The Internet Is a Semicommons
GRIMMELMANN_10_04_29_APPROVED_PAGINATED 4/29/2010 11:26 PM THE INTERNET IS A SEMICOMMONS James Grimmelmann* I. INTRODUCTION As my contribution to this Symposium on David Post’s In Search of Jefferson’s Moose1 and Jonathan Zittrain’s The Future of the Internet,2 I’d like to take up a question with which both books are obsessed: what makes the Internet work? Post’s answer is that the Internet is uniquely Jeffersonian; it embodies a civic ideal of bottom-up democracy3 and an intellectual ideal of generous curiosity.4 Zittrain’s answer is that the Internet is uniquely generative; it enables its users to experiment with new uses and then share their innovations with each other.5 Both books tell a story about how the combination of individual freedom and a cooperative ethos have driven the Internet’s astonishing growth. In that spirit, I’d like to suggest a third reason that the Internet works: it gets the property boundaries right. Specifically, I see the Internet as a particularly striking example of what property theorist Henry Smith has named a semicommons.6 It mixes private property in individual computers and network links with a commons in the communications that flow * Associate Professor, New York Law School. My thanks for their comments to Jack Balkin, Shyam Balganesh, Aislinn Black, Anne Chen, Matt Haughey, Amy Kapczynski, David Krinsky, Jonathon Penney, Chris Riley, Henry Smith, Jessamyn West, and Steven Wu. I presented earlier versions of this essay at the Commons Theory Workshop for Young Scholars (Max Planck Institute for the Study of Collective Goods), the 2007 IP Scholars conference, the 2007 Telecommunications Policy Research Conference, and the December 2009 Symposium at Fordham Law School on David Post’s and Jonathan Zittrain’s books.
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