that its outputs
allow farmers and national research efforts to improve and adapt to highly
variable local agroecological environments? The continued presence of the
public-sector research infrastructure--including the international and national
research centers, universities, and NGOs dedicated to the problem of food
security--and the potential of harnessing individual farmers and scientists to
cooperative development of open biological innovation for agriculture suggest
that commons-based paths for development in the area of food security and
agricultural innovation are indeed feasible.

First, some of the largest and most rapidly developing nations that still [[pg
337]] have large poor populations--most prominently, China, India, and Brazil--
can achieve significant advances through their own national agricultural
research systems. Their research can, in turn, provide a platform for further
innovation and adaptation by projects in poorer national systems, as well as in
nongovernmental public and peer-production efforts. In this regard, China seems
to be leading the way. The first rice genome to be sequenced was japonica,
apparently sequenced in 2000 by scientists at Monsanto, but not published. The
second, an independent and published sequence of japonica, was sequenced by
scientists at Syngenta, and published as the first published rice genome
sequence in Science in April 2002. To protect its proprietary interests,
Syngenta entered a special agreement with Science, which permitted the authors
not to deposit the genomic information into the public Genbank maintained by
the National Institutes of Health in the United States.[^119] Depositing the
information in GenBank makes it immediately available for other scientists to
work with freely. All the major scientific publications require that such
information be deposited and made publicly available as a standard condition of
publication, but Science waved this requirement for the Syngenta japonica
sequence. The same issue of Science, however, carried a similar publication,
the sequence of Oryza sativa L.ssp. indica, the most widely cultivated
subspecies in China. This was sequenced by a public Chinese effort, and its
outputs were immediately deposited in GenBank. The simultaneous publication of
the rice genome by a major private firm and a Chinese public effort was the
first public exposure to the enormous advances that China's public sector has
made in agricultural biotechnology, and its focus first and foremost on
improving Chinese agriculture. While its investments are still an order of
magnitude smaller than those of public and private sectors in the developed
countries, China has been reported as the source of more than half of all
expenditures in the developing world.[^120] China's longest experience with GM
agriculture is with Bt cotton, which was introduced in 1997. By 2000, 20
percent of China's cotton acreage was sown to Bt cotton. One study showed that
the average acreage of a farm was less than 0.5 hectare of cotton, and the
trait that was most valuable to them was Bt cotton's reduced pesticide needs.
Those who adopted Bt cotton used less pesticide, reducing labor for pest
control and the pesticide cost per kilogram of cotton produced. This allowed an
average cost savings of 28 percent. Another effect suggested by survey
data--which, if confirmed over time, would be very important as a matter of
public health, but also to the political economy of the agricultural
biotechnology debate--is that farmers [[pg 338]] who do not use Bt cotton are
four times as likely to report symptoms of a degree of toxic exposure following
application of pesticides than farmers who did adopt Bt cotton.[^121] The point
is not, of course, to sing the praises of GM cotton or the Chinese research
system. China's efforts offer an example of how the larger national research
systems can provide an anchor for agricultural research, providing solutions
both for their own populations, and, by making the products of their research
publicly and freely available, offer a foundation for the work of others.

Alongside the national efforts in developing nations, there are two major paths
for commons-based research and development in agriculture that could serve the
developing world more generally. The first is based on existing research
institutes and programs cooperating to build a commons-based system, cleared of
the barriers of patents and breeders' rights, outside and alongside the
proprietary system. The second is based on the kind of loose affiliation of
university scientists, nongovernmental organizations, and individuals that we
saw play such a significant role in the development of free and open-source
software. The most promising current efforts in the former vein are the PIPRA
(Public Intellectual Property for Agriculture) coalition of public-sector
universities in the United States, and, if it delivers on its theoretical
promises, the Generation Challenge Program led by CGIAR (the Consultative Group
on International Agricultural Research). The most promising model of the
latter, and probably the most ambitious commons-based project for biological
innovation currently contemplated, is BIOS (Biological Innovation for an Open
Society).

PIPRA is a collaboration effort among public-sector universities and
agricultural research institutes in the United States, aimed at managing their
rights portfolio in a way that will give their own and other researchers
freedom to operate in an institutional ecology increasingly populated by
patents and other rights that make work difficult. The basic thesis and
underlying problem that led to PIPRA's founding were expressed in an article in
Science coauthored by fourteen university presidents.[^122] They underscored
the centrality of public-sector, land-grant university-based research to
American agriculture, and the shift over the last twenty-five years toward
increased use of intellectual property rules to cover basic discoveries and
tools necessary for agricultural innovation. These strategies have been adopted
by both commercial firms and, increasingly, by public-sector universities as
the primary mechanism for technology transfer from the scientific institute to
the commercializing firms. The problem they saw was that in agricultural
research, [[pg 339]] innovation was incremental. It relies on access to
existing germplasm and crop varieties that, with each generation of innovation,
brought with them an ever-increasing set of intellectual property claims that
had to be licensed in order to obtain permission to innovate further. The
universities decided to use the power that ownership over roughly 24 percent of
the patents in agricultural biotechnology innovations provides them as a lever
with which to unravel the patent thickets and to reduce the barriers to
research that they increasingly found themselves dealing with. The main story,
one might say the "founding myth" of PIPRA, was the story of golden rice.
Golden rice is a variety of rice that was engineered to provide dietary vitamin
A. It was developed with the hope that it could introduce vitamin A supplement
to populations in which vitamin A deficiency causes roughly 500,000 cases of
blindness a year and contributes to more than 2 million deaths a year. However,
when it came to translating the research into deliverable plants, the
developers encountered more than seventy patents in a number of countries and
six materials transfer agreements that restricted the work and delayed it
substantially. PIPRA was launched as an effort of public-sector universities to
cooperate in achieving two core goals that would respond to this type of
barrier--preserving the right to pursue applications to subsistence crops and
other developing-world-related crops, and preserving their own freedom to
operate vis-a-vis each other's patent portfolios.

The basic insight of PIPRA, which can serve as a model for university alliances
in the context of the development of medicines as well as agriculture, is that
universities are not profit-seeking enterprises, and university scientists are
not primarily driven by a profit motive. In a system that offers opportunities
for academic and business tracks for people with similar basic skills, academia
tends to attract those who are more driven by nonmonetary motivations. While
universities have invested a good deal of time and money since the Bayh-Dole
Act of 1980 permitted and indeed encouraged them to patent innovations
developed with public funding, patent and other exclusive-rights-based revenues
have not generally emerged as an important part of the revenue scheme of
universities. As table 9.2 shows, except for one or two outliers, patent
revenues have been all but negligible in university budgets.[^123] This fact
makes it fiscally feasible for universities to use their patent portfolios to
maximize the global social benefit of their research, rather than trying to
maximize patent revenue. In particular, universities can aim to include
provisions in their technology licensing agreements that are aimed at the dual
goals of (a) delivering products embedding their innovations [[pg 340]] to
developing nations at reasonable prices and (b) providing researchers and plant
breeders the freedom to operate that would allow them to research, develop, and
ultimately produce crops that would improve food security in the developing
world.

*Table 9.2: Selected University Gross Revenues and Patent Licensing Revenues*

.┆Total Revenues (millions)┆Licensing & Royalties (mil.)┆Licensing & Royalties (% of total)┆Gov. Grants & Contracts (mil.)┆Gov. Grants & Contracts (% of total)
All universities┆$227,000┆$1270┆0.56%┆$31,430┆13.85%
University of Columbia┆$2,074┆$178.4 $100-120a┆8.6% 4.9-5.9%┆$532┆25.65%
University of California┆$14,166┆$81.3 $55(net)b┆0.57% 0.39%┆$2372┆16.74%
Stanford University┆$3,475┆$43.3 $36.8c┆1.25% 1.06%┆$860┆24.75%
Florida State┆$2,646┆$35.6┆1.35%┆$238┆8.99%
University of Wisconsin Madison┆$1,696┆$32┆1.89%┆$417.4┆24.61%
University of Minnesota┆$1,237┆$38.7┆3.12%┆$323.5┆26.15%
Harvard┆$2,473┆$47.9┆1.94%┆$416 $548.7d┆16.82% 22.19%
Cal Tech┆$531┆$26.7e $15.7f┆5.02% 2.95%┆$268┆50.47%

Sources: Aggregate revenues: U.S. Dept. of Education, National Center for
Education Statistics, Enrollment in Postsecondary Institutions, Fall 2001, and
Financial Statistics, Fiscal Year 2001 (2003), Table F; Association of
University Technology Management, Annual Survey Summary FY 2002 (AUTM 2003),
Table S-12. Individual institutions: publicly available annual reports of each
university and/or its technology transfer office for FY 2003.

Notes:
a. Large ambiguity results because technology transfer office reports increased
revenues for yearend 2003 as $178M without reporting expenses; University
Annual Report reports licensing revenue with all "revenue from other
educational and research activities," and reports a 10 percent decline in this
category, "reflecting an anticipated decline in royalty and license income"
from the $133M for the previous year-end, 2002. The table reflects an assumed
net contribution to university revenues between $100-120M (the entire decline
in the category due to royalty/royalties decreased proportionately with the
category).
b. University of California Annual Report of the Office of Technology Transfer
is more transparent than most in providing expenses--both net legal expenses
and tech transfer direct operating expenses, which allows a clear separation of
net revenues from technology transfer activities.
c. Minus direct expenses, not including expenses for unlicensed inventions.
d. Federal- and nonfederal-sponsored research.
e. Almost half of this amount is in income from a single Initial Public
Offering, and therefore does not represent a recurring source of licensing
revenue.
f. Technology transfer gross revenue minus the one-time event of an initial
public offering of LiquidMetal Technologies.

While PIPRA shows an avenue for collaboration among universities in the public
interest, it is an avenue that does not specifically rely on, or benefit in
great measure from, the information networks or the networked information
economy. It continues to rely on the traditional model of publicly funded
research. More explicit in its effort to leverage the cost savings made
possible by networked information systems is the Generation Challenge Program
(GCP). The GCP is an effort to bring the CGIAR into the biotechnology sphere,
carefully, given the political resistance to genetically modified foods, and
quickly, given the already relatively late start that the international
research centers have had in this area. Its stated emphasis is on building an
architecture of innovation, or network of research relationships, that will
provide low-cost techniques for the basic contemporary technologies of
agricultural research. The program has five primary foci, but the basic thrust
is to generate improvements both in basic genomics science and in breeding and
farmer education, in both cases for developing world agriculture. One early
focus would be on building a communications system that allows participating
institutions and scientists to move information efficiently and utilize
computational resources to pursue research. There are hundreds of thousands of
samples of germplasm, from "landrace" (that is, locally agriculturally
developed) and wild varieties to modern varieties, located in databases around
the world in international, national, and academic institutions. There are
tremendous high-capacity computation resources in some of the most advanced
research institutes, but not in many of the national and international
programs. One of the major goals articulated for the GCP is to develop
Web-based interfaces to share these data and computational resources. Another
is to provide a platform for sharing new questions and directions of research
among participants. The work in this network will, in turn, rely on materials
that have proprietary interests attached to them, and will produce outputs that
could have proprietary interests attached to them as well. Just like the
universities, the GCP institutes (national, international, and nonprofit) are
looking for an approach aimed to secure open access to research materials and
tools and to provide humanitarian access to its products, particularly for
subsistence crop development and use. As of this writing, however, the GCP is
still in a formative stage, more an aspiration than [[pg 342]] a working model.
Whether it will succeed in overcoming the political constraints placed on the
CGIAR as well as the relative latecomer status of the international public
efforts to this area of work remains to be seen. But the elements of the GCP
certainly exhibit an understanding of the possibilities presented by
commons-based networked collaboration, and an ambition to both build upon them
and contribute to their development.

The most ambitious effort to create a commons-based framework for biological
innovation in this field is BIOS. BIOS is an initiative of CAMBIA (Center for
the Application of Molecular Biology to International Agriculture), a nonprofit
agricultural research institute based in Australia, which was founded and is
directed by Richard Jefferson, a pioneer in plant biotechnology. BIOS is based
on the observation that much of contemporary agricultural research depends on
access to tools and enabling technologies-- such as mechanisms to identify
genes or for transferring them into target plants. When these tools are
appropriated by a small number of firms and available only as part of
capital-intensive production techniques, they cannot serve as the basis for
innovation at the local level or for research organized on nonproprietary
models. One of the core insights driving the BIOS initiative is the recognition
that when a subset of necessary tools is available in the public domain, but
other critical tools are not, the owners of those tools appropriate the full
benefits of public domain innovation without at the same time changing the
basic structural barriers to use of the proprietary technology. To overcome
these problems, the BIOS initiative includes both a strong informatics
component and a fairly ambitious "copyleft"-like model (similar to the GPL
described in chapter 3) of licensing CAMBIA's basic tools and those of other
members of the BIOS initiative. The informatics component builds on a patent
database that has been developed by CAMBIA for a number of years, and whose
ambition is to provide as complete as possible a dataset of who owns what
tools, what the contours of ownership are, and by implication, who needs to be
negotiated with and where research paths might emerge that are not yet
appropriated and therefore may be open to unrestricted innovation.

The licensing or pooling component is more proactive, and is likely the most
significant of the project. BIOS is setting up a licensing and pooling
arrangement, "primed" by CAMBIA's own significant innovations in tools, which
are licensed to all of the initiative's participants on a free model, with
grant-back provisions that perform an openness-binding function similar to
copyleft.[^124] In coarse terms, this means that anyone who builds upon the
[[pg 343]] contributions of others must contribute improvements back to the
other participants. One aspect of this model is that it does not assume that
all research comes from academic institutions or from traditional
governmentfunded, nongovernmental, or intergovernmental research institutes. It
tries to create a framework that, like the open-source development community,
engages commercial and noncommercial, public and private, organized and
individual participants into a cooperative research network. The platform for
this collaboration is "BioForge," styled after Sourceforge, one of the major
free and open-source software development platforms. The commitment to engage
many different innovators is most clearly seen in the efforts of BIOS to
include major international commercial providers and local potential commercial
breeders alongside the more likely targets of a commons-based initiative.
Central to this move is the belief that in agricultural science, the basic
tools can, although this may be hard, be separated from specific applications
or products. All actors, including the commercial ones, therefore have an
interest in the open and efficient development of tools, leaving competition
and profit making for the market in applications. At the other end of the
spectrum, BIOS's focus on making tools freely available is built on the
proposition that innovation for food security involves more than biotechnology
alone. It involves environmental management, locale-specific adaptations, and
social and economic adoption in forms that are locally and internally
sustainable, as opposed to dependent on a constant inflow of commoditized seed
and other inputs. The range of participants is, then, much wider than
envisioned by PIPRA or the GCP. It ranges from multinational corporations
through academic scientists, to farmers and local associations, pooling their
efforts in a communications platform and institutional model that is very
similar to the way in which the GNU/Linux operating system has been developed.
As of this writing, the BIOS project is still in its early infancy, and cannot
be evaluated by its outputs. However, its structure offers the crispest example
of the extent to which the peer-production model in particular, and
commons-based production more generally, can be transposed into other areas of
innovation at the very heart of what makes for human development--the ability
to feed oneself adequately.

PIPRA and the BIOS initiative are the most salient examples of, and the most
significant first steps in the development of commons-based strategies to
achieve food security. Their vitality and necessity challenge the conventional
wisdom that ever-increasing intellectual property rights are necessary to
secure greater investment in research, or that the adoption of proprietary [[pg
344]] rights is benign. Increasing appropriation of basic tools and enabling
technologies creates barriers to entry for innovators--public-sector, nonprofit
organizations, and the local farmers themselves--concerned with feeding those
who cannot signal with their dollars that they are in need. The emergence of
commons-based techniques--particularly, of an open innovation platform that can
incorporate farmers and local agronomists from around the world into the
development and feedback process through networked collaboration
platforms--promises the most likely avenue to achieve research oriented toward
increased food security in the developing world. It promises a mechanism of
development that will not increase the relative weight and control of a small
number of commercial firms that specialize in agricultural production. It will
instead release the products of innovation into a selfbinding commons--one that
is institutionally designed to defend itself against appropriation. It promises
an iterative collaboration platform that would be able to collect environmental
and local feedback in the way that a free software development project collects
bug reports--through a continuous process of networked conversation among the
user-innovators themselves. In combination with public investments from
national governments in the developing world, from the developed world, and
from more traditional international research centers, agricultural research for
food security may be on a path of development toward constructing a sustainable
commons-based innovation ecology alongside the proprietary system. Whether it
follows this path will be partly a function of the engagement of the actors
themselves, but partly a function of the extent to which the international
intellectual property/trade system will refrain from raising obstacles to the
emergence of these commons-based efforts.

ACCESS TO MEDICINES: COMMONS-BASED STRATEGIES FOR BIOMEDICAL RESEARCH
.....................................................................

Nothing has played a more important role in exposing the systematic problems
that the international trade and patent system presents for human development
than access to medicines for HIV/AIDS. This is so for a number of reasons.
First, HIV/AIDS has reached pandemic proportions. One quarter of all deaths
from infectious and parasitic diseases in 2002 were caused by AIDS, accounting
for almost 5 percent of all deaths in the world that year.[^125] Second, it is
a new condition, unknown to medicine a mere twenty-five years ago, is
communicable, and in principle is of a type--infectious diseases--that we have
come to see modern medicine as capable of solving. [[pg 345]] This makes it
different from much bigger killers--like the many cancers and forms of heart
disease--which account for about nine times as many deaths globally. Third, it
has a significant presence in the advanced economies. Because it was perceived
there as a disease primarily affecting the gay community, it had a strong and
well-defined political lobby and high cultural salience. Fourth, and finally,
there have indeed been enormous advances in the development of medicines for
HIV/AIDS. Mortality for patients who are treated is therefore much lower than
for those who are not. These treatments are new, under patent, and enormously
expensive. As a result, death-- as opposed to chronic illness--has become
overwhelmingly a consequence of poverty. More than 75 percent of deaths caused
by AIDS in 2002 were in Africa. HIV/AIDS drugs offer a vivid example of an
instance where drugs exist for a disease but cannot be afforded in the poorest
countries. They represent, however, only a part, and perhaps the smaller part,
of the limitations that a patent-based drug development system presents for
providing medicines to the poor. No less important is the absence of a market
pull for drugs aimed at diseases that are solely or primarily developing-world
diseases--like drugs for tropical diseases, or the still-elusive malaria
vaccine.

To the extent that the United States and Europe are creating a global
innovation system that relies on patents and market incentives as its primary
driver of research and innovation, these wealthy democracies are, of necessity,
choosing to neglect diseases that disproportionately affect the poor. There is
nothing evil about a pharmaceutical company that is responsible to its
shareholders deciding to invest where it expects to reap profit. It is not
immoral for a firm to invest its research funds in finding a drug to treat
acne, which might affect 20 million teenagers in the United States, rather than
a drug that will cure African sleeping sickness, which affects 66 million
Africans and kills about fifty thousand every year. If there is immorality to
be found, it is in the legal and policy system that relies heavily on the
patent system to induce drug discovery and development, and does not adequately
fund and organize biomedical research to solve the problems that cannot be
solved by relying solely on market pull. However, the politics of public
response to patents for drugs are similar in structure to those that have to do
with agricultural biotechnology exclusive rights. There is a very strong
patentbased industry--much stronger than in any other patent-sensitive area.
The rents from strong patents are enormous, and a rational monopolist will pay
up to the value of its rents to maintain and improve its monopoly. The primary
potential political push-back in the pharmaceutical area, which does [[pg 346]]
not exist in the agricultural innovation area, is that the exorbitant costs of
drugs developed under this system is hurting even the well-endowed purses of
developed-world populations. The policy battles in the United States and
throughout the developed world around drug cost containment may yet result in a
sufficient loosening of the patent constraints to deliver positive side effects
for the developing world. However, they may also work in the opposite
direction. The unwillingness of the wealthy populations in the developed world
to pay high rents for drugs retards the most immediate path to lower-cost drugs
in the developing world--simple subsidy of below-cost sales in poor countries
cross-subsidized by above-cost rents in wealthy countries.

The industrial structure of biomedical research and pharmaceutical development
is different from that of agricultural science in ways that still leave a
substantial potential role for commons-based strategies. However, these would
be differently organized and aligned than in agriculture. First, while
governments play an enormous role in funding basic biomedical science, there
are no real equivalents of the national and international agricultural research
institutes. In other words, there are few public-sector laboratories that
actually produce finished drugs for delivery in the developing world, on the
model of the International Rice Research Institute or one of the national
agricultural research systems. On the other hand, there is a thriving generics
industry, based in both advanced and developing economies, that stands ready to
produce drugs once these are researched. The primary constraint on harnessing
its capacity for low-cost drug production and delivery for poorer nations is
the international intellectual property system. The other major difference is
that, unlike with software, scientific publication, or farmers in agriculture,
there is no existing framework for individuals to participate in research and
development on drugs and treatments. The primary potential source of
nongovernmental investment of effort and thought into biomedical research and
development are universities as institutions and scientists, if they choose to
organize themselves into effective peer-production communities.

Universities and scientists have two complementary paths open to them to pursue
commons-based strategies to provide improved research on the relatively
neglected diseases of the poor and improved access to existing drugs that are
available in the developed world but unaffordable in the developing. The first
involves leveraging existing university patent portfolios--much as the
universities allied in PIPRA are exploring and as CAMBIA is doing more [[pg
347]] aggressively. The second involves work in an entirely new
model--constructing collaboration platforms to allow scientists to engage in
peer production, cross-cutting the traditional grant-funded lab, and aiming
toward research into diseases that do not exercise a market pull on the
biomedical research system in the advanced economies.

/Leveraging University Patents/. In February 2001, the humanitarian
organization Doctors Without Borders (also known as Medecins Sans Frontieres,
or MSF) asked Yale University, which held the key South African patent on
stavudine--one of the drugs then most commonly used in combination
therapies--for permission to use generic versions in a pilot AIDS treatment
program. At the time, the licensed version of the drug, sold by
Bristol-MyersSquibb (BMS), cost $1,600 per patient per year. A generic version,
manufactured in India, was available for $47 per patient per year. At that
point in history, thirty-nine drug manufacturers were suing the South African
government to strike down a law permitting importation of generics in a health
crisis, and no drug company had yet made concessions on pricing in developing
nations. Within weeks of receiving MSF's request, Yale negotiated with BMS to
secure the sale of stavudine for fifty-five dollars a year in South Africa.
Yale, the University of California at Berkeley, and other universities have, in
the years since, entered into similar ad hoc agreements with regard to
developing-world applications or distribution of drugs that depend on their
patented technologies. These successes provide a template for a much broader
realignment of how universities use their patent portfolios to alleviate the
problems of access to medicines in developing nations.

We have already seen in table 9.2 that while universities own a substantial and
increasing number of patents, they do not fiscally depend in any significant
way on patent revenue. These play a very small part in the overall scheme of
revenues. This makes it practical for universities to reconsider how they use
their patents and to reorient toward using them to maximize their beneficial
effects on equitable access to pharmaceuticals developed in the advanced
economies. Two distinct moves are necessary to harness publicly funded
university research toward building an information commons that is easily
accessible for global redistribution. The first is internal to the university
process itself. The second has to do with the interface between the university
and patent-dependent and similar exclusive-rights-dependent market actors.

Universities are internally conflicted about their public and market goals.
[[pg 348]] Dating back to the passage of the Bayh-Dole Act, universities have
increased their patenting practices for the products of publicly funded
research. Technology transfer offices that have been set up to facilitate this
practice are, in many cases, measured by the number of patent applications,
grants, and dollars they bring in to the university. These metrics for
measuring the success of these offices tend to make them function, and
understand their role, in a way that is parallel to exclusive-rights-dependent
market actors, instead of as public-sector, publicly funded, and publicly
minded institutions. A technology transfer officer who has successfully
provided a royalty-free license to a nonprofit concerned with developing
nations has no obvious metric in which to record and report the magnitude of
her success (saving X millions of lives or displacing Y misery), unlike her
colleague who can readily report X millions of dollars from a market-oriented
license, or even merely Y dozens of patents filed. Universities must consider
more explicitly their special role in the global information and knowledge
production system. If they recommit to a role focused on serving the
improvement of the lot of humanity, rather than maximization of their revenue
stream, they should adapt their patenting and licensing practices
appropriately. In particular, it will be important following such a
rededication to redefine the role of technology transfer offices in terms of
lives saved, quality-of-life measures improved, or similar substantive measures
that reflect the mission of university research, rather than the present
metrics borrowed from the very different world of patent-dependent market
production. While the internal process is culturally and politically difficult,
it is not, in fact, analytically or technically complex. Universities have, for
a very long time, seen themselves primarily as dedicated to the advancement of
knowledge and human welfare through basic research, reasoned inquiry, and
education. The long-standing social traditions of science have always stood
apart from market incentives and orientations. The problem is therefore one of
reawakening slightly dormant cultural norms and understandings, rather than
creating new ones in the teeth of long-standing contrary traditions. The
problem should be substantially simpler than, say, persuading companies that
traditionally thought of their innovation in terms of patents granted or
royalties claimed, as some technology industry participants have, to adopt free
software strategies.

If universities do make the change, then the more complex problem will remain:
designing an institutional interface between universities and the
pharmaceutical industry that will provide sustainable significant benefits for
developing-world distribution of drugs and for research opportunities into [[pg
349]] developing-world diseases. As we already saw in the context of
agriculture, patents create two discrete kinds of barriers: The first is on
distribution, because of the monopoly pricing power they purposefully confer on
their owners. The second is on research that requires access to tools, enabling
technologies, data, and materials generated by the developed-world research
process, and that could be useful to research on developing-world diseases.
Universities working alone will not provide access to drugs. While universities
perform more than half of the basic scientific research in the United States,
this effort means that more than 93 percent of university research expenditures
go to basic and applied science, leaving less than 7 percent for
development--the final research necessary to convert a scientific project into
a usable product.[^126] Universities therefore cannot simply release their own
patents and expect treatments based on their technologies to become accessible.
Instead, a change is necessary in licensing practices that takes an approach
similar to a synthesis of the general public license (GPL), of BIOS's licensing
approach, and PIPRA.

Universities working together can cooperate to include in their licenses
provisions that would secure freedom to operate for anyone conducting research
into developing-world diseases or production for distribution in poorer
nations. The institutional details of such a licensing regime are relatively
complex and arcane, but efforts are, in fact, under way to develop such
licenses and to have them adopted by universities.[^127] What is important
here, for understanding the potential, is the basic idea and framework. In
exchange for access to the university's patents, the pharmaceutical licensees
will agree not to assert any of their own rights in drugs that require a
university license against generics manufacturers who make generic versions of
those drugs purely for distribution in low- and middle-income countries. An
Indian or American generics manufacturer could produce patented drugs that
relied on university patents and were licensed under this kind of an
equitable-access license, as long as it distributed its products solely in poor
countries. A government or nonprofit research institute operating in South
Africa could work with patented research tools without concern that doing so
would violate the patents. However, neither could then import the products of
their production or research into the developed world without violating the
patents of both the university and the drug company. The licenses would create
a mechanism for redistribution of drug products and research tools from the
developed economies to the developing. It would do so without requiring the
kind of regulatory changes advocated by others, such as [[pg 350]] Jean
Lanjouw, who have advocated policy changes aimed similarly to achieve
differential pricing in the developing and developed worlds.24 Because this
redistribution could be achieved by universities acting through licensing,
instead of through changes in law, it offers a more feasible political path for
achieving the desired result. Such action by universities would, of course, not
solve all the problems of access to medicines. First, not all health-related
products are based on university research. Second, patents do not account for
all, or perhaps even most, of the reason that patients in poor nations are not
treated. A lack of delivery infrastructure, public-health monitoring and care,
and stable conditions to implement disease-control policy likely weigh more
heavily. Nonetheless, there are successful and stable government and nonprofit
programs that could treat hundreds of thousands or millions of patients more
than they do now, if the cost of drugs were lower. Achieving improved access
for those patients seems a goal worthy of pursuit, even if it is no magic
bullet to solve all the illnesses of poverty.

/Nonprofit Research/. Even a successful campaign to change the licensing
practices of universities in order to achieve inexpensive access to the
products of pharmaceutical research would leave the problem of research into
diseases that affect primarily the poor. This is because, unless universities
themselves undertake the development process, the patent-based pharmaceuticals
have no reason to. The "simple" answer to this problem is more funding from the
public sector or foundations for both basic research and development. This
avenue has made some progress, and some foundations--particularly, in recent
years, the Gates Foundation--have invested enormous amounts of money in
searching for cures and improving basic public-health conditions of disease in
Africa and elsewhere in the developing world. It has received a particularly
interesting boost since 2000, with the founding of the Institute for One World
Health, a nonprofit pharmaceutical dedicated to research and development
specifically into developing-world diseases. The basic model of One World
Health begins by taking contributions of drug leads that are deemed
unprofitable by the pharmaceutical industry--from both universities and
pharmaceutical companies. The firms have no reason not to contribute their
patents on leads purely for purposes they do not intend to pursue. The group
then relies on foundation and public-sector funding to perform synthesis,
preclinical and clinical trials, in collaboration with research centers in the
United States, India, Bangladesh, and Thailand, and when the time comes around
for manufacturing, the institute collaborates with manufacturers [[pg 351]] in
developing nations to produce low-cost instances of the drugs, and with
government and NGO public-health providers to organize distribution. This model
is new, and has not yet had enough time to mature and provide measurable
success. However, it is promising.

/Peer Production of Drug Research and Development/. Scientists,
scientists-intraining, and to some extent, nonscientists can complement
university licensing practices and formally organized nonprofit efforts as a
third component of the ecology of commons-based producers. The initial response
to the notion that peer production can be used for drug development is that the
process is too complex, expensive, and time consuming to succumb to
commons-based strategies. This may, at the end of the day, prove true. However,
this was also thought of complex software projects or of supercomputing, until
free software and distributed computing projects like SETI@Home and
Folding@Home came along and proved them wrong. The basic point is to see how
distributed nonmarket efforts are organized, and to see how the scientific
production process can be broken up to fit a peer-production model.

First, anything that can be done through computer modeling or data analysis
can, in principle, be done on a peer-production basis. Increasing portions of
biomedical research are done today through modeling, computer simulation, and
data analysis of the large and growing databases, including a wide range of
genetic, chemical, and biological information. As more of the process of drug
discovery of potential leads can be done by modeling and computational
analysis, more can be organized for peer production. The relevant model here is
open bioinformatics. Bioinformatics generally is the practice of pursuing
solutions to biological questions using mathematics and information technology.
Open bioinformatics is a movement within bioinformatics aimed at developing the
tools in an open-source model, and in providing access to the tools and the
outputs on a free and open basis. Projects like these include the Ensmbl Genome
Browser, operated by the European Bioinformatics Institute and the Sanger
Centre, or the National Center for Biotechnology Information (NCBI), both of
which use computer databases to provide access to data and to run various
searches on combinations, patterns, and so forth, in the data. In both cases,
access to the data and the value-adding functionalities are free. The software
too is developed on a free software model. These, in turn, are complemented by
database policies like those of the International HapMap Project, an effort to
map [[pg 352]] common variations in the human genome, whose participants have
committed to releasing all the data they collect freely into the public domain.
The economics of this portion of research into drugs are very similar to the
economics of software and computation. The models are just software. Some
models will be able to run on the ever-more-powerful basic machines that the
scientists themselves use. However, anything that requires serious computation
could be modeled for distributed computing. This would allow projects to
harness volunteer computation resources, like Folding@Home, Genome@Home, or
FightAIDS@Home--sites that already harness the computing power of hundreds of
thousands of users to attack biomedical science questions. This stage of the
process is the one that most directly can be translated into a peer-production
model, and, in fact, there have been proposals, such as the Tropical Disease
Initiative proposed by Maurer, Sali, and Rai.[^128]

Second, and more complex, is the problem of building wet-lab science on a
peer-production basis. Some efforts would have to focus on the basic science.
Some might be at the phase of optimization and chemical synthesis. Some, even
more ambitiously, would be at the stage of preclinical animal trials and even
clinical trials. The wet lab seems to present an insurmountable obstacle for a
serious role for peer production in biomedical science. Nevertheless, it is not
clear that it is actually any more so than it might have seemed for the
development of an operating system, or a supercomputer, before these were
achieved. Laboratories have two immensely valuable resources that may be
capable of being harnessed to peer production. Most important by far are
postdoctoral fellows. These are the same characters who populate so many free
software projects, only geeks of a different feather. They are at a similar
life stage. They have the same hectic, overworked lives, and yet the same
capacity to work one more hour on something else, something interesting,
exciting, or career enhancing, like a special grant announced by the
government. The other resources that have overcapacity might be thought of as
petri dishes, or if that sounds too quaint and oldfashioned, polymerase chain
reaction (PCR) machines or electrophoresis equipment. The point is simple.
Laboratory funding currently is silo-based. Each lab is usually funded to have
all the equipment it needs for run-ofthe-mill work, except for very large
machines operated on time-share principles. Those machines that are redundantly
provisioned in laboratories have downtime. That downtime coupled with a
postdoctoral fellow in the lab is an experiment waiting to happen. If a group
that is seeking to start a project [[pg 353]] defines discrete modules of a
common experiment, and provides a communications platform to allow people to
download project modules, perform them, and upload results, it would be
possible to harness the overcapacity that exists in laboratories. In principle,
although this is a harder empirical question, the same could be done for other
widely available laboratory materials and even animals for preclinical trials
on the model of, "brother, can you spare a mouse?" One fascinating proposal and
early experiment at the University of Indiana-Purdue University Indianapolis
was suggested by William Scott, a chemistry professor. Scott proposed
developing simple, lowcost kits for training undergraduate students in chemical
synthesis, but which would use targets and molecules identified by
computational biology as potential treatments for developing-world diseases as
their output. With enough redundancy across different classrooms and
institutions around the world, the results could be verified while screening
and synthesizing a significant number of potential drugs. The undergraduate
educational experience could actually contribute to new experiments, as opposed
simply to synthesizing outputs that are not really needed by anyone. Clinical
trials provide yet another level of complexity, because the problem of
delivering consistent drug formulations for testing to physicians and patients
stretches the imagination. One option would be that research centers in
countries affected by the diseases in question could pick up the work at this
point, and create and conduct clinical trials. These too could be coordinated
across regions and countries among the clinicians administering the tests, so
that accruing patients and obtaining sufficient information could be achieved
more rapidly and at lower cost. As in the case of One World Health, production
and regulatory approval, from this stage on, could be taken up by the generics
manufacturers. In order to prevent the outputs from being appropriated at this
stage, every stage in the process would require a public-domain-binding license
that would prevent a manufacturer from taking the outputs and, by making small
changes, patenting the ultimate drug.

This proposal about medicine is, at this stage, the most imaginary among the
commons-based strategies for development suggested here. However, it is
analytically consistent with them, and, in principle, should be attainable. In
combination with the more traditional commons-based approaches, university
research, and the nonprofit world, peer production could contribute to an
innovation ecology that could overcome the systematic inability of a purely
patent-based system to register and respond to the health needs of the world's
poor. [[pg 354]]

COMMONS-BASED STRATEGIES FOR DEVELOPMENT: CONCLUSION
....................................................

Welfare, development, and growth outside of the core economies heavily depend
on the transfer of information-embedded goods and tools, information, and
knowledge from the technologically advanced economies to the developing and
less-developed economies and societies around the globe. These are important
partly as finished usable components of welfare. Perhaps more important,
however, they are necessary as tools and platforms on which innovation,
research, and development can be pursued by local actors in the developing
world itself--from the free software developers of Brazil to the agricultural
scientists and farmers of Southeast Asia. The primary obstacles to diffusion of
these desiderata in the required direction are the institutional framework of
intellectual property and trade and the political power of the patent-dependent
business models in the information-exporting economies. This is not because the
proprietors of information goods and tools are evil. It is because their
fiduciary duty is to maximize shareholder value, and the less-developed and
developing economies have little money. As rational maximizers with a legal
monopoly, the patent holders restrict output and sell at higher rates. This is
not a bug in the institutional system we call "intellectual property." It is a
known feature that has known undesirable side effects of inefficiently
restricting access to the products of innovation. In the context of vast
disparities in wealth across the globe, however, this known feature does not
merely lead to less than theoretically optimal use of the information. It leads
to predictable increase of morbidity and mortality and to higher barriers to
development.

The rise of the networked information economy provides a new framework for
thinking about how to work around the barriers that the international
intellectual property regime places on development. Public-sector and other
nonprofit institutions that have traditionally played an important role in
development can do so with a greater degree of efficacy. Moreover, the
emergence of peer production provides a model for new solutions to some of the
problems of access to information and knowledge. In software and
communications, these are directly available. In scientific information and
some educational materials, we are beginning to see adaptations of these models
to support core elements of development and learning. In food security and
health, the translation process may be more difficult. In agriculture, we are
seeing more immediate progress in the development of a woven [[pg 355]] fabric
of public-sector, academic, nonprofit, and individual innovation and learning
to pursue biological innovation outside of the markets based on patents and
breeders' rights. In medicine, we are still at a very early stage of
organizational experiments and institutional proposals. The barriers to
implementation are significant. However, there is growing awareness of the
human cost of relying solely on the patent-based production system, and of the
potential of commons-based strategies to alleviate these failures.

Ideally, perhaps, the most direct way to arrive at a better system for
harnessing innovation to development would pass through a new international
politics of development, which would result in a better-designed international
system of trade and innovation policy. There is in fact a global movement of
NGOs and developing nations pursuing this goal. It is possible, however, that
the politics of international trade are sufficiently bent to the purposes of
incumbent industrial information economy proprietors and the governments that
support them as a matter of industrial policy that the political path of formal
institutional reform will fail. Certainly, the history of the TRIPS agreement
and, more recently, efforts to pass new expansive treaties through the WIPO
suggest this. However, one of the lessons we learn as we look at the networked
information economy is that the work of governments through international
treaties is not the final word on innovation and its diffusion across
boundaries of wealth. The emergence of social sharing as a substantial mode of
production in the networked environment offers an alternative route for
individuals and nonprofit entities to take a much more substantial role in
delivering actual desired outcomes independent of the formal system.
Commons-based and peer production efforts may not be a cure-all. However, as we
have seen in the software world, these strategies can make a big contribution
to quite fundamental aspects of human welfare and development. And this is
where freedom and justice coincide.

The practical freedom of individuals to act and associate freely--free from the
constraints of proprietary endowment, free from the constraints of formal
relations of contract or stable organizations--allows individual action in ad
hoc, informal association to emerge as a new global mover. It frees the ability
of people to act in response to all their motivations. In doing so, it offers a
new path, alongside those of the market and formal governmental investment in
public welfare, for achieving definable and significant improvements in human
development throughout the world. [[pg 356]]


----------------------------------------
CHAPTER 10 - SOCIAL TIES: NETWORKING TOGETHER
---------------------------------------------

Increased practical individual autonomy has been central to my claims
throughout this book. It underlies the efficiency and sustainability of
nonproprietary production in the networked information economy. It underlies
the improvements I describe in both freedom and justice. Many have raised
concerns that this new freedom will fray social ties and fragment social
relations. On this view, the new freedom is one of detached monads, a freedom
to live arid, lonely lives free of the many constraining attachments that make
us grounded, well-adjusted human beings. Bolstered by early sociological
studies, this perspective was one of two diametrically opposed views that
typified the way the Internet's effect on community, or close social relations,
was portrayed in the 1990s. The other view, popular among the digerati, was
that "virtual communities" would come to represent a new form of human communal
existence, providing new scope for building a shared experience of human
interaction. Within a few short years, however, empirical research suggests
that while neither view had it completely right, it was the [[pg 357]]
dystopian view that got it especially wrong. The effects of the Internet on
social relations are obviously complex. It is likely too soon to tell which
social practices this new mode of communication will ultimately settle on. The
most recent research, however, suggests that the Internet has some fairly
well-defined effects on human community and intimate social relations. These
effects mark neither breakdown nor transcendence, but they do represent an
improvement over the world of television and telephone along most dimensions of
normative concern with social relations.

We are seeing two effects: first, and most robustly, we see a thickening of
preexisting relations with friends, family, and neighbors, particularly with
those who were not easily reachable in the pre-Internet-mediated environment.
Parents, for example, use instant messages to communicate with their children
who are in college. Friends who have moved away from each other are keeping in
touch more than they did before they had e-mail, because email does not require
them to coordinate a time to talk or to pay longdistance rates. However, this
thickening of contacts seems to occur alongside a loosening of the hierarchical
aspects of these relationships, as individuals weave their own web of
supporting peer relations into the fabric of what might otherwise be stifling
familial relationships. Second, we are beginning to see the emergence of
greater scope for limited-purpose, loose relationships. These may not fit the
ideal model of "virtual communities." They certainly do not fit a deep
conception of "community" as a person's primary source of emotional context and
support. They are nonetheless effective and meaningful to their participants.
It appears that, as the digitally networked environment begins to displace mass
media and telephones, its salient communications characteristics provide new
dimensions to thicken existing social relations, while also providing new
capabilities for looser and more fluid, but still meaningful social networks. A
central aspect of this positive improvement in loose ties has been the
technical-organizational shift from an information environment dominated by
commercial mass media on a oneto-many model, which does not foster group
interaction among viewers, to an information environment that both technically
and as a matter of social practice enables user-centric, group-based active
cooperation platforms of the kind that typify the networked information
economy. This is not to say that the Internet necessarily effects all people,
all social groups, and networks identically. The effects on different people in
different settings and networks will likely vary, certainly in their magnitude.
My purpose here, however, is [[pg 358]] to respond to the concern that enhanced
individual capabilities entail social fragmentation and alienation. The
available data do not support that claim as a description of a broad social
effect.

FROM "VIRTUAL COMMUNITIES" TO FEAR OF DISINTEGRATION
....................................................

Angst about the fragmentation of organic deep social ties, the gemeinschaft
community, the family, is hardly a creature of the Internet. In some form or
another, the fear that cities, industrialization, rapid transportation, mass
communications, and other accoutrements of modern industrial society are
leading to alienation, breakdown of the family, and the disruption of community
has been a fixed element of sociology since at least the mid-nineteenth
century. Its mirror image--the search for real or imagined, more or less
idealized community, "grounded" in preindustrial pastoral memory or
postindustrial utopia--was often not far behind. Unsurprisingly, this patterned
opposition of fear and yearning was replayed in the context of the Internet, as
the transformative effect of this new medium made it a new focal point for both
strands of thought.

In the case of the Internet, the optimists preceded the pessimists. In his
now-classic The Virtual Community, Howard Rheingold put it most succinctly in
1993:

  My direct observations of online behavior around the world over the past ten
  years have led me to conclude that whenever CMC [computer mediated
  communications] technology becomes available to people anywhere, they
  inevitably build virtual communities with it, just as microorganisms
  inevitably create colonies. I suspect that one of the explanations for this
  phenomenon is the hunger for community that grows in the breasts of people
  around the world as more and more informal public spaces disappear from our
  real lives. I also suspect that these new media attract colonies of
  enthusiasts because CMC enables people to do things with each other in new
  ways, and to do altogether new kinds of things-- just as telegraphs,
  telephones, and televisions did.

/The Virtual Community/ was grounded on Rheingold's own experience in the WELL
(Whole Earth `Lectronic Link). The WELL was one the earliest well-developed
instances of large-scale social interaction among people who started out as
strangers but came to see themselves as a community. Its members eventually
began to organize meetings in real space to strengthen [[pg 359]] the bonds,
while mostly continuing their interaction through computermediated
communications. Note the structure of Rheingold's claim in this early passage.
There is a hunger for community, no longer satisfied by the declining
availability of physical spaces for human connection. There is a newly
available medium that allows people to connect despite their physical distance.
This new opportunity inevitably and automatically brings people to use its
affordances--the behaviors it makes possible--to fulfill their need for human
connection. Over and above this, the new medium offers new ways of
communicating and new ways of doing things together, thereby enhancing what was
previously possible. Others followed Rheingold over the course of the 1990s in
many and various ways. The basic structure of the claim about the potential of
cyberspace to forge a new domain for human connection, one that overcomes the
limitations that industrial mass-mediated society places on community, was oft
repeated. The basic observation that the Internet permits the emergence of new
relationships that play a significant role in their participants' lives and are
anchored in online communications continues to be made. As discussed below,
however, much of the research suggests that the new online relationships
develop in addition to, rather than instead of, physical face-to-face human
interaction in community and family--which turns out to be alive and well.

It was not long before a very different set of claims emerged about the
Internet. Rather than a solution to the problems that industrial society
creates for family and society, the Internet was seen as increasing alienation
by absorbing its users. It made them unavailable to spend time with their
families. It immersed them in diversions from the real world with its real
relationships. In a social-relations version of the Babel objection, it was
seen as narrowing the set of shared cultural experiences to such an extent that
people, for lack of a common sitcom or news show to talk about, become
increasingly alienated from each other. One strand of this type of criticism
questioned the value of online relationships themselves as plausible
replacements for real-world human connection. Sherry Turkle, the most important
early explorer of virtual identity, characterized this concern as: "is it
really sensible to suggest that the way to revitalize community is to sit alone
in our rooms, typing at our networked computers and filling our lives with
virtual friends?"[^129] Instead of investing themselves with real
relationships, risking real exposure and connection, people engage in
limited-purpose, lowintensity relationships. If it doesn't work out, they can
always sign off, and no harm done. [[pg 360]]

Another strand of criticism focused less on the thinness, not to say vacuity,
of online relations, and more on sheer time. According to this argument, the
time and effort spent on the Net came at the expense of time spent with family
and friends. Prominent and oft cited in this vein were two early studies. The
first, entitled Internet Paradox, was led by Robert Kraut.[^130] It was the
first longitudinal study of a substantial number of users--169 users in the
first year or two of their Internet use. Kraut and his collaborators found a
slight, but statistically significant, correlation between increases in
Internet use and (a) decreases in family communication, (b) decreases in the
size of social circle, both near and far, and (c) an increase in depression and
loneliness. The researchers hypothesized that use of the Internet replaces
strong ties with weak ties. They ideal-typed these communications as exchanging
knitting tips with participants in a knitting Listserv, or jokes with someone
you would meet on a tourist information site. These trivialities, they thought,
came to fill time that, in the absence of the Internet, would be spent with
people with whom one has stronger ties. From a communications theory
perspective, this causal explanation was more sophisticated than the more
widely claimed assimilation of the Internet and television--that a computer
monitor is simply one more screen to take away from the time one has to talk to
real human beings.[^131] It recognized that using the Internet is fundamentally
different from watching TV. It allows users to communicate with each other,
rather than, like television, encouraging passive reception in a kind of
"parallel play." Using a distinction between strong ties and weak ties,
introduced by Mark Granovetter in what later became the social capital
literature, these researchers suggested that the kind of human contact that was
built around online interactions was thinner and less meaningful, so that the
time spent on these relationships, on balance, weakened one's stock of social
relations.

A second, more sensationalist release of a study followed two years later. In
2000, the Stanford Institute for the Quantitative Study of Society's
"preliminary report" on Internet and society, more of a press release than a
report, emphasized the finding that "the more hours people use the Internet,
the less time they spend with real human beings."[^132] The actual results were
somewhat less stark than the widely reported press release. As among all
Internet users, only slightly more than 8 percent reported spending less time
with family; 6 percent reported spending more time with family, and 86 percent
spent about the same amount of time. Similarly, 9 percent reported spending
less time with friends, 4 percent spent more time, and 87 percent spent the
[[pg 361]] same amount of time.[^133] The press release probably should not
have read, "social isolation increases," but instead, "Internet seems to have
indeterminate, but in any event small, effects on our interaction with family
and friends"--hardly the stuff of front-page news coverage.[^134] The strongest
result supporting the "isolation" thesis in that study was that 27 percent of
respondents who were heavy Internet users reported spending less time on the
phone with friends and family. The study did not ask whether they used email
instead of the phone to keep in touch with these family and friends, and
whether they thought they had more or less of a connection with these friends
and family as a result. Instead, as the author reported in his press release,
"E-mail is a way to stay in touch, but you can't share coffee or beer with
somebody on e-mail, or give them a hug" (as opposed, one supposes, to the
common practice of phone hugs).[^135] As Amitai Etzioni noted in his biting
critique of that study, the truly significant findings were that Internet users
spent less time watching television and shopping. Forty-seven percent of those
surveyed said that they watched less television than they used to, and that
number reached 65 percent for heavy users and 27 percent for light users. Only
3 percent of those surveyed said they watched more TV. Nineteen percent of all
respondents and 25 percent of those who used the Internet more than five hours
a week said they shopped less in stores, while only 3 percent said they shopped
more in stores. The study did not explore how people were using the time they
freed by watching less television and shopping less in physical stores. It did
not ask whether they used any of this newfound time to increase and strengthen
their social and kin ties.[^136]

A MORE POSITIVE PICTURE EMERGES OVER TIME
.........................................

The concerns represented by these early studies of the effects of Internet use
on community and family seem to fall into two basic bins. The first is that
sustained, more or less intimate human relations are critical to
well-functioning human beings as a matter of psychological need. The claims
that Internet use is associated with greater loneliness and depression map well
onto the fears that human connection ground into a thin gruel of electronic
bits simply will not give people the kind of human connectedness they need as
social beings. The second bin of concerns falls largely within the "social
capital" literature, and, like that literature itself, can be divided largely
into two main subcategories. The first, following James Coleman and Mark
Granovetter, focuses on the [[pg 362]] economic function of social ties and the
ways in which people who have social capital can be materially better off than
people who lack it. The second, exemplified by Robert Putnam's work, focuses on
the political aspects of engaged societies, and on the ways in which
communities with high social capital--defined as social relations with people
in local, stable, face-to-face interactions--will lead to better results in
terms of political participation and the provisioning of local public goods,
like education and community policing. For this literature, the shape of social
ties, their relative strength, and who is connected to whom become more
prominent features.

There are, roughly speaking, two types of responses to these concerns. The
first is empirical. In order for these concerns to be valid as applied to
increasing use of Internet communications, it must be the case that Internet
communications, with all of their inadequacies, come to supplant real-world
human interactions, rather than simply to supplement them. Unless Internet
connections actually displace direct, unmediated, human contact, there is no
basis to think that using the Internet will lead to a decline in those
nourishing connections we need psychologically, or in the useful connections we
make socially, that are based on direct human contact with friends, family, and
neighbors. The second response is theoretical. It challenges the notion that
the socially embedded individual is a fixed entity with unchanging needs that
are, or are not, fulfilled by changing social conditions and relations.
Instead, it suggests that the "nature" of individuals changes over time, based
on actual social practices and expectations. In this case, we are seeing a
shift from individuals who depend on social relations that are dominated by
locally embedded, thick, unmediated, given, and stable relations, into
networked individuals--who are more dependent on their own combination of
strong and weak ties, who switch networks, cross boundaries, and weave their
own web of more or less instrumental, relatively fluid relationships. Manuel
Castells calls this the "networked society,"[^137] Barry Wellman, "networked
individualism."[^138] To simplify vastly, it is not that people cease to depend
on others and their context for both psychological and social wellbeing and
efficacy. It is that the kinds of connections that we come to rely on for these
basic human needs change over time. Comparisons of current practices to the old
ways of achieving the desiderata of community, and fears regarding the loss of
community, are more a form of nostalgia than a diagnosis of present social
malaise. [[pg 363]]

USERS INCREASE THEIR CONNECTIONS WITH PREEXISTING RELATIONS
...........................................................

The most basic response to the concerns over the decline of community and its
implications for both the psychological and the social capital strands is the
empirical one. Relations with one's local geographic community and with one's
intimate friends and family do not seem to be substantially affected by
Internet use. To the extent that these relationships are affected, the effect
is positive. Kraut and his collaborators continued their study, for example,
and followed up with their study subjects for an additional three years. They
found that the negative effects they had reported in the first year or two
dissipated over the total period of observation.[^139] Their basic hypothesis
that the Internet probably strengthened weak ties, however, is consistent with
other research and theoretical work. One of the earliest systematic studies of
high-speed Internet access and its effects on communities in this vein was by
Keith Hampton and Barry Wellman.[^140] They studied the aptly named Toronto
suburb Netville, where homes had high-speed wiring years before broadband
access began to be adopted widely in North America. One of their most powerful
findings was that people who were connected recognized three times as many of
their neighbors by name and regularly talked with twice as many as those who
were not wired. On the other hand, however, stronger ties--indicated by
actually visiting neighbors, as opposed to just knowing their name or stopping
to say good morning--were associated with how long a person had lived in the
neighborhood, not with whether or not they were wired. In other words, weak
ties of the sort of knowing another's name or stopping to chat with them were
significantly strengthened by Internet connection, even within a geographic
neighborhood. Stronger ties were not. Using applications like a local e-mail
list and personal e-mails, wired residents communicated with others in their
neighborhood much more often than did nonwired residents. Moreover, wired
residents recognized the names of people in a wider radius from their homes,
while nonwired residents tended to know only people within their block, or even
a few homes on each side. However, again, stronger social ties, like visiting
and talking face-to-face, tended to be concentrated among physically proximate
neighbors. Other studies also observed this increase of weak ties in a
neighborhood with individuals who are more geographically distant than one's
own immediate street or block.[^141] Perhaps the most visible aspect of the
social capital implications of a well-wired geographic community was the
finding that [[pg 364]]

wired neighbors began to sit on their front porches, instead of in their
backyard, thereby providing live social reinforcement of community through
daily brief greetings, as well as creating a socially enforced community
policing mechanism.

We now have quite a bit of social science research on the side of a number of
factual propositions.[^142] Human beings, whether connected to the Internet or
not, continue to communicate preferentially with people who are geographically
proximate than with those who are distant.[^143] Nevertheless, people who are
connected to the Internet communicate more with people who are geographically
distant without decreasing the number of local connections. While the total
number of connections continues to be greatest with proximate family members,
friends, coworkers, and neighbors, the Internet's greatest effect is in
improving the ability of individuals to add to these proximate relationships
new and better-connected relationships with people who are geographically
distant. This includes keeping more in touch with friends and relatives who
live far away, and creating new weak-tie relationships around communities of
interest and practice. To the extent that survey data are reliable, the most
comprehensive and updated surveys support these observations. It now seems
clear that Internet users "buy" their time to use the Internet by watching less
television, and that the more Internet experience they have, the less they
watch TV. People who use the Internet claim to have increased the number of
people they stay in touch with, while mostly reporting no effect on time they
spend with their family.[^144]

Connections with family and friends seemed to be thickened by the new channels
of communication, rather than supplanted by them. Emblematic of this were
recent results of a survey conducted by the Pew project on "Internet and
American Life" on Holidays Online. Almost half of respondents surveyed reported
using e-mail to organize holiday activities with family (48 percent) and
friends (46 percent), 27 percent reported sending or receiving holiday
greetings, and while a third described themselves as shopping online in order
to save money, 51 percent said they went online to find an unusual or
hard-to-find gift. In other words, half of those who used the Internet for
holiday shopping did so in order to personalize their gift further, rather than
simply to take advantage of the most obvious use of e-commerce--price
comparison and time savings. Further support for this position is offered in
another Pew study, entitled "Internet and Daily Life." In that survey, the two
most common uses--both of which respondents claimed they did more of because of
the Net than they otherwise would have--were connecting [[pg 365]] with family
and friends and looking up information.[^145] Further evidence that the
Internet is used to strengthen and service preexisting relations, rather than
create new ones, is the fact that 79 percent of those who use the Internet at
all do so to communicate with friends and family, while only 26 percent use the
Internet to meet new people or to arrange dates. Another point of evidence is
the use of instant messaging (IM). IM is a synchronous communications medium
that requires its users to set time aside to respond and provides information
to those who wish to communicate with an individual about whether that person
is or is not available at any given moment. Because it is so demanding, IM is
preferentially useful for communicating with individuals with whom one already
has a preexisting relationship. This preferential use for strengthening
preexisting relations is also indicated by the fact that two-thirds of IM users
report using IM with no more than five others, while only one in ten users
reports instant messaging with more than ten people. A recent Pew study of
instant messaging shows that 53 million adults--42 percent of Internet users in
the United States--trade IM messages. Forty percent use IM to contact
coworkers, one-third family, and 21 percent use it to communicate equally with
both. Men and women IM in equal proportions, but women IM more than men do,
averaging 433 minutes per month as compared to 366 minutes, respectively, and
households with children IM more than households without children.

These studies are surveys and local case studies. They cannot offer a knockdown
argument about how "we"--everyone, everywhere--are using the Internet. The same
technology likely has different effects when it is introduced into cultures
that differ from each other in their pre-Internet baseline.[^146] Despite these
cautions, these studies do offer the best evidence we have about Internet use
patterns. As best we can tell from contemporary social science, Internet use
increases the contact that people have with others who traditionally have been
seen as forming a person's "community": family, friends, and neighbors.
Moreover, the Internet is also used as a platform for forging new
relationships, in addition to those that are preexisting. These relationships
are more limited in nature than ties to friends and family. They are detached
from spatial constraints, and even time synchronicity; they are usually
interest or practice based, and therefore play a more limited role in people's
lives than the more demanding and encompassing relationships with family or
intimate friends. Each discrete connection or cluster of connections that forms
a social network, or a network of social relations, plays some role, but not a
definitive one, in each participant's life. There is little disagreement [[pg
366]] among researchers that these kinds of weak ties or limited-liability
social relationships are easier to create on the Internet, and that we see some
increase in their prevalence among Internet users. The primary disagreement is
interpretive--in other words, is it, on balance, a good thing that we have
multiple, overlapping, limited emotional liability relationships, or does it,
in fact, undermine our socially embedded being?

NETWORKED INDIVIDUALS
.....................

The interpretive argument about the normative value of the increase in weak
ties is colored by the empirical finding that the time spent on the Internet in
these limited relationships does not come at the expense of the number of
communications with preexisting, real-world relationships. Given our current
state of sociological knowledge, the normative question cannot be whether
online relations are a reasonable replacement for real-world friendship.
Instead, it must be how we understand the effect of the interaction between an
increasingly thickened network of communications with preexisting relations and
the casting of a broader net that captures many more, and more varied,
relations. What is emerging in the work of sociologists is a framework that
sees the networked society or the networked individual as entailing an
abundance of social connections and more effectively deployed attention. The
concern with the decline of community conceives of a scarcity of forms of
stable, nurturing, embedding relations, which are mostly fixed over the life of
an individual and depend on long-standing and interdependent relations in
stable groups, often with hierarchical relations. What we now see emerging is a
diversity of forms of attachment and an abundance of connections that enable
individuals to attain discrete components of the package of desiderata that
"community" has come to stand for in sociology. As Wellman puts it:
"Communities and societies have been changing towards networked societies where
boundaries are more permeable, interactions are with diverse others, linkages
switch between multiple networks, and hierarchies are flatter and more
recursive. . . . Their work and community networks are diffuse, sparsely knit,
with vague, overlapping, social and spatial boundaries."[^147] In this context,
the range and diversity of network connections beyond the traditional family,
friends, stable coworkers, or village becomes a source of dynamic stability,
rather than tension and disconnect.

The emergence of networked individuals is not, however, a mere overlay,
"floating" on top of thickened preexisting social relations without touching
them except to add more relations. The interpolation of new networked [[pg
367]] connections, and the individual's role in weaving those for him- or
herself, allows individuals to reorganize their social relations in ways that
fit them better. They can use their network connections to loosen social bonds
that are too hierarchical and stifling, while filling in the gaps where their
realworld relations seem lacking. Nowhere is this interpolation clearer than in
Mizuko Ito's work on the use of mobile phones, primarily for text messaging and
e-mail, among Japanese teenagers.[^148] Japanese urban teenagers generally live
in tighter physical quarters than their American or European counterparts, and
within quite strict social structures of hierarchy and respect. Ito and others
have documented how these teenagers use mobile phones--primarily as platforms
for text messages--that is, as a mobile cross between email and instant
messaging and more recently images, to loosen the constraints under which they
live. They text at home and in the classroom, making connections to meet in the
city and be together, and otherwise succeed in constructing a network of time-
and space-bending emotional connections with their friends, without--and this
is the critical observation--breaking the social molds they otherwise occupy.
They continue to spend time in their home, with their family. They continue to
show respect and play the role of child at home and at school. However, they
interpolate that role and those relations with a sub-rosa network of
connections that fulfill otherwise suppressed emotional needs and ties.

The phenomenon is not limited to youths, but is applicable more generally to
the capacity of users to rely on their networked connections to escape or
moderate some of the more constraining effects of their stable social
connections. In the United States, a now iconic case--mostly described in terms
of privacy--was that of U.S. Navy sailor Timothy McVeigh (not the Oklahoma
bomber). McVeigh was discharged from the navy when his superiors found out that
he was gay by accessing his AOL (America Online) account. The case was
primarily considered in terms of McVeigh's e-mail account privacy. It settled
for an undisclosed sum, and McVeigh retired from the navy with benefits.
However, what is important for us here is not the "individual rights" category
under which the case was fought, but the practice that it revealed. Here was an
eighteen-year veteran of the navy who used the space-time breaking
possibilities of networked communications to loosen one of the most
constraining attributes imaginable of the hierarchical framework that he
nonetheless chose to be part of--the U.S. Navy. It would be odd to think that
the navy did not provide McVeigh with a sense of identity and camaraderie that
closely knit communities provide their [[pg 368]] members. Yet at the same
time, it also stifled his ability to live one of the most basic of all human
ties--his sexual identity. He used the network and its potential for anonymous
and pseudonymous existence to coexist between these two social structures.

At the other end of the spectrum of social ties, we see new platforms emerging
to generate the kinds of bridging relations that were so central to the
identification of "weak ties" in social capital literature. Weak ties are
described in the social capital literature as allowing people to transmit
information across social networks about available opportunities and resources,
as well as provide at least a limited form of vouching for others--as one
introduces a friend to a friend of a friend. What we are seeing on the Net is
an increase in the platforms developed to allow people to create these kinds of
weak ties based on an interest or practice. Perhaps clearest of these is
Meetup.com. Meetup is a Web site that allows users to search for others who
share an interest and who are locally available to meet face-to-face. The
search results show users what meetings are occurring within their requested
area and interest. The groups then meet periodically, and those who sign up for
them also are able to provide a profile and photo of themselves, to facilitate
and sustain the real-world group meetings. The power of this platform is that
it is not intended as a replacement for real-space meetings. It is intended as
a replacement for the happenstance of social networks as they transmit
information about opportunities for interest- and practice-based social
relations. The vouching function, on the other hand, seems to have more mixed
efficacy, as Dana Boyd's ethnography of Friendster suggests.[^149] Friendster
was started as a dating Web site. It was built on the assumption that dating a
friend of a friend of a friend is safer and more likely to be successful than
dating someone based on a similar profile, located on a general dating site
like match.com--in other words, that vouching as friends provides valuable
information. As Boyd shows, however, the attempt of Friendster to articulate
and render transparent the social networks of its users met with less than
perfect success. The platform only permits users to designate friend/not
friend, without the finer granularity enabled by a face-toface conversation
about someone, where one can answer or anticipate the question, "just how well
do you know this person?" with a variety of means, from tone to express
reservations. On Friendster, it seems that people cast broader networks, and
for fear of offending or alienating others, include many more "friendsters"
than they actually have "friends." The result is a weak platform for mapping
general connections, rather than a genuine articulation [[pg 369]] of vouching
through social networks. Nonetheless, it does provide a visible rendering of at
least the thinnest of weak ties, and strengthens their effect in this regard.
It enables very weak ties to perform some of the roles of real-world weak
social ties.

THE INTERNET AS A PLATFORM FOR HUMAN CONNECTION
...............................................

Communication is constitutive of social relations. We cannot have relationships
except by communicating with others. Different communications media differ from
each other--in who gets to speak to whom and in what can be said. These
differences structure the social relations that rely on these various modes of
communication so that they differ from each other in significant ways.
Technological determinism is not required to accept this. Some aspects of the
difference are purely technical. Script allows text and more or less crude
images to be transmitted at a distance, but not voice, touch, smell, or taste.
To the extent that there are human emotions, modes of submission and exertion
of authority, irony, love or affection, or information that is easily encoded
and conveyed in face-to-face communications but not in script, script-based
communications are a poor substitute for presence. A long and romantic
tradition of love letters and poems notwithstanding, there is a certain
thinness to that mode in the hands of all but the most gifted writers relative
to the fleshiness of unmediated love. Some aspects of the difference among
media of communication are not necessarily technical, but are rather culturally
or organizationally embedded. Television can transmit text. However, text
distribution is not television's relative advantage in a sociocultural
environment that already has mass-circulation print media, and in a technical
context where the resolution of television images is relatively low. As a
matter of cultural and business practice, therefore, from its inception,
television emphasized moving images and sound, not text transmission. Radio
could have been deployed as short-range, point-to-point personal communications
systems, giving us a nation of walkie-talkies. However, as chapter 6 described,
doing so would have required a very different set of regulatory and business
decisions between 1919 and 1927. Communications media take on certain social
roles, structures of control, and emphases of style that combine their
technical capacities and limits with the sociocultural business context into
which they were introduced, and through which they developed. The result is a
cluster of use characteristics that define how a [[pg 370]] given medium is
used within a given society, in a given historical context. They make media
differ from each other, providing platforms with very different capacities and
emphases for their users.

As a technical and organizational matter, the Internet allows for a radically
more diverse suite of communications models than any of the twentiethcentury
systems permitted. It allows for textual, aural, and visual communications. It
permits spatial and temporal asynchronicity, as in the case of email or Web
pages, but also enables temporal synchronicity--as in the case of IM, online
game environments, or Voice over Internet Protocol (VoIP). It can even be used
for subchannel communications within a spatially synchronous context, such as
in a meeting where people pass electronic notes to each other by e-mail or IM.
Because it is still highly textual, it requires more direct attention than
radio, but like print, it is highly multiplexable-- both between uses of the
Internet and other media, and among Internet uses themselves. Similar to print
media, you can pick your head up from the paper, make a comment, and get back
to reading. Much more richly, one can be on a voice over IP conversation and
e-mail at the same time, or read news interlaced with receiving and responding
to e-mail. It offers oneto-one, one-to-few, few-to-few, one-to-many, and
many-to-many communications capabilities, more diverse in this regard than any
medium for social communication that preceded it, including--on the dimensions
of distance, asynchronicity, and many-to-many capabilities--even that richest
of media: face-to-face communications.

Because of its technical flexibility and the "business model" of Internet
service providers as primarily carriers, the Internet lends itself to being
used for a wide range of social relations. Nothing in "the nature of the
technology" requires that it be the basis of rich social relations, rather than
becoming, as some predicted in the early 1990s, a "celestial jukebox" for the
mass distribution of prepackaged content to passive end points. In
contradistinction to the dominant remote communications technologies of the
twentieth century, however, the Internet offers some new easy ways to
communicate that foster both of the types of social communication that the
social science literature seems to be observing. Namely, it makes it easy to
increase the number of communications with preexisting friends and family, and
increases communication with geographically distant or more loosely affiliated
others. Print, radio, television, film, and sound recording all operated
largely on a one-to-many model. They did not, given the economics of production
and transmission, provide a usable means of remote communication for
individuals [[pg 371]] at the edges of these communication media. Television,
film, sound recording, and print industries were simply too expensive, and
their business organization was too focused on selling broadcast-model
communications, to support significant individual communication. When cassette
tapes were introduced, we might have seen people recording a tape instead of
writing a letter to friends or family. However, this was relatively cumbersome,
low quality, and time consuming. Telephones were the primary means of
communications used by individuals, and they indeed became the primary form of
mediated personal social communications. However, telephone conversations
require synchronicity, which means that they can only be used for socializing
purposes when both parties have time. They were also only usable throughout
this period for serial, one-to-one conversations. Moreover, for most of the
twentieth century, a long-distance call was a very expensive proposition for
most nonbusiness users, and outside of the United States, local calls too
carried nontrivial time-sensitive prices in most places. Telephones were
therefore a reasonable medium for social relations with preexisting friends and
family. However, their utility dropped off radically with the cost of
communication, which was at a minimum associated with geographic distance. In
all these dimensions, the Internet makes it easier and cheaper to communicate
with family and friends, at close proximity or over great distances, through
the barriers of busy schedules and differing time zones. Moreover, because of
the relatively low-impact nature of these communications, the Internet allows
people to experiment with looser relations more readily. In other words, the
Internet does not make us more social beings. It simply offers more degrees of
freedom for each of us to design our own communications space than were
available in the past. It could have been that we would have used that design
flexibility to re-create the massmedia model. But to predict that it would be
used in this fashion requires a cramped view of human desire and connectedness.
It was much more likely that, given the freedom to design our own
communications environment flexibly and to tailor it to our own individual
needs dynamically over time, we would create a system that lets us strengthen
the ties that are most important to us. It was perhaps less predictable, but
unsurprising after the fact, that this freedom would also be used to explore a
wider range of relations than simply consuming finished media goods.

There is an appropriate wariness in contemporary academic commentary about
falling into the trap of "the mythos of the electrical sublime" by adopting a
form of Internet utopianism.[^150] It is important, however, not to [[pg 372]]
let this caution blind us to the facts about Internet use, and the technical,
business, and cultural capabilities that the Internet makes feasible. The
cluster of technologies of computation and communications that characterize the
Internet today are, in fact, used in functionally different ways, and make for
several different media of communication than we had in the twentieth century.
The single technical platform might best be understood to enable several
different "media"--in the sense of clusters of technical-socialeconomic
practices of communication--and the number of these enabled media is growing.
Instant messaging came many years after e-mail, and a few years after Web
pages. Blogging one's daily journal on LiveJournal so that a group of intimates
can check in on one's life as it unfolds was not a medium that was available to
users until even more recently. The Internet is still providing its users with
new ways to communicate with each other, and these represent a genuinely wide
range of new capabilities. It is therefore unsurprising that connected social
beings, such as we are, will take advantage of these new capabilities to form
connections that were practically infeasible in the past. This is not media
determinism. This is not millenarian utopianism. It is a simple observation.
People do what they can, not what they cannot. In the daily humdrum of their
lives, individuals do more of what is easier to do than what requires great
exertion. When a new medium makes it easy for people to do new things, they may
well, in fact, do them. And when these new things are systematically more
user-centric, dialogic, flexible in terms of the temporal and spatial
synchronicity they require or enable, and multiplexable, people will
communicate with each other in ways and amounts that they could not before.

THE EMERGENCE OF SOCIAL SOFTWARE
................................

The design of the Internet itself is agnostic as among the social structures
and relations it enables. At its technical core is a commitment to push all the
detailed instantiations of human communications to the edges of the network--to
the applications that run on the computers of users. This technical agnosticism
leads to a social agnosticism. The possibility of large-scale sharing and
cooperation practices, of medium-scale platforms for collaboration and
discussion, and of small-scale, one-to-one communications has led to the
development of a wide range of software designs and applications to facilitate
different types of communications. The World Wide Web was used initially as a
global broadcast medium available to anyone and everyone, [[pg 373]]
everywhere. In e-mail, we see a medium available for one-to-one, few-tofew,
one-to-many and, to a lesser extent, many-to-many use. One of the more
interesting phenomena of the past few years is the emergence of what is
beginning to be called "social software." As a new design space, it is
concerned with groups that are, as defined by Clay Shirky, who first
articulated the concept, "Larger than a dozen, smaller than a few hundred,
where people can actually have these conversational forms that can't be
supported when you're talking about tens of thousands or millions of users, at
least in a single group." The definition of the term is somewhat amorphous, but
the basic concept is software whose design characteristic is that it treats
genuine social phenomena as different from one-to-one or one-to-many
communications. It seeks to build one's expectations about the social
interactions that the software will facilitate into the design of the platform.
The design imperative was most clearly articulated by Shirky when he wrote that
from the perspective of the software designer, the user of social software is
the group, not the individual.[^151]

A simple example will help to illustrate. Take any given site that uses a
collaborative authorship tool, like the Wiki that is the basis of /Wikipedia/
and many other cooperative authorship exercises. From the perspective of an
individual user, the ease of posting a comment on the Wiki, and the ease of
erasing one's own comments from it, would be important characteristics: The
fewer registration and sign-in procedures, the better. Not so from the
perspective of the group. The group requires some "stickiness" to make the
group as a group, and the project as a project, avoid the rending forces of
individualism and self-reference. So, for example, design components that
require registration for posting, or give users different rights to post and
erase comments over time, depending on whether they are logged in or not, or
depending on a record of their past cooperative or uncooperative behavior, are
a burden for the individual user. However, that is precisely their point. They
are intended to give those users with a greater stake in the common enterprise
a slight, or sometimes large, edge in maintaining the group's cohesion.
Similarly, erasing past comments may be useful for the individual, for example,
if they were silly or untempered. Keeping the comments there is, however,
useful to the group--as a source of experience about the individual or part of
the group's collective memory about mistakes made in the past that should not
be repeated by someone else. Again, the needs of the group as a group often
differ from those of the individual participant. Thinking of the platform as
social software entails designing it with characteristics [[pg 374]] that have
a certain social-science or psychological model of the interactions of a group,
and building the platform's affordances in order to enhance the survivability
and efficacy of the group, even if it sometimes comes at the expense of the
individual user's ease of use or comfort.

This emergence of social software--like blogs with opportunities to comment,
Wikis, as well as social-norm-mediated Listservs or uses of the "cc" line in
e-mail--underscores the nondeterministic nature of the claim about the
relationship between the Internet and social relations. The Internet makes
possible all sorts of human communications that were not technically feasible
before its widespread adoption. Within this wide range of newly feasible
communications patterns, we are beginning to see the emergence of different
types of relationships--some positive, some, like spam (unsolicited commercial
e-mail), decidedly negative. In seeking to predict and diagnose the
relationship between the increasing use of Internet communications and the
shape of social relations, we see that the newly emerging constructive social
possibilities are leading to new design challenges. These, in turn, are finding
engineers and enthusiasts willing and able to design for them. The genuinely
new capability--connecting among few and many at a distance in a dialogic,
recursive form--is leading to the emergence of new design problems. These
problems come from the fact that the new social settings come with their own
social dynamics, but without long-standing structures of mediation and
constructive ordering. Hence the early infamy of the tendency of Usenet and
Listservs discussions to deteriorate into destructive flame wars. As social
habits of using these kinds of media mature, so that users already know that
letting loose on a list will likely result in a flame war and will kill the
conversation, and as designers understand that social dynamics--including both
those that allow people to form and sustain groups and those that rend them
apart with equal if not greater force--we are seeing the coevolution of social
norms and platform designs that are intended to give play to the former, and
mediate or moderate the latter. These platforms are less likely to matter for
sustaining the group in preexisting relations--as among friends or family. The
structuring of those relationships is dominated by social norms. However, they
do offer a new form and a stabilizing context for the newly emerging diverse
set of social relations--at a distance, across interests and contexts--that
typify both peer production and many forms of social interaction aimed purely
at social reproduction.

The peer-production processes that are described in primarily economic [[pg
375]] terms in chapter 3--like free software development, /Wikipedia/, or the
Open Directory Project--represent one cluster of important instances of this
new form of social relations. They offer a type of relationship that is
nonhierarchical and organized in a radically decentralized pattern. Their
social valence is given by some combination of the shared experience of joint
creativity they enable, as well as their efficacy--their ability to give their
users a sense of common purpose and mutual support in achieving it. Individuals
adopt projects and purposes they consider worth pursuing. Through these
projects they find others, with whom they initially share only a general sense
of human connectedness and common practical interest, but with whom they then
interact in ways that allow the relationship to thicken over time. Nowhere is
this process clearer than on the community pages of /Wikipedia/. Because of the
limited degree to which that platform uses technical means to constrain
destructive behavior, the common enterprise has developed practices of
user-to-user communication, multiuser mediation, and userappointed mediation to
resolve disputes and disagreements. Through their involvement in these, users
increase their participation, their familiarity with other participants--at
least in this limited role as coauthors--and their practices of mutual
engagement with these others. In this way, peer production offers a new
platform for human connection, bringing together otherwise unconnected
individuals and replacing common background or geographic proximity with a
sense of well-defined purpose and the successful common pursuit of this purpose
as the condensation point for human connection. Individuals who are connected
to each other in a peer-production community may or may not be bowling alone
when they are off-line, but they are certainly playing together online.

THE INTERNET AND HUMAN COMMUNITY
................................

This chapter began with a basic question. While the networked information
economy may enhance the autonomy of individuals, does it not also facilitate
the breakdown of community? The answer offered here has been partly empirical
and partly conceptual.

Empirically, it seems that the Internet is allowing us to eat our cake and have
it too, apparently keeping our (social) figure by cutting down on the social
equivalent of deep-fried dough--television. That is, we communicate more,
rather than less, with the core constituents of our organic communities--our
family and our friends--and we seem, in some places, also to [[pg 376]] be
communicating more with our neighbors. We also communicate more with loosely
affiliated others, who are geographically remote, and who may share only
relatively small slivers of overlapping interests, or for only short periods of
life. The proliferation of potential connections creates the social parallel to
the Babel objection in the context of autonomy--with all these possible links,
will any of them be meaningful? The answer is largely that we do, in fact,
employ very strong filtering on our Internet-based social connections in one
obvious dimension: We continue to use the newly feasible lines of communication
primarily to thicken and strengthen connections with preexisting
relationships--family and friends. The clearest indication of this is the
parsimony with which most people use instant messaging. The other mechanism we
seem to be using to avoid drowning in the noise of potential chitchat with
ever-changing strangers is that we tend to find networks of connections that
have some stickiness from our perspective. This stickiness could be the
efficacy of a cluster of connections in pursuit of a goal one cares about, as
in the case of the newly emerging peer-production enterprises. It could be the
ways in which the internal social interaction has combined social norms with
platform design to offer relatively stable relations with others who share
common interests. Users do not amble around in a social equivalent of Brownian
motion. They tend to cluster in new social relations, albeit looser and for
more limited purposes than the traditional pillars of community.

The conceptual answer has been that the image of "community" that seeks a
facsimile of a distant pastoral village is simply the wrong image of how we
interact as social beings. We are a networked society now--networked
individuals connected with each other in a mesh of loosely knit, overlapping,
flat connections. This does not leave us in a state of anomie. We are
welladjusted, networked individuals; well-adjusted socially in ways that those
who seek community would value, but in new and different ways. In a substantial
departure from the range of feasible communications channels available in the
twentieth century, the Internet has begun to offer us new ways of connecting to
each other in groups small and large. As we have come to take advantage of
these new capabilities, we see social norms and software coevolving to offer
new, more stable, and richer contexts for forging new relationships beyond
those that in the past have been the focus of our social lives. These do not
displace the older relations. They do not mark a fundamental shift in human
nature into selfless, community-conscious characters. We continue to be complex
beings, radically individual and self-interested [[pg 377]] at the same time
that we are entwined with others who form the context out of which we take
meaning, and in which we live our lives. However, we now have new scope for
interaction with others. We have new opportunities for building sustained
limited-purpose relations, weak and intermediate-strength ties that have
significant roles in providing us with context, with a source of defining part
of our identity, with potential sources for support, and with human
companionship. That does not mean that these new relationships will come to
displace the centrality of our more immediate relationships. They will,
however, offer increasingly attractive supplements as we seek new and diverse
ways to embed ourselves in relation to others, to gain efficacy in weaker ties,
and to interpolate different social networks in combinations that provide us
both stability of context and a greater degree of freedom from the hierarchical
and constraining aspects of some of our social relations. [[pg 378]] [[pg 379]]


----------------------------------------
PART THREE - POLICIES OF FREEDOM AT A MOMENT OF TRANSFORMATION
==============================================================


----------------------------------------
INTRODUCTION
------------

Part I of this book offers a descriptive, progressive account of emerging
patterns of nonmarket individual and cooperative social behavior, and an
analysis of why these patterns are internally sustainable and increase
information economy productivity. Part II combines descriptive and normative
analysis to claim that these emerging practices offer defined improvements in
autonomy, democratic discourse, cultural creation, and justice. I have noted
periodically, however, that the descriptions of emerging social practices and
the analysis of their potential by no means imply that these changes will
necessarily become stable or provide the benefits I ascribe them. They are not
a deterministic consequence of the adoption of networked computers as core
tools of information production and exchange. There is no inevitable historical
force that drives the technological-economic moment toward an open, diverse,
liberal equilibrium. If the transformation I describe actually generalizes and
stabilizes, it could lead to substantial redistribution of power and money. The
twentieth-century industrial producers of information, culture, and
communications--like Hollywood, the recording industry, [[pg 380]] and some of
the telecommunications giants--stand to lose much. The winners would be a
combination of the widely diffuse population of individuals around the globe
and the firms or other toolmakers and platform providers who supply these newly
capable individuals with the context for participating in the networked
information economy. None of the industrial giants of yore are taking this
threat lying down. Technology will not overcome their resistance through an
insurmountable progressive impulse of history. The reorganization of production
and the advances it can bring in freedom and justice will emerge only as a
result of social practices and political actions that successfully resist
efforts to regulate the emergence of the networked information economy in order
to minimize its impact on the incumbents.

Since the middle of the 1990s, we have seen intensifying battles over the
institutional ecology within which the industrial mode of information
production and the newly emerging networked modes compete. Partly, this has
been a battle over telecommunications infrastructure regulation. Most
important, however, this has meant a battle over "intellectual property"
protection, very broadly defined. Building upon and extending a
twenty-five-year trend of expansion of copyrights, patents, and similar
exclusive rights, the last half-decade of the twentieth century saw expansion
of institutional mechanisms for exerting exclusive control in multiple
dimensions. The term of copyright was lengthened. Patent rights were extended
to cover software and business methods. Trademarks were extended by the
Antidilution Act of 1995 to cover entirely new values, which became the basis
for liability in the early domain-name trademark disputes. Most important, we
saw a move to create new legal tools with which information vendors could
hermetically seal access to their materials to an extent never before possible.
The Digital Millennium Copyright Act (DMCA) prohibited the creation and use of
technologies that would allow users to get at materials whose owners control
through encryption. It prohibited even technologies that users can employ to
use the materials in ways that the owners have no right to prevent. Today we
are seeing efforts to further extend similar technological regulations-- down
to the level of regulating hardware to make sure that it complies with design
specifications created by the copyright industries. At other layers of the
communications environment, we see efforts to expand software patents, to
control the architecture of personal computing devices, and to create
ever-stronger property rights in physical infrastructure--be it the telephone
lines, cable plant, or wireless frequencies. Together, these legislative and
judicial [[pg 381]] acts have formed what many have been calling a second
enclosure movement: A concerted effort to shape the institutional ecology in
order to help proprietary models of information production at the expense of
burdening nonmarket, nonproprietary production.[^152] The new enclosure
movement is not driven purely by avarice and rent seeking--though it has much
of that too. Some of its components are based in well-meaning judicial and
regulatory choices that represent a particular conception of innovation and its
relationship to exclusive rights. That conception, focused on mass-mediatype
content, movies, and music, and on pharmaceutical-style innovation systems, is
highly solicitous of the exclusive rights that are the bread and butter of
those culturally salient formats. It is also suspicious of, and detrimental to,
the forms of nonmarket, commons-based production emerging in the networked
information economy.

This new enclosure movement has been the subject of sustained and diverse
academic critique since the mid-1980s.[^153] The core of this rich critique has
been that the cases and statutes of the past decade or so have upset the
traditional balance, in copyrights in particular, between seeking to create
incentives through the grant of exclusive rights and assuring access to
information through the judicious limitation of these rights and the
privileging of various uses. I do not seek to replicate that work here, or to
offer a comprehensive listing of all the regulatory moves that have increased
the scope of proprietary rights in digital communications networks. Instead, I
offer a way of framing these various changes as moves in a large-scale battle
over the institutional ecology of the digital environment. By "institutional
ecology," I mean to say that institutions matter to behavior, but in ways that
are more complex than usually considered in economic models. They interact with
the technological state, the cultural conceptions of behaviors, and with
incumbent and emerging social practices that may be motivated not only by
self-maximizing behavior, but also by a range of other social and psychological
motivations. In this complex ecology, institutions--most prominently,
law--affect these other parameters, and are, in turn, affected by them.
Institutions coevolve with technology and with social and market behavior. This
coevolution leads to periods of relative stability, punctuated by periods of
disequilibrium, which may be caused by external shocks or internally generated
phase shifts. During these moments, the various parameters will be out of step,
and will pull and tug at the pattern of behavior, at the technology, and at the
institutional forms of the behavior. After the tugging and pulling has shaped
the various parameters in ways that are more consistent [[pg 382]] with each
other, we should expect to see periods of relative stability and coherence.

Chapter 11 is devoted to an overview of the range of discrete policy areas that
are shaping the institutional ecology of digital networks, in which
proprietary, market-based models of information production compete with those
that are individual, social, and peer produced. In almost all contexts, when
presented with a policy choice, advanced economies have chosen to regulate
information production and exchange in ways that make it easier to pursue a
proprietary, exclusion-based model of production of entertainment goods at the
expense of commons- and service-based models of information production and
exchange. This has been true irrespective of the political party in power in
the United States, or the cultural differences in the salience of market
orientation between Europe and the United States. However, the technological
trajectory, the social practices, and the cultural understanding are often
working at cross-purposes with the regulatory impulse. The equilibrium on which
these conflicting forces settle will shape, to a large extent, the way in which
information, knowledge, and culture are produced and used over the coming few
decades. Chapter 12 concludes the book with an overview of what we have seen
about the political economy of information and what we might therefore
understand to be at stake in the policy choices that liberal democracies and
advanced economies will be making in the coming years. [[pg 383]]


----------------------------------------
CHAPTER 11 - THE BATTLE OVER THE INSTITUTIONAL ECOLOGY OF THE DIGITAL
ENVIRONMENT
------------------------------------------------------------------------------

The decade straddling the turn of the twenty-first century has seen high levels
of legislative and policy activity in the domains of information and
communications. Between 1995 and 1998, the United States completely overhauled
its telecommunications law for the first time in sixty years, departed
drastically from decades of practice on wireless regulation, revolutionized the
scope and focus of trademark law, lengthened the term of copyright,
criminalized individual user infringement, and created new para-copyright
powers for rights holders that were so complex that the 1998 Digital Millennium
Copyright Act (DMCA) that enacted them was longer than the entire Copyright
Act. Europe covered similar ground on telecommunications, and added a new
exclusive right in raw facts in databases. Both the United States and the
European Union drove for internationalization of the norms they adopted,
through the new World Intellectual Property Organization (WIPO) treaties and,
more important, though the inclusion of intellectual property concerns in the
international trade regime. In the seven years since then, legal battles have
raged over the meaning of these changes, as well [[pg 384]] as over efforts to
extend them in other directions. From telecommunications law to copyrights,
from domain name assignment to trespass to server, we have seen a broad range
of distinct regulatory moves surrounding the question of control over the basic
resources needed to create, encode, transmit, and receive information,
knowledge, and culture in the digital environment. As we telescope up from the
details of sundry regulatory skirmishes, we begin to see a broad pattern of
conflict over the way that access to these core resources will be controlled.

Much of the formal regulatory drive has been to increase the degree to which
private, commercial parties can gain and assert exclusivity in core resources
necessary for information production and exchange. At the physical layer, the
shift to broadband Internet has been accompanied by less competitive pressure
and greater legal freedom for providers to exclude competitors from, and shape
the use of, their networks. That freedom from both legal and market constraints
on exercising control has been complemented by increasing pressures from
copyright industries to require that providers exercise greater control over
the information flows in their networks in order to enforce copyrights. At the
logical layer, anticircumvention provisions and the efforts to squelch
peer-to-peer sharing have created institutional pressures on software and
protocols to offer a more controlled and controllable environment. At the
content layer, we have seen a steady series of institutional changes aimed at
tightening exclusivity.

At each of these layers, however, we have also seen countervailing forces. At
the physical layer, the Federal Communications Commission's (FCC's) move to
permit the development of wireless devices capable of self-configuring as
user-owned networks offers an important avenue for a commons-based last mile.
The open standards used for personal computer design have provided an open
platform. The concerted resistance against efforts to require computers to be
designed so they can more reliably enforce copyrights against their users has,
to this point, prevented extension of the DMCA approach to hardware design. At
the logical layer, the continued centrality of open standard-setting processes
and the emergence of free software as a primary modality of producing
mission-critical software provide significant resistance to efforts to enclose
the logical layer. At the content layer, where law has been perhaps most
systematically one-sided in its efforts to enclose, the cultural movements and
the technical affordances that form the foundation of the transformation
described throughout this book stand as the most significant barrier to
enclosure. [[pg 385]]

It is difficult to tell how much is really at stake, from the long-term
perspective, in all these legal battles. From one point of view, law would have
to achieve a great deal in order to replicate the twentieth-century model of
industrial information economy in the new technical-social context. It would
have to curtail some of the most fundamental technical characteristics of
computer networks and extinguish some of our most fundamental human motivations
and practices of sharing and cooperation. It would have to shift the market
away from developing ever-cheaper general-purpose computers whose value to
users is precisely their on-the-fly configurability over time, toward more
controllable and predictable devices. It would have to squelch the emerging
technologies in wireless, storage, and computation that are permitting users to
share their excess resources ever more efficiently. It would have to dampen the
influence of free software, and prevent people, young and old, from doing the
age-old human thing: saying to each other, "here, why don't you take this,
you'll like it," with things they can trivially part with and share socially.
It is far from obvious that law can, in fact, achieve such basic changes. From
another viewpoint, there may be no need to completely squelch all these things.
Lessig called this the principle of bovinity: a small number of rules,
consistently applied, suffice to control a herd of large animals. There is no
need to assure that all people in all contexts continue to behave as couch
potatoes for the true scope of the networked information economy to be
constrained. It is enough that the core enabling technologies and the core
cultural practices are confined to small groups-- some teenagers, some
countercultural activists. There have been places like the East Village or the
Left Bank throughout the period of the industrial information economy. For the
gains in autonomy, democracy, justice, and a critical culture that are
described in part II to materialize, the practices of nonmarket information
production, individually free creation, and cooperative peer production must
become more than fringe practices. They must become a part of life for
substantial portions of the networked population. The battle over the
institutional ecology of the digitally networked environment is waged precisely
over how many individual users will continue to participate in making the
networked information environment, and how much of the population of consumers
will continue to sit on the couch and passively receive the finished goods of
industrial information producers. [[pg 386]]

INSTITUTIONAL ECOLOGY AND PATH DEPENDENCE
.........................................

The century-old pragmatist turn in American legal thought has led to the
development of a large and rich literature about the relationship of law to
society and economy. It has both Right and Left versions, and has disciplinary
roots in history, economics, sociology, psychology, and critical theory.
Explanations are many: some simple, some complex; some analytically tractable,
many not. I do not make a substantive contribution to that debate here, but
rather build on some of its strains to suggest that the process is complex, and
particularly, that the relationship of law to social relations is one of
punctuated equilibrium--there are periods of stability followed by periods of
upheaval, and then adaptation and stabilization anew, until the next cycle.
Hopefully, the preceding ten chapters have provided sufficient reason to think
that we are going through a moment of social-economic transformation today,
rooted in a technological shock to our basic modes of information, knowledge,
and cultural production. Most of this chapter offers a sufficient description
of the legislative and judicial battles of the past few years to make the case
that we are in the midst of a significant perturbation of some sort. I suggest
that the heightened activity is, in fact, a battle, in the domain of law and
policy, over the shape of the social settlement that will emerge around the
digital computation and communications revolution.

The basic claim is made up of fairly simple components. First, law affects
human behavior on a micromotivational level and on a
macro-social-organizational level. This is in contradistinction to, on the one
hand, the classical Marxist claim that law is epiphenomenal, and, on the other
hand, the increasingly rare simple economic models that ignore transaction
costs and institutional barriers and simply assume that people will act in
order to maximize their welfare, irrespective of institutional arrangements.
Second, the causal relationship between law and human behavior is complex.
Simple deterministic models of the form "if law X, then behavior Y" have been
used as assumptions, but these are widely understood as, and criticized for
being, oversimplifications for methodological purposes. Laws do affect human
behavior by changing the payoffs to regulated actions directly. However, they
also shape social norms with regard to behaviors, psychological attitudes
toward various behaviors, the cultural understanding of actions, and the
politics of claims about behaviors and practices. These effects are not all
linearly additive. Some push back and nullify the law, some amplify its [[pg
387]] effects; it is not always predictable which of these any legal change
will be. Decreasing the length of a "Walk" signal to assure that pedestrians
are not hit by cars may trigger wider adoption of jaywalking as a norm,
affecting ultimate behavior in exactly the opposite direction of what was
intended. This change may, in turn, affect enforcement regarding jaywalking, or
the length of the signals set for cars, because the risks involved in different
signal lengths change as actual expected behavior changes, which again may feed
back on driving and walking practices. Third, and as part of the complexity of
the causal relation, the effects of law differ in different material, social,
and cultural contexts. The same law introduced in different societies or at
different times will have different effects. It may enable and disable a
different set of practices, and trigger a different cascade of feedback and
countereffects. This is because human beings are diverse in their motivational
structure and their cultural frames of meaning for behavior, for law, or for
outcomes. Fourth, the process of lawmaking is not exogenous to the effects of
law on social relations and human behavior. One can look at positive political
theory or at the history of social movements to see that the shape of law
itself is contested in society because it makes (through its complex causal
mechanisms) some behaviors less attractive, valuable, or permissible, and
others more so. The "winners" and the "losers" battle each other to tweak the
institutional playing field to fit their needs. As a consequence of these,
there is relatively widespread acceptance that there is path dependence in
institutions and social organization. That is, the actual organization of human
affairs and legal systems is not converging through a process of either Marxist
determinism or its neoclassical economics mirror image, "the most efficient
institutions win out in the end." Different societies will differ in initial
conditions and their historically contingent first moves in response to similar
perturbations, and variances will emerge in their actual practices and
institutional arrangements that persist over time--irrespective of their
relative inefficiency or injustice.

The term "institutional ecology" refers to this context-dependent, causally
complex, feedback-ridden, path-dependent process. An example of this
interaction in the area of communications practices is the description in
chapter 6 of how the introduction of radio was received and embedded in
different legal and economic systems early in the twentieth century. A series
of organizational and institutional choices converged in all nations on a
broadcast model, but the American broadcast model, the BBC model, and the
state-run monopoly radio models created very different journalistic styles,
[[pg 388]] consumption expectations and styles, and funding mechanisms in these
various systems. These differences, rooted in a series of choices made during a
short period in the 1920s, persisted for decades in each of the respective
systems. Paul Starr has argued in The Creation of the Media that basic
institutional choices--from postage pricing to freedom of the press--interacted
with cultural practices and political culture to underwrite substantial
differences in the print media of the United States, Britain, and much of the
European continent in the late eighteenth and throughout much of the nineteenth
centuries.[^154] Again, the basic institutional and cultural practices were put
in place around the time of the American Revolution, and were later overlaid
with the introduction of mass-circulation presses and the telegraph in the
mid-1800s. Ithiel de Sola Pool's Technologies of Freedom describes the battle
between newspapers and telegraph operators in the United States and Britain
over control of telegraphed news flows. In Britain, this resulted in the
nationalization of telegraph and the continued dominance of London and The
Times. In the United States, it resolved into the pooling model of the
Associated Press, based on private lines for news delivery and sharing-- the
prototype for newspaper chains and later network-television models of mass
media.[^155] The possibility of multiple stable equilibria alongside each other
evoked by the stories of radio and print media is a common characteristic to
both ecological models and analytically tractable models of path dependency.
Both methodological approaches depend on feedback effects and therefore suggest
that for any given path divergence, there is a point in time where early
actions that trigger feedbacks can cause large and sustained differences over
time.

Systems that exhibit path dependencies are characterized by periods of relative
pliability followed by periods of relative stability. Institutions and social
practices coevolve through a series of adaptations--feedback effects from the
institutional system to social, cultural, and psychological frameworks;
responses into the institutional system; and success and failure of various
behavioral patterns and belief systems--until a society reaches a stage of
relative stability. It can then be shaken out of that stability by external
shocks--like Admiral Perry's arrival in Japan--or internal buildup of pressure
to a point of phase transition, as in the case of slavery in the United States.
Of course, not all shocks can so neatly be categorized as external or
internal--as in the case of the Depression and the New Deal. To say that there
are periods of stability is not to say that in such periods, everything is just
dandy for everyone. It is only to say that the political, social, economic [[pg
389]] settlement is too widely comfortable for, accepted or acquiesced in, by
too many agents who in that society have the power to change practices for
institutional change to have substantial effects on the range of lived human
practices.

The first two parts of this book explained why the introduction of digital
computer-communications networks presents a perturbation of transformative
potential for the basic model of information production and exchange in modern
complex societies. They focused on the technological, economic, and social
patterns that are emerging, and how they differ from the industrial information
economy that preceded them. This chapter offers a fairly detailed map of how
law and policy are being tugged and pulled in response to these changes.
Digital computers and networked communications as a broad category will not be
rolled back by these laws. Instead, we are seeing a battle--often but not
always self-conscious--over the precise shape of these technologies. More
important, we are observing a series of efforts to shape the social and
economic practices as they develop to take advantage of these new technologies.

A FRAMEWORK FOR MAPPING THE INSTITUTIONAL ECOLOGY
.................................................

Two specific examples will illustrate the various levels at which law can
operate to shape the use of information and its production and exchange. The
first example builds on the story from chapter 7 of how embarrassing internal
e-mails from Diebold, the electronic voting machine maker, were exposed by
investigative journalism conducted on a nonmarket and peerproduction model.
After students at Swarthmore College posted the files, Diebold made a demand
under the DMCA that the college remove the materials or face suit for
contributory copyright infringement. The students were therefore forced to
remove the materials. However, in order keep the materials available, the
students asked students at other institutions to mirror the files, and injected
them into the eDonkey, BitTorrent, and FreeNet filesharing and publication
networks. Ultimately, a court held that the unauthorized publication of files
that were not intended for sale and carried such high public value was a fair
use. This meant that the underlying publication of the files was not itself a
violation, and therefore the Internet service provider was not liable for
providing a conduit. However, the case was decided on September 30, 2004--long
after the information would have been relevant [[pg 390]] to the voting
equipment certification process in California. What kept the information
available for public review was not the ultimate vindication of the students'
publication. It was the fact that the materials were kept in the public sphere
even under threat of litigation. Recall also that at least some of the earlier
set of Diebold files that were uncovered by the activist who had started the
whole process in early 2003 were zipped, or perhaps encrypted in some form.
Scoop, the Web site that published the revelation of the initial files,
published--along with its challenge to the Internet community to scour the
files and find holes in the system--links to locations in which utilities
necessary for reading the files could be found.

There are four primary potential points of failure in this story that could
have conspired to prevent the revelation of the Diebold files, or at least to
suppress the peer-produced journalistic mode that made them available. First,
if the service provider--the college, in this case--had been a sole provider
with no alternative physical transmission systems, its decision to block the
materials under threat of suit would have prevented publication of the
materials throughout the relevant period. Second, the existence of peer-to-peer
networks that overlay the physical networks and were used to distribute the
materials made expunging them from the Internet practically impossible. There
was no single point of storage that could be locked down. This made the
prospect of threatening other universities futile. Third, those of the original
files that were not in plain text were readable with software utilities that
were freely available on the Internet, and to which Scoop pointed its readers.
This made the files readable to many more critical eyes than they otherwise
would have been. Fourth, and finally, the fact that access to the raw
materials--the e-mails--was ultimately found to be privileged under the
fair-use doctrine in copyright law allowed all the acts that had been performed
in the preceding period under a shadow of legal liability to proceed in the
light of legality.

The second example does not involve litigation, but highlights more of the
levers open to legal manipulation. In the weeks preceding the American-led
invasion of Iraq, a Swedish video artist produced an audio version of Diana
Ross and Lionel Richie's love ballad, "Endless Love," lip-synched to news
footage of U.S. president George Bush and British prime minister Tony Blair. By
carefully synchronizing the lip movements from the various news clips, the
video produced the effect of Bush "singing" Richie's part, and Blair "singing"
Ross's, serenading each other with an eternal love ballad. No legal action with
regard to the release of this short video has been reported. However, [[pg
391]] the story adds two components not available in the context of the Diebold
files context. First, it highlights that quotation from video and music
requires actual copying of the digital file. Unlike text, you cannot simply
transcribe the images or the sound. This means that access to the unencrypted
bits is more important than in the case of text. Second, it is not at all clear
that using the entire song, unmodified, is a "fair use." While it is true that
the Swedish video is unlikely to cut into the market for the original song,
there is nothing in the video that is a parody either of the song itself or of
the news footage. The video uses "found materials," that is, materials produced
by others, to mix them in a way that is surprising, creative, and creates a
genuinely new statement. However, its use of the song is much more complete
than the minimalist uses of digital sampling in recorded music, where using a
mere two-second, three-note riff from another's song has been found to be a
violation unless done with a negotiated license.[^156]

Combined, the two stories suggest that we can map the resources necessary for a
creative communication, whether produced on a market model or a nonmarket
model, as including a number of discrete elements. First, there is the universe
of "content" itself: existing information, cultural artifacts and
communications, and knowledge structures. These include the song and video
footage, or the e-mail files, in the two stories. Second, there is the cluster
of machinery that goes into capturing, manipulating, fixing and communicating
the new cultural utterances or communications made of these inputs, mixed with
the creativity, knowledge, information, or communications capacities of the
creator of the new statement or communication. These include the physical
devices--the computers used by the students and the video artist, as well as by
their readers or viewers--and the physical transmission mechanisms used to send
the information or communications from one place to another. In the Diebold
case, the firm tried to use the Internet service provider liability regime of
the DMCA to cut off the machine storage and mechanical communications capacity
provided to the students by the university. However, the "machinery" also
includes the logical components-- the software necessary to capture, read or
listen to, cut, paste, and remake the texts or music; the software and
protocols necessary to store, retrieve, search, and communicate the information
across the Internet.

As these stories suggest, freedom to create and communicate requires use of
diverse things and relationships--mechanical devices and protocols,
information, cultural materials, and so forth. Because of this diversity of
components [[pg 392]] and relationships, the institutional ecology of
information production and exchange is a complex one. It includes regulatory
and policy elements that affect different industries, draw on various legal
doctrines and traditions, and rely on diverse economic and political theories
and practices. It includes social norms of sharing and consumption of things
conceived of as quite different--bandwidth, computers, and entertainment
materials. To make these cohere into a single problem, for several years I have
been using a very simple, three-layered representation of the basic functions
involved in mediated human communications. These are intended to map how
different institutional components interact to affect the answer to the basic
questions that define the normative characteristics of a communications
system--who gets to say what, to whom, and who decides?[^157]

These are the physical, logical, and content layers. The physical layer refers
to the material things used to connect human beings to each other. These
include the computers, phones, handhelds, wires, wireless links, and the like.
The content layer is the set of humanly meaningful statements that human beings
utter to and with one another. It includes both the actual utterances and the
mechanisms, to the extent that they are based on human communication rather
than mechanical processing, for filtering, accreditation, and interpretation.
The logical layer represents the algorithms, standards, ways of translating
human meaning into something that machines can transmit, store, or compute, and
something that machines process into communications meaningful to human beings.
These include standards, protocols, and software--both general enabling
platforms like operating systems, and more specific applications. A mediated
human communication must use all three layers, and each layer therefore
represents a resource or a pathway that the communication must use or traverse
in order to reach its intended destination. In each and every one of these
layers, we have seen the emergence of technical and practical capabilities for
using that layer on a nonproprietary model that would make access cheaper, less
susceptible to control by any single party or class of parties, or both. In
each and every layer, we have seen significant policy battles over whether
these nonproprietary or open-platform practices will be facilitated or even
permitted. Looking at the aggregate effect, we see that at all these layers, a
series of battles is being fought over the degree to which some minimal set of
basic resources and capabilities necessary to use and participate in
constructing the information environment will be available for use on a
nonproprietary, nonmarket basis. [[pg 393]]

In each layer, the policy debate is almost always carried out in local,
specific terms. We ask questions like, Will this policy optimize "spectrum
management" in these frequencies, or, Will this decrease the number of CDs
sold? However, the basic, overarching question that we must learn to ask in all
these debates is: Are we leaving enough institutional space for the
socialeconomic practices of networked information production to emerge? The
networked information economy requires access to a core set of
capabilities--existing information and culture, mechanical means to process,
store, and communicate new contributions and mixes, and the logical systems
necessary to connect them to each other. What nonmarket forms of production
need is a core common infrastructure that anyone can use, irrespective of
whether their production model is market-based or not, proprietary or not. In
almost all these dimensions, the current trajectory of
technologicaleconomic-social trends is indeed leading to the emergence of such
a core common infrastructure, and the practices that make up the networked
information economy are taking advantage of open resources. Wireless equipment
manufacturers are producing devices that let users build their own networks,
even if these are now at a primitive stage. The open-innovation ethos of the
programmer and Internet engineering community produce both free software and
proprietary software that rely on open standards for providing an open logical
layer. The emerging practices of free sharing of information, knowledge, and
culture that occupy most of the discussion in this book are producing an
ever-growing stream of freely and openly accessible content resources. The core
common infrastructure appears to be emerging without need for help from a
guiding regulatory hand. This may or may not be a stable pattern. It is
possible that by some happenstance one or two firms, using one or two critical
technologies, will be able to capture and control a bottleneck. At that point,
perhaps regulatory intervention will be required. However, from the beginning
of legal responses to the Internet and up to this writing in the middle of
2005, the primary role of law has been reactive and reactionary. It has
functioned as a point of resistance to the emergence of the networked
information economy. It has been used by incumbents from the industrial
information economies to contain the risks posed by the emerging capabilities
of the networked information environment. What the emerging networked
information economy therefore needs, in almost all cases, is not regulatory
protection, but regulatory abstinence.

The remainder of this chapter provides a more or less detailed presentation of
the decisions being made at each layer, and how they relate to the freedom [[pg
394]] to create, individually and with others, without having to go through
proprietary, market-based transactional frameworks. Because so many components
are involved, and so much has happened since the mid-1990s, the discussion is
of necessity both long in the aggregate and truncated in each particular
category. To overcome this expositional problem, I have collected the various
institutional changes in table 11.1. For readers interested only in the
overarching claim of this chapter--that is, that there is, in fact, a battle
over the institutional environment, and that many present choices interact to
increase or decrease the availability of basic resources for information
production and exchange--table 11.1 may provide sufficient detail. For those
interested in a case study of the complex relationship between law, technology,
social behavior, and market structure, the discussion of peer-to-peer networks
may be particularly interesting to pursue.

A quick look at table 11.1 reveals that there is a diverse set of sources of
openness. A few of these are legal. Mostly, they are based on technological and
social practices, including resistance to legal and regulatory drives toward
enclosure. Examples of policy interventions that support an open core common
infrastructure are the FCC's increased permission to deploy open wireless
networks and the various municipal broadband initiatives. The former is a
regulatory intervention, but its form is largely removal of past prohibitions
on an entire engineering approach to building wireless systems. Municipal
efforts to produce open broadband networks are being resisted at the state
legislation level, with statutes that remove the power to provision broadband
from the home rule powers of municipalities. For the most part, the drive for
openness is based on individual and voluntary cooperative action, not law. The
social practices of openness take on a quasi-normative face when practiced in
standard-setting bodies like the Internet Engineering Task Force (IETF) or the
World Wide Web Consortium (W3C). However, none of these have the force of law.
Legal devices also support openness when used in voluntaristic models like free
software licensing and Creative Commons?type licensing. However, most often
when law has intervened in its regulatory force, as opposed to its
contractual-enablement force, it has done so almost entirely on the side of
proprietary enclosure.

Another characteristic of the social-economic-institutional struggle is an
alliance between a large number of commercial actors and the social sharing
culture. We see this in the way that wireless equipment manufacturers are
selling into a market of users of WiFi and similar unlicensed wireless devices.
We see this in the way that personal computer manufacturers are competing [[pg
395]] over decreasing margins by producing the most general-purpose machines
that would be most flexible for their users, rather than machines that would
most effectively implement the interests of Hollywood and the recording
industry. We see this in the way that service and equipment-based firms, like
IBM and Hewlett-Packard (HP), support open-source and free software. The
alliance between the diffuse users and the companies that are adapting their
business models to serve them as users, instead of as passive consumers,
affects the political economy of this institutional battle in favor of
openness. On the other hand, security consciousness in the United States has
led to some efforts to tip the balance in favor of closed proprietary systems,
apparently because these are currently perceived as more secure, or at least
more amenable to government control. While orthogonal in its political origins
to the battle between proprietary and commons-based strategies for information
production, this drive does tilt the field in favor of enclosure, at least at
the time of this writing in 2005.

*Table 11.1: Overview of the Institutional Ecology*

.┆Enclosure┆Openness
Physical Transport┆Broadband trated by FCC as information service┆Open wireless networks
.┆DMCA ISP liability┆Municipal broadband initiatives
.┆Municipal broadband barred by states┆.
Physical Devices┆CBDPTA: regulatory requirements to implement "trusted systems"; private efforts towards the same goal┆Standardization
.┆Operator-controlled mobile phones┆Fiercely competitive market in commodity components
Logical Transmission protocols┆Privatized DNS/ICANN┆TCP/IP
.┆.┆IETF
.┆.┆p2p networks
Logical Software┆DMCA anticircumvention; Proprietary OS; Web browser; Software Patents┆Free Software
.┆.┆W3C
.┆.┆P2p software widely used
.┆.┆social acceptability of widespread hacking of copy protection
Content┆Copyright expansion: "Right to read"; No de minimis digital sampling; "Fair use" narrowed: effect on potential market "commercial" defined broadly; Criminalization; Term extension┆Increasing sharing practices and adoption of sharing licensing practices
.┆Contractual enclosure: UCITA┆Musicians distribute music freely
.┆Trademark dilution┆Creative Commons; other open publication models
.┆Database protection┆Widespread social disdain for copyright
.┆Linking and trespass to chattels┆International jurisdictional arbitrage
.┆International "harmonization" and trade enforcement of maximal exclusive rights regimes┆Early signs of a global access to knowledge movement combining developing nations with free information ecology advocates, both markets and non-market, raising a challenge to the enclosure movement

Over the past few years, we have also seen that the global character of the
Internet is a major limit on effective enclosure, when openness is a function
of technical and social practices, and enclosure is a function of law.[^158]
When Napster was shut down in the United States, for example, KaZaa emerged in
the Netherlands, from where it later moved to Australia. This force is meeting
the countervailing force of international harmonization--a series of bilateral
and multilateral efforts to "harmonize" exclusive rights regimes
internationally and efforts to coordinate international enforcement. It is
difficult at this stage to predict which of these forces will ultimately have
the upper hand. It is not too early to map in which direction each is pushing.
And it is therefore not too early to characterize the normative implications of
the success or failure of these institutional efforts.

THE PHYSICAL LAYER
..................

The physical layer encompasses both transmission channels and devices for
producing and communicating information. In the broadcast and telephone era,
devices were starkly differentiated. Consumers owned dumb terminals. Providers
owned sophisticated networks and equipment: transmitters and switches.
Consumers could therefore consume whatever providers could produce most
efficiently that the providers believed consumers would pay for. Central to the
emergence of the freedom of users in the networked environment is an erosion of
the differentiation between consumer and provider [[pg 397]] equipment.
Consumers came to use general-purpose computers that could do whatever their
owners wanted, instead of special-purpose terminals that could only do what
their vendors designed them to do. These devices were initially connected over
a transmission network--the public phone system-- that was regulated as a
common carrier. Common carriage required the network owners to carry all
communications without differentiating by type or content. The network was
neutral as among communications. The transition to broadband networks, and to a
lesser extent the emergence of Internet services on mobile phones, are
threatening to undermine that neutrality and nudge the network away from its
end-to-end, user-centric model to one designed more like a
five-thousand-channel broadcast model. At the same time, Hollywood and the
recording industry are pressuring the U.S. Congress to impose regulatory
requirements on the design of personal computers so that they can be relied on
not to copy music and movies without permission. In the process, the law seeks
to nudge personal computers away from being purely general-purpose computation
devices toward being devices with factory-defined behaviors vis-a-vis
predicted-use patterns, like glorified ` televisions and CD players. The
emergence of the networked information economy as described in this book
depends on the continued existence of an open transport network connecting
general-purpose computers. It therefore also depends on the failure of the
efforts to restructure the network on the model of proprietary networks
connecting terminals with sufficiently controlled capabilities to be
predictable and well behaved from the perspective of incumbent production
models.

TRANSPORT: WIRES AND WIRELESS
.............................

Recall the Cisco white paper quoted in chapter 5. In it, Cisco touted the value
of its then new router, which would allow a broadband provider to differentiate
streams of information going to and from the home at the packet level. If the
packet came from a competitor, or someone the user wanted to see or hear but
the owner preferred that the user did not, the packet could be slowed down or
dropped. If it came from the owner or an affiliate, it could be speeded up. The
purpose of the router was not to enable evil control over users. It was to
provide better-functioning networks. America Online (AOL), for example, has
been reported as blocking its users from reaching Web sites that have been
advertised in spam e-mails. The theory is that if spammers know their Web site
will be inaccessible to AOL customers, they will stop.[^159] The ability of
service providers to block sites or packets from [[pg 398]] certain senders and
promote packets from others may indeed be used to improve the network. However,
whether this ability will in fact be used to improve service depends on the
extent to which the interests of all users, and particularly those concerned
with productive uses of the network, are aligned with the interests of the
service providers. Clearly, when in 2005 Telus, Canada's second largest
telecommunications company, blocked access to the Web site of the
Telecommunications Workers Union for all of its own clients and those of
internet service providers that relied on its backbone network, it was not
seeking to improve service for those customers' benefit, but to control a
conversation in which it had an intense interest. When there is a misalignment,
the question is what, if anything, disciplines the service providers' use of
the technological capabilities they possess? One source of discipline would be
a genuinely competitive market. The transition to broadband has, however,
severely constrained the degree of competition in Internet access services.
Another would be regulation: requiring owners to treat all packets equally.
This solution, while simple to describe, remains highly controversial in the
policy world. It has strong supporters and strong opposition from the incumbent
broadband providers, and has, as a practical matter, been rejected for the time
being by the FCC. The third type of solution would be both more radical and
less "interventionist" from the perspective of regulation. It would involve
eliminating contemporary regulatory barriers to the emergence of a user-owned
wireless infrastructure. It would allow users to deploy their own equipment,
share their wireless capacity, and create a "last mile" owned by all users in
common, and controlled by none. This would, in effect, put equipment
manufacturers in competition to construct the "last mile" of broadband
networks, and thereby open up the market in "middle-mile" Internet connection
services.

Since the early 1990s, when the Clinton administration announced its "Agenda
for Action" for what was then called "the information superhighway," it was the
policy of the United States to "let the private sector lead" in deployment of
the Internet. To a greater or lesser degree, this commitment to private
provisioning was adopted in most other advanced economies in the world. In the
first few years, this meant that investment in the backbone of the Internet was
private, and heavily funded by the stock bubble of the late 1990s. It also
meant that the last distribution bottleneck--the "last mile"--was privately
owned. Until the end of the 1990s, the last mile was made mostly of dial-up
connections over the copper wires of the incumbent local exchange carriers.
This meant that the physical layer was not only [[pg 399]] proprietary, but
that it was, for all practical purposes, monopolistically owned. Why, then, did
the early Internet nonetheless develop into a robust, end-to-end neutral
network? As Lessig showed, this was because the telephone carriers were
regulated as common carriers. They were required to carry all traffic without
discrimination. Whether a bit stream came from Cable News Network (CNN) or from
an individual blog, all streams-- upstream from the user and downstream to the
user--were treated neutrally.

The end of the 1990s saw the emergence of broadband networks. In the United
States, cable systems, using hybrid fiber-coaxial systems, moved first, and
became the primary providers. The incumbent local telephone carriers have been
playing catch-up ever since, using digital subscriber line (DSL) techniques to
squeeze sufficient speed out of their copper infrastructure to remain
competitive, while slowly rolling out fiber infrastructure closer to the home.
As of 2003, the incumbent cable carriers and the incumbent local telephone
companies accounted for roughly 96 percent of all broadband access to homes and
small offices.[^160] In 1999-2000, as cable was beginning to move into a more
prominent position, academic critique began to emerge, stating that the cable
broadband architecture could be manipulated to deviate from the neutral,
end-to-end architecture of the Internet. One such paper was written by Jerome
Saltzer, one of the authors of the paper that originally defined the
"end-to-end" design principle of the Internet in 1980, and Lessig and Mark
Lemley wrote another. These papers began to emphasize that cable broadband
providers technically could, and had commercial incentive to, stop treating all
communications neutrally. They could begin to move from a network where almost
all functions are performed by user-owned computers at the ends of the network
to one where more is done by provider equipment at the core. The introduction
of the Cisco policy router was seen as a stark marker of how things could
change.

The following two years saw significant regulatory battles over whether the
cable providers would be required to behave as commons carriers. In particular,
the question was whether they would be required to offer competitors
nondiscriminatory access to their networks, so that these competitors could
compete in Internet services. The theory was that competition would discipline
the incumbents from skewing their networks too far away from what users valued
as an open Internet. The first round of battles occurred at the municipal
level. Local franchising authorities tried to use their power [[pg 400]] over
cable licenses to require cable operators to offer open access to their
competitors if they chose to offer cable broadband. The cable providers
challenged these regulations in courts. The most prominent decision came out of
Portland, Oregon, where the Federal Court of Appeals for the Ninth Circuit held
that broadband was part information service and part telecommunications
service, but not a cable service. The FCC, not the cable franchising authority,
had power to regulate it.[^161] At the same time, as part of the approval of
the AOL-Time Warner merger, the Federal Trade Commission (FTC) required the new
company to give at least three competitors open access to its broadband
facilities, should AOL be offered cable broadband facilities over Time Warner.

The AOL-Time Warner merger requirements, along with the Ninth Circuit's finding
that cable broadband included a telecommunications component, seemed to
indicate that cable broadband transport would come to be treated as a common
carrier. This was not to be. In late 2001 and the middle of 2002, the FCC
issued a series of reports that would reach the exact opposite result. Cable
broadband, the commission held, was an information service, not a
telecommunications service. This created an imbalance with the
telecommunications status of broadband over telephone infrastructure, which at
the time was treated as a telecommunications service. The commission dealt with
this imbalance by holding that broadband over telephone infrastructure, like
broadband over cable, was now to be treated as an information service. Adopting
this definition was perhaps admissible as a matter of legal reasoning, but it
certainly was not required by either sound legal reasoning or policy. The FCC's
reasoning effectively took the business model that cable operators had
successfully used to capture two-thirds of the market in broadband--bundling
two discrete functionalities, transport (carrying bits) and higher-level
services (like e-mail and Web hosting)--and treated it as though it described
the intrinsic nature of "broadband cable" as a service. Because that service
included more than just carriage of bits, it could be called an