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Cyberspace As Place and the Tragedy of the Digital Anticommons

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Cyberspace As Place and the Tragedy of the Digital Anticommons Cyberspace as Place and the Tragedy of the Digital Anticommons Dan Huntert TABLE OF CONTENTS Introduction .............................................................................................. 442 I. Cyberspace as Autonomous Legal Place ........................................... 446 A. The History of Cyberspace as a Legal Place .............................. 447 B. Reconsidering Autonomy and Place ........................................... 452 C. City of Bits, Sense of Place ........................................................ 454 II. M etaphor in L aw ............................................................................... 458 A. Thinking and Talking in Metaphors ........................................... 460 B. Cognitive Metaphors ................................................................... 465 1. Interaction Theory of Metaphor ........................................... 467 2. Lakoff and Metaphor ............................................................ 469 III. Cyberspace as Legal Place ............................................................... 472 A . C rim e O nline .............................................................................. 475 B. Resurrecting Trespass to Chattels ............................................... 483 C. The Cyberspace Constitution ...................................................... 488 1. Public Parks in Cyberspace .................................................. 488 2. Searching Cyberspace .......................................................... 494 D. Zoning, Jurisdiction, and Names ................................................ 497 IV. The Digital Anticommons ................................................................. 500 A. The Cyberspace Enclosure Movement ....................................... 503 1. Property and Invitees ............................................................ 504 2. The Consequences ................................................................ 507 B. The Tragedy of the Digital Anticommons .................................. 509 Copyright © 2003 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. t Robert F. Irwin IV Term Assistant Professor of Legal Studies, Wharton School, University of Pennsylvania. Email: [email protected]. 1 am indebted to John Allison, Michael Bimhack, Brian Bix, Mark Eckenwiler, Orin Kerr, Steve Kobrin, Greg Lastowka, Bill Laufer, Michael Madison, Georgette Poindexter, David Post, Thomas Reidel, Ed Rubin, Tom Ulen, Polk Wagner, Jane Winn, Tim Wu, and especially Mark Lemley, for invaluable advice, comments, and ideas. The usual disclaimer applies. I am grateful for the comments of colleagues at workshops at the Singapore Management University and the Warrington College of Business of the University of Florida. Stephen Sempill, Veronica Silva-Minin, and Eleonora Vicchi provided invaluable research assistance. Research support came in part from the Wharton Legal Studies Research Fund, the Wharton-Singapore Management University Research Center, and the Jones Center for Management Policy, Strategy, and Organization and the Mack Center for Technological Innovation at the Wharton School. 440 CALIFORNIA LA W RE VIEW [Vol. 91:439 C. Restoring the Com mons .............................................................. 514 1. Sw itching M etaphors ............................................................ 514 2. Rethinking the Implications ................................................. 516 Conclusion ............................................................................................... 518 2003] CYBERSPACE AS PLACE Cyberspace as Place and the Tragedy of the Digital Anticommons Dan Hunter Cyberspace was once thought to be the modern equivalent of the Western Frontier,a place where land was free for the taking. This is true no longer. This Article argues that we are enclosing cyberspace and im- posing private property conceptions upon it. As a result, we are creating a digital anticommons where suboptimal use of Internet resources will be the norm. Part I shows why initial discussions of the CYBERSPACE AS PLACE metaphor have confused the descriptive question of how we think about cyberspace with the normative question of how we should regulate cyber- space. It suggests that we can bracket the normative question and still an- swer the descriptive question of whether we think of cyberspace as a place. Part H examines the lessons of recent cognitive science studies, and demonstrates the importance of physical metaphors within our cognitive system. It then reviews the evidence of our use of the physical metaphor, CYBERSPACE AS PLACE, in understandingonline communication environ- ments. Part III focuses on this metaphor's unacknowledged and unrecog- nized influence on the development of the legalframework for the Internet. It examines tortious, criminal, and constitutional law responses to cyber- space, and concludes that the CYBERSPACE AS PLACE metaphor exercises a strong and unrecognized influence on the regulatory regimes of cyber- space. Part IV details why the effects of that metaphor's use-including the idea that there is property online, and that this property should be pri- vately owned, parceled out, and exploited-are extremely troubling. Though private ownership of resources is not itselfproblematic, it can lead to the opposite of the tragedy of the commons: the tragedy of the anti- commons. Anticommons property occurs when multiple parties have an effective right to prevent others from using a given resource, and as a re- sult no one has an effective right of use. Part IV argues that this is pre- cisely where the CYBERSPACE AS PLACE metaphor leads. We are moving towards a digital anticommons, where no one will be allowed to access CALIFORNIA LA W REVIEW [Vol. 91:439 competitors' cyberspace "assets" without a license or other transaction- ally expensive or impossible permission mechanism. This Article explains how the CYBERSPACE AS PLACE metaphor leads to undesirableprivate control of the previously commons-like Internet and the emergence of a digital anticommons. As we all stake out our little claims in cyberspace, we destroy the cyberspace commons. INTRODUCTION In the early days of computer networks it seemed a slightly far-fetched metaphor to describe ... sites as "places," since bandwidth was narrow .... As bandwidth burgeons and computing muscle continues to grow, cyberspace places will present themselves in increasingly multisensory and engaging ways .... We will not just look at them; we will feel present in them.' Historians will look back to these early years of the twenty-first century as the moment when the tipping point became apparent. It is not too portentous to say that we stand at the fork between two possible futures of intellectual endeavor. Down one road lies a future of completely proper- tized and privatized ownership of intellectual activity. Down the other road is a future where the interests of society at large are fostered, which at times leads to private ownership of intellectual activity, and at other times demands that some public intellectual space be kept as commons for all. Others have made this observation within the spheres of intellectual property rights such as copyright2 and patent.' The concern also appears to have motivated the Supreme Court's decision to grant certiorari in Eldred v. Ashcroft, a case challenging congressional extension of copyright terms,4 even if the Court concluded that the extension was constitutional. How- ever, the focus on intellectual property interests masks the area where the trend to propertize ideas has exerted its most pernicious effect: the Internet. Cyberspace was once thought to be the modern equivalent of the Western Frontier.' It was a place, albeit an abstract place, where land was free for the taking, explorers could roam, and communities could form with 1. WILLIAM J. MITCHELL, CITY OF BITS: SPACE, PLACE, AND THE INFOBAHN 114-15 (1995). 2. See Lawrence Lessig, The Architecture of Innovation, 51 DUKE L.J. 1783 (2002), available at http://www.law.duke.edu/pd/papers/lessig.pdf, JAMES BOYLE, THE SECOND ENCLOSURE MOVEMENT AND THE CONSTRUCTION OF THE PUBLIC DOMAIN 1-4, at http://www.law.duke.edu/pd/papers/boyle.pdf (last visited Mar. 23, 2002). 3. See BOYLE, supra note 2, at 4-5. 4. Eldred v. Reno, 239 F.3d 372 (D.C. Cir. 2001), aff'd sub nom., Eldred v. Ashcroft, 123 S. Ct. 769 (2003). 5. See, e.g., Jonathan J. Rusch, Cyberspace and the "Devil ' Hatband",24 SEATTLE U. L. REV. 577, 577-79 (2000). 2003] CYBERSPACE AS PLACE their own rules.6 It was an endless expanse of space: open, free, replete with possibility. 7 No longer. As with the Western Frontier, settlers have entered this new land, charted the territory, fenced off their own little claims, and erected "No Trespassing" signs.' Cyberspace is being subdi- vided. Suburbs and SUVs cannot be far off. Since cyberspace seems like a place, this trend seems preor- dained: the progression of property interests over the last five hundred years shows that places tend to be enclosed and privately exploited.9 How- ever, it is a surprising trend because legal commentators have convinced us that cyberspace is not a place at all. Some early scholars argued that cyber- space was a separate space for the purposes of law and regulation," but they were quickly derided for their nafvet6." By the end of the last century, the
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