Saving the Information Commons A New Public Intere s t Agenda in Digital Media

By David Bollier and Tim Watts

NEW AMERICA FOUNDA T I O N

PUBLIC KNOWLEDGE Saving the Information Commons A Public Intere s t Agenda in Digital Media

By David Bollier and Tim Watts

Washington, DC Ack n owl e d g m e n t s

This report required the support and collaboration of many people. It is our pleasure to acknowledge their generous advice, encouragement, financial support and friendship. Recognizing the value of the “information commons” as a new paradigm in public policy, the Ford Foundation generously supported New America Foundation’s Public Assets Program, which was the incubator for this report. We are grateful to Gigi Sohn for helping us develop this new line of analysis and advocacy. We also wish to thank The Open Society Institute for its important support of this work at the New America Foundation, and the Center for the Public Domain for its valuable role in helping Public Knowledge in this area. Within the New America Foundation, Michael Calabrese was an attentive, helpful colleague, pointing us to useful literature and knowledgeable experts. A special thanks to him for improv- ing the rigor of this report. We are also grateful to Steve Clemons and Ted Halstead of the New America Foundation for their role in launching the Information Commons Project. Our research and writing of this report owes a great deal to a network of friends and allies in diverse realms. For their expert advice, we would like to thank Yochai Benkler, Jeff Chester, Rob Courtney, Henry Geller, Lawrence Grossman, Reed Hundt, Benn Kobb, David Lange, Jessica Litman, Eben Moglen, John Morris, Laurie Racine and Carrie Russell. Tina Sherman and Hannah Fischer both provided careful and thorough oversight of this report’s production. For his smart graphic design, we again thank Donald Norwood of 5 on your eye design.

David Bollier Amherst, Massachusetts

Tim Watts Melbourne, Australia

May 2002

About the Au th o rs

David Bollier is Director of the Information Commons Project at the New America Founda- tion, a Senior Fellow at the Norman Lear Center at the USC Annenberg School for Commu- nication, an advisor to Norman Lear, and a strategic consultant to foundations, nonprofits and citizen groups. He is also co-founder of Public Knowledge, a public-interest advocacy organiza- tion dedicated to defending the commons of the Internet, science and culture. He is based in Amherst, Massachusetts, and can be reached at [email protected]. Tim Watts is the CEO of OzProspect, a nonpartisan policy think tank based in Melbourne, Australia (www.ozprospect.org). He is a regular contributor of commentary and analysis to BRW magazine, the Australian Financial Review, The Australianand The Boston Globe. He can be reached at [email protected].

©2002 New America Foundation & Public Knowledge Contents

Introduction ...... 1

I. The Rise of the Information Commons...... 7 A Place of Our Own: Online Libraries and Archi ve s...... 10 The Inter n e t Commons as Online Collaboration...... 14 The Open Source Softwa r e Revol u t i o n...... 19 The Pee r- to - P eer Revolu t io n......

II . Sa ve the Inter n e t Commons: Requ i r e an Open, Accessible Infrastruc t u r e...... 2 5 The Fut u r e of Open Stan d a rd s...... Ho t Zones for Inter n e t Stan d a r d Sett i n g.. . . . 28 Pr o tecting Open Access to the Inter n e t.. 32 The Danger s of Media Concentration .. . . . 35

II I . Pr otect the Public Domain: Limit The Copyright Monopoly...... 3 9 Ma k e it Easy to Put Wor ks into the Public Domain...... 41 Sh o r ten the Term of Copyr i g h t...... Af firm Broad Fair Use Rights for the Public...... 4 3 Roll Back the Digital Millennium Copyright Act...... 4 6 Af firm Free Speech over Tra d e m a r k Law...... 47 Pr o m o te the General Public License in Softwa r e ...... 4 9 Ex p l o r e GPL-l i k e Licenses in Other Media ...... 5 0

IV .For tify the Information Commons: Ado p t Innovat i v e Policy Initiatives...... 53 Earning a Fair Return on Our Airwaves.. . . . 54 The Digital Opportunity Inves tment Trus t ...... 57 The New Voices Initiative...... The Open Spectrum Project...... Managing Government Information as If Citizens Matter ed ...... 6 3

Conclusion: A Return to Fir st Principles ...... 67

Reader Res o u rc e s...... 71

Notes...... Introduction

weeping changes in our nation’s communications infrastruc t u r e and markets over the past twenty years have radically changed the topography of the pub- Slic sphere and democratic culture. But the mental maps which many people use to conceive “the public interest” in communications hark back to circa 1975, a time when the traditional broadcast model dominated and there were only three co m m e r cial television networks, cable TV consisted of “community antennae” to reach rural areas and even the VCR had not yet been unleashed. In the 1970s, the public interest in broadcasting was about the Fairness Doctrine, general content guidelines and public television subsidies. Times have changed. Over the past generation, the Internet, the World Wid e Web, cable television, wireless and many other electronic technologies have dra- matically changed market struc t u r es and people’s use of communications media. By any absolute measure, the new technologies have yielded huge increases in the quantities of information and programming available to Americans. They have also given individual citizens a much greater ability to create and control content. The flows of information and entertainment, and people’s access to and control over it, are changing rapidly. Amidst the boom in telecommunications, the Internet and new television out- lets that dominated press attention over the past decade, relatively little attention has been paid to the fate of the public interest. Among the “old media”—broa d - casting and cable television—the entrep r eneurial zeal that gave birth to country music networks, science fiction networks and infomercial channels has not been noticeably directed towards the nation’s many civic, political, cultural, arti s t i c ,

1 Introduction

no n p r ofit and community needs. Notwith- the information commons—that now coexists standing innovations such as C-SPAN and alongside the mass media, which is chiefly new niche commercial networks, entire genres br oadcast and cable television. of public interest programming have virtu a l l y The result is a strangely bifurcated media di s a p p e a r ed from television. It is difficult to universe. On the one hand, there is televi- find thoughtful news and commentary, timely sion, which is doing far less to serve the pub- public affairs documentaries, high-quality edu- lic interest than a generation ago despite the cational prog r a m m i n g proliferation of channels. Broadcast news …t he Inter n e t has for children, original programs may be far more plentiful than local programming and twenty years ago, for example, but even vet- us h e r ed in a cultural and daring arts and cultural eran journalists question whether the market- pr ogramming. Public driven flood of tabloid fare and sensational- political peres t ro i k a of television, for its part, ism is serving the public or its own profes- has become far more sion well.1 The broadcast media, now more enormous prop o rt i o n s . co m m e r cial in orienta- consolidated than ever, considers it too tion, eschewing the con- expensive to give more than passing coverage Individuals now have the tr oversial, innovative to state election campaigns. and offbeat while quietly On the other hand, the Internet has grea t l y means to byp a s s in t r oducing more adver- expanded the spaces and modalities available tisements and cryp t o - for serving important non-market, public traditional publishers ma r k e t i n g . in t e r est needs. Thanks to the low-cost, flexible As two major commu- capabilities of the Internet, individuals with and become crea t o r s and nications media—televi- highly specific interests can now locate each sion and the Interne t — other and organize themselves as robust com- global publishers in the i r have collided, we are munities. Affinity groups and communities of faced with a diffi c u l t all varieties—largely exiled from the broa d c a s t own right. question: How are we to media since 1934—are now able to develop conceptualize the public their own distinctive voices in cyberspace. in t e r est in this brave new world? Instead of seller-s p o n s o r ed enterta i n m e n t If even a robust, highly diversified media and information moving from centralized marketplace cannot meet certain societal so u r ces to great masses of citizens in a one- needs, what new public policies need to be way flow (after first being vetted by corporate adopted? Can certain technologies, innova- ad v e r tisers), the Internet has ushered in a cul- tions in private law and voluntary social norms tural and political pe re s t ro i k a of enormous pro- do a better job than public policy alone? po r tions. Individuals now have the means to This rep o r t is an attempt to help answer bypass traditional publishers and become cre- these questions while developing some new ators and global publishers in their own right. concepts and language for advancing the pub- New publics can come together with astonish- lic interest in the digital age. We argue that ing ease and speed. Elite, centralized authority the Internet has given rise to an entirely new and expertise must now compete with self- so r t of public and democratic cultural space— or ganized networks of Internet users who

2 Saving the Information Commons

as s e r t their own authority and novel genres of At a time when practical definitions of the distributed intelligence. public interest in communications rem a i n While the corporate mass media will surel y un c l e a r , this rep o r t has three primary goals: persist in the years ahead, the rise of the In t e r net commons may be the most signifi- 1. To identify the commons as a new concept cant public interest media phenomenon of for understanding the public interest in dig- our times. Since the World Wide Web hit ital media; popular culture in 1995, more than three 2. To showcase the rich variety of communica- billion public webpages have been created on tions commons that are now invigorating about 20 million websites. Companies have our economy and culture; and built only about 30 percent of public web- 3. To identify innovative strategies that can pages for commercial purposes; the rest are fo r tify the commons and/or protect them the creations of “we the people.” fr om privatization and commercialization. The problem is that we do not conceptual- ize and celebrate this remarkable effusion of This rep o r t does not aspire to propose a com- no n - c o m m e r cial content as a preeminent pub- pr ehensive blueprint. It aims to outline a gen- lic interest achievement. Focused on the high- eral framework for understanding the com- pr ofile commercial sites, we do not see the mons in public communications. It seeks to In t e r net as a massive commons. This has trou - document the rise of the information com- bling but largely unplumbed implications for mons, identify key threats to its future and our democratic culture. commend a variety of creative initiatives that Despite its size and vitality, the Internet can save and sustain it. commons is vulnerable. As we will see in the Why talk about the commons? We believe following pages, many commercial interests that a language of the commons helps focus would like to transform the open architecture attention on certain values that market players of the Internet into a more closed and con- la r gely ignore. Media enterprises and econo- trolled system. Cable broadband systems are mists tend to focus on effi c i e n c y , prod u c t i v i t y seeking to erect proprietary “walled gardens” and prof i t a b i l i t y . A commons analysis gives us a and would like to introduce different tiers of way to speak coherently about another matrix Internet service. Certain software companies of concerns that are not given sufficient atten- see big private gains to be made by subvert- tion: democratic participation, openness, social ing open Internet standards and neutralizing equity and diversity. The commons deals with the open source software movement. Many no n - c o m m e r cial dimensions of American life content industries are seeking to use copy- that are not key priorities for market-driven right law to ban the traditional rights of indi- enterprises, but which nonetheless are vital to viduals to share and reuse the content they our society. These aspects of communications buy. If such trends continue without chal- in American society have little coherent arti c u - lenge, the Internet will soon morph into a lation in policy deliberations today. pay-per-use vending machine and a priva- It bears noting that the commons is not tized public square. hostile to market forces; it merely insists upon a proper balance between those sorts of

3 Introduction

ex p r ession and entertainment that the market- The Plan of This Rep o r t place provides, and those modes of civic, Although discussions about the public interes t cultural and social communication that are in the media have historically focused on nourished in a commons. Markets that are br oadcasting, this rep o r t aims to expand that excessively concentrated and powerful tend discussion to the Internet and other digital to “enclose” the information commons and communications technologies. Curren t l y , its distinctive types of communication. issues of public interest here are seen as In a time when market categories have virtu - eclectic, novel and sometimes confusing. This ally eclipsed consideration of other values— rep o r t is an attempt to synthesize a diverse especially those values important to our demo- ar ray of issues by contextualizing them in a cratic polity—a language of the commons helps new and unitary framework: the framework of us rea s s e r t the values of civil society. The com- the commons. While much more could be mons not only helps explain the many new said about all of the topics covered, each sec- modes of online social organization and com- tion is necessarily succinct so that we can tra- munications. It helps us talk more cogently verse a great expanse of material. about constitutional and democratic norms that Pa r t I describes some rep r esentative com- ar e threatened in the new digital environ m e n t . mons in the new public interest space of the As for the public interest obligations of In t e r net. Like markets, commons vary. The br oadcasters—the “old media”—it is best to In t e r net commons include open source soft- openly concede that the public trustee notion wa r e communities, Internet libraries and of broadcasting has been largely eviscerated ar chives, user-managed websites and peer-t o - th r ough deregulation and, for complex rea - peer file sharing. sons, is not likely to be resuscitated. That does What unites these diffe r ent commons is their not mean that this field of struggle should be facilitation of online collaboration, especially abandoned as a lost cause. But it does suggest for non-commercial purposes. Birdwatchers can that we should explore more politically feasi- track the migration of rare species and so gen- ble and practical alternatives to the (failed) erate new environmental knowledge; little- policies of using regulation to make broa d c a s t - known Vietnamese folk songs can be gathered ers serve as enthusiastic trustees of the public and pres e r ved on a Web archive; physicists in good. Especially as the TV marketplace has Africa can share cutting-edge res e a r ch papers gr own more competitive, the notion of broa d - with their peers in Europe and North America; casters discharging their public obligations as and so on. Part I illustrates in some detail how conscientious trustees of the airwaves has the cyber-commons serve important public pr oven to be a legal morass and expedient fic- in t e r est values. tion. The actual public benefits have been But can we keep the commons open, rob u s t exceedingly modest. Why not liquidate the and secure? The next three sections outline a public interest obligations of broa d c a s t e r s variety of policies and initiatives that are th r ough cash payments, as Henry Geller has needed to protect the information commons. pr oposed, and use those monies to serve pub- Pe r haps most critical is an open, nondis- lic needs in communications directly? Alterna - cr i m in a t o r y Internet arch i t e c t u r e. Part II tives must be explored . describes four particular aspects of the Interne t

4 Saving the Information Commons

in f r a s t ru c t u r e that must be addressed: open powers to control how people may use ebooks In t e r net standards, software protocols and and CDs; and copyright and trademark laws open source software; specific realms of Inter- ar e being used to diminish free speech rights. net standards setting; open, nondiscriminatory Pa r t III looks at some of the proposals that user access to the Internet; and limits on have been made to confront this tide of over- media concentration. pro p e r tization and protect the informa t i o n But an open Internet arch i t e c t u r e is not commons. Among the proposals: to shorte n enough. We must also have a commons of copyright terms; to allow the easy placement public knowledge. Part III describes how we of creative works into the public domain; to must protect the information commons roll back the draconian provisions of the Digi- against over-p ro p e r tization. This is a grow i n g tal Millennium Copyright Act; and to ref o r m danger as various content industries—publish- the governance of the Internet Corporation ers, studios, rec o r d labels and data vendors— for Assigned Names and Numbers (ICANN), intensify pres s u r es on Congress and the courts the quasi-private body that administers the to expand prop e r ty rights in creativity and In t e rn e t ’ s domain names so that the public’s in f o r mation at the expense of free expres s i o n in t e r ests and speech are not subordinated to and a vital public domain. co m m e r cial interests. The public domain is the legal term that has The government has an important, proa c - historically been used to describe material tive role to play in assuring that the commons open for all to use. Creative work or informa - flourishes. Part IV outlines several imaginative tion can be “free” in the sense of not having to policy initiatives that would give citizens pay money (two examples include the fair use gr eater access to information and more doctrine in copyright law and the right to link diverse, non-commercial sources of content in to websites as one sees fit). Or it can be “free ” television, on the Internet and through gov- in the sense that, while it costs money, anyone er nment itself. may have access to it without first getting per- Under one intriguing proposal, broa d c a s t e r s mission from someone claiming prop r i e t a r y and other commercial users of the public air- ownership. (Laws mandating nondiscrimina- waves would pay a spectrum usage fee that to r y (or compulsory) licensing of music to would be used to finance new content for br oadcasters is an example of this.) diverse public interest constituencies. Part IV In his recent book, The Future of Ideas, examines proposals to create a governm e n t - Pr ofessor Lawrence Lessig explains how a ch a rt e r ed trust fund for public interest content; rich and vibrant public domain is critical to a venture capital fund for innovative Interne t the future of innovation and to an open, demo- content; and the Open Spectrum Project, a cratic society. Yet in recent years, the public pr oposal to change FCC spectrum manage- domain has been under siege. The length of ment policies to provide everyone with com- copyright terms has been extended by twenty mons-like access to the airwaves (nondiscrimi- years, the eleventh extension in forty years; the na t o r y access similar to the Internet) rather pu b l i c ’ s customary fair use rights in digital than relying primarily on exclusive long-term works are under aggressive attack; digital rights licenses to private companies. A healthy management systems are giving sellers new democracy req u i r es plentiful, reliable informa -

5 Introduction

tion, which is why government must also take 3. Allow new technologies to evolve and inno- new steps to manage its vast stores of govern- vate without being quashed or subverted by ment information as if citizens mattered. existing media industries. “W e inherited freedom,” said Adlai E. 4. En s u r e that First Amendment freedoms are Stevenson many years ago. “We seem unaware fully applied to individual citizens—the pri- that freedom has to be remade and re- e a rn e d ma r y constituent of our democratic polity— in each generation of man.” In a similar spirit, and only secondarily to media corporations. this rep o r t calls for a ret u r n to first princi- 5. Revisit the cultural bargain of copyright and ples—and a rei n t e r p r etation of those princi- trademark law to assure that the public gets a ples in the context of our new digital media fair ret u r n for the monopoly rights it gives. en v i r onment. These principles include: 6. Devise innovative policy structures that can affirmatively protect the information 1. Pre s e r ve significant slices of the communi- commons against proprietary free riders, cations infrastruc t u r e for non-commerci a l as the General Public License has done for varieties of communication, and prov i d e open source software and as the spectrum su f ficient legal and financial support for commons proposes to do for wireless cr eativity in these spaces. communications. 2. Assure that markets are truly open, com- 7. As s u r e that the public reaps a fair ret u r n on petitive and diverse, and not closed and the private uses of public assets, such as the concentrated. el e c t r omagnetic spectrum .

6 I. The Rise of the Information Commons

he shifting nature of “the public interest” in our media landscape may be T best explained by two stories. Call them Thenand Now. The n : In 1982, the Syracuse Peace Council complained to the Federal Communications Commission that a local television station had sold 182 minutes of advertising promoting a nuclear power plant in its community while ignoring countervailing perspectives. The FCC ag r eed with the complaint and, relying on Fairness Doctrine regulations,de r ed or the station to correct its unbalanced coverage. The FCC orderfi r med af that citizens have a legal right of access to the airwaves that they collectively own, and that broadcasters cannot assert exclu- sive free speech rights in the medium. The TV station responded with a lawsuit,gu i n g ar that under the First Amendment, the government cannot compel a broadcaster to air oppos- ing viewpoints. Within a few years the Fairness Doctrine had been essentially rescinded.

Now : In 2001, thousands of citizens in upstate New York were angry at General Elec- tric for its role in polluting the Hudson River with tons of PCBs over decades. When GE resisted a government proposal to dredge the river bottom, protesters launched their own website, www.C l e a n U p G E . o g,r to argue their case with detailed documents, links to other websites and streaming video interviews with GE critics. By erecting their own media platform in cyberspace, protesting citizens were able to influence public opinion and pr od the Environmental Protection Agency to enforce the law. Meanwhile, citizens of other political persuasions—from journalist Matt Drudge to the conservativeee Fr Republic website to anti-globalization activists—routinely use the Internet to speak to and organize their fellow citizens.

7 The Rise of the Information Commons

When compared with “Then,” the second tion, creativity and authoritative knowledge vignette, “Now,” speaks volumes about the to arise. new sorts of empowerment that ordi n a r y citi- Particularly since the advent of the World zens are achieving through the Internet. It Wide Web in 1995, millions of Internet users rep r esents a remarkable advance over the very have learned that they need not be passive limited kinds of access and influence that citi- consumers, surrendering their eyeballs to zens previously had broadcast networks and advertisers. They Part i c u l a r ly since the th r ough broa d c a s t i n g . can take charge of their culture and become Although broa d c a s t e r s active creators and citizens. By constructing ad v ent of the Wor ld Wid e continue to assert exclu- their own online commons, the boundaries sive control over the that once separated broadcasters from viewers, Web in 1995, millions of pu b l i c ’ s airwa v e s — publishers from readers and sellers from buy- thanks to the sweeping ers are blurring. Participants in Internet In te r n e t users have de r egulation of the commons assume bothroles. What has 1990s—millions of indi- resulted is an unprecedented range of non- learned that the y need viduals and niche con- commercial expression, civic engagement stituencies have built and cultural ferment. no t be passive consumers, their own public plat- This has occurred, moreo v e r , on an Interne t fo r ms on the Internet. without the capacity to deliver interactive or su r r endering the i r From a public inter- even high-definition streaming video. Interne t 2 , est perspective, this is a the “next generation” fiber pipeline that eyeballs to broa d c a s t significant develop- al r eady connects 180 leading res e a r ch univer- ment. The Internet has sities, allows communication at 100 megabits net wo r ks and advert i s e rs . enabled the creation per second (mbps), roughly 100 times faster and maintenance of than today’s digital service lines (DSL) and Th e y can tak e cha r ge of new publics without the cable broadband connections. When Interne t 2 intermediation of mar- is extended to residential and small business their culture and kets. Throughout the users, individuals will be able to move beyond history of radio and tel- self-publishing to self-broadcasting, and become active crea t o r s evision, audiences were en t i r ely new realms of personal and civic aggregated in order to ex p r ession will be feasible, as long as the infra- and citizens. serve the needs of st ru c t u r e remains an open commons. advertisers. Communi- This section looks at some of the most cations flowed in one direction: one-to-many. notable Internet commons: user-m a n a g e d Now “audiences” both large and small—in ar chives and libraries, collaborative websites dispersed locations and in asynchronous and listservs, open source software communi- ways—can come together to share informa- ties and peer-to-peer file sharing. While diffe r - tion, develop ideas, solve problems and col- ing in important ways, these cyber-c o m m o n s laborate on new types of creative projects. sh a r e an important feature: they are interactive, The communications flow is many-to-many, no n - c o m m e cialr media platforms directly control l e d enabling entirely new kinds of mass coopera- by users.The public interest has never been so

8 Saving the Information Commons

richly served. Never before has the average cit- overlook the power of social norms such as izen had such powerful, direct capabilities for lo y a l t y , trust, teamwork and moral commitment. communicating with the public in his or her But as the Internet has shown, these norms , own voice. Never before have civic, cultural, as well as openness, collaboration and sharing, educational, local, amateur and other non- have been central to the Interne t ’ s trem e n d o u s co m m e r cial concerns had such rich, versatile gr owth. Non-market social exchange via the pl a t f o r ms for advancing their interests. In t e r net, it turns out, can be a highly effi c i e n t Si g n i f i c a n t l y , many of these forms of cre- and productive vehicle for generating certa i n ative output have almost nothing to do with types of valuable information, while building copyright law, patent law or the market, which new connections of civil society. Expres s i o n economists usually claim are necessary to that is amateur and non-commercial in origin induce people to create useful informa t i o n . is also likely to be more diverse, because, as “Why else would anyone create valuable works Pr ofessor Yochai Benkler has noted, such except for money?” economists argue.But the ex p r ession is “undisciplined by the need to In t e r net has shown that value-creation can ag g r egate tastes,” whereas that is the first pri- occur through a very diffe r ent, non-market ority of commercial information prod u c t i o n . 2 dynamic. In a “gift economy,” people free l y This heartening fact is verified by a rec e n t give something of value—information, crea t i v - study on the civic and social benefits of online it y , time—to an online community. Wit h o u t communities. The rep o r t, by the Pew Interne t any money changing hands or any guaranteed & American Life Project, found that “online payback, the online community nonetheless communities have become vi r tual third places ret u r ns valuable benefits to its parti c i p a t i n g for people because they are diffe r ent places members. This mode of exchange is rooted in fr om home and work. These places allow social, personal and moral norms, not in the people either to hang out with others or more impersonal monetary exchanges of the mar- actively engage with professional associations, ketplace. Online communities devoted to hobby groups, religious organizations or genealogical res e a r ch are a prime example; sp o r ts leagues.”3 The rep o r t found that 90 tens of thousands of Americans voluntarily million Americans have participated in online cr eate databases and freely share informa t i o n gr oups and 28 million have used the Interne t on a scale that cannot be replicated on a com- to deepen ties to their local communities. me r cial or prop r i e t a r y basis. The commons is Some 23 million Americans are “very active in actually a more efficient and productive alter- online communities,” according to the Pew native to the market. st u d y , meaning they email their principal Gift cultures are terribly disorienting, if not online group several times a week. th r eatening, to conventional economists It is revealing that the American people immersed in the narrative of rational, utility- enjoy the Internet primarily for facilitating maximizing individuals making “free” choices in no n - c o m m e r cial purposes—chat, arch i v e s , the marketplace. In the Internet commons, collaboration, email—rather than for making wh e r e the focus is on the community, market shopping easier. According to a major study th e o r y is a non sequitur.By focusing so exclu- sp o n s o r ed by the Markle Foundation: “By far, sively on individuals, market theory tends to the leading metaphor for the Internet, in the

9 The Rise of the Information Commons

pu b l i c ’ s mind, is not ‘a shopping mall’ or A Place of Our Own: Online ‘banking and investment office,’ but rather a Libraries and Archi ve s ‘l i b r a r y.’ Despite the popular depiction of the The Interne t ’ s design is perfectly suited to In t e r net as a channel for commerce, the public connecting vast numbers of people to rep o s i - mostly views it as a source of information, and tories of articles, books, photographs, charts these uses appear to explain its popularity and art in cheap and easy ways. Not surpris- much more than its utility as a way to shop, in g l y , the Internet is rapidly expanding the bank or invest.”4 scope of material that can be stored, search e d Un f o rt u n a t e l y , the Internet as library, and used by individuals. co m mons or virtual third place, has rec e i v e d Online libraries and archives are a public exceedingly little attention in the councils of in t e r est achievement of enormous significance. public policy and law. Congress and the courts As freely accessible, methodically orga n i z e d spend far more time trying to make the world st o r ehouses of knowledge, they are novel safe for electronic commerce than for pres e r v- cy b e r -versions of conventional public libraries, ing the Internet commons. When policymakers which have long been the bedrock of national do address the civic and cultural role of the li t e r a r y, education, science, culture and democ- In t e r net, they tend to adopt the categories of ra c y . Public libraries have been “a vital instru- another media age, such as universal access ment of democracy and opportunity in the and program subsidies. They don’t focus on United States,” as historian Arthur Schlesinger the structural factors that have enabled the has pointed out. “Our history has been grea t l y In t e r net to flourish as a commons, such as shaped by people who read their way to oppor- open Internet and software standards, and tunity and achievements in public libraries.” minimal copyright protection. As a res u l t , It is obviously impossible to give a thorou g h co m m e r cial interests have a freer hand to try pi c t u r e of the myriad of online libraries and to redesign the technical and legal arch i t e c t u r e ar chives. This section has the more modest of the Internet to facilitate selling. The goal of showing, through a few noteworth y br oader concerns of public interest constituen- examples, how these new media platforms are cies, meanwhile, receive scant attention.5 indispensable tools for a free society. They To understand why the commons is a useful allow citizens to acquire almost any informa - model for conceptualizing the public interest in tion they may desire. They foster learning and the digital age, it is important to know about innovation. They protect our cultural heritage. some of the specific innovations now occurri n g . And because they are freely accessible, they The following sections do not purport to be a rep r esent a fantastic contribution to the grand survey of the Internet, but they do con- public domain. stitute a compelling snapshot of why the Inter- The earliest online library was Pro j e c t net commons is so vital to our democratic cul- Gu t e n b e r g, a private initiative started in 1971 tu r e. This knowledge, in turn, helps clarify why to digitally republish out-of-copyright arti c l e s ce r tain policies and new initiatives (discussed in and books of general interest. The proj e c t , Pa r ts II, III and IV) deserve much grea t e r which has accumulated more than 3,700 pub- attention among policymakers, foundations, the lic domain books and made them available for pr ess and the public interest community itself. downloading, has now been incorporated into

10 Saving the Information Commons

a bigger, more ambitious online library called Other online library initiatives have taken a ib i b l i o . A generalist’s paradise, the ibiblio na r rower focus, serving particular academic website, run from the servers of the University disciplines or as repositories of specialist mate- of North Carolina at Chapel Hill, has the sim- rial. Perseus Digital Library, a project run ple goal of collecting and making accessible as by Tufts University near Boston, has carve d much interesting material as possible. out a niche as the leading online venue for The result is a res o u r ce of profound diver- classical Greek and Roman material. Perseus’s si t y , with content that runs from the main- small team of full-time staff works to catalog st r eam to the obscure. Available collections and develop new ways to electronically pres e n t include open source software documentation, a constantly growing collection of arch i t e c - the culture of the American South, Vie t - tural drawings and photographs, images of namese folk songs and botanical medicine. po t t e r y and sculpture, original documents, Each day ibiblio webservers respond to an papyri, articles, monographs and maps. Proj e c t average of 1.5 million information req u e s t s . st a f f draw upon advice from experts in classics The site welcomes new contributions of text, de p a r tments from universities in Boston and image, audio and video, and so the collection el s e w h e r e in the U.S. to orient their effo rt s . continues to grow . The site features a number of tools for those The library describes its operating philoso- new to the classics field, such as Greek and phy as “open source,” meaning it operates in a Latin vocabulary finders. tr a n s p a r ent manner with the help of volunteers. Some of the most useful electronic arch i v e s Many of ibiblio’s collections are managed by deal with vital civic issues. As its name sug- contributors from across the globe with special gests, Pr oject Vote Smart was established as knowledge or interest in the subject matter they a “one-stop” information res o u r ce for citizens ar e cataloging. The Hygiene Library, for exam- heading to the ballot box. The Web arch i v e ple, is maintained by a group from Tas m a n i a , of fers voters nonpartisan information on more Australia. This inclusive, volunteer-c e n t e re d than 30,000 candidates for public office in the ap p r oach to content-building means that some U.S. at the federal, state and local levels. collections are brief and clearly “works in Teams of volunteers and employees meticu- pro g r ess” that will need to gather more mate- lously update prodigious databases on voting rial over time. Though unconventional, this rec o r ds of incumbent legislators and candi- ap p r oach gives ibiblio the flexibility to collect dates’ platforms. It features campaign finance material in knowledge areas that are timely and data, interest group ratings of offi c e h o l d e r s rapidly growing. For example, the open source and ballot initiatives. The contents of this so f t w a r e documentation section of ibiblio is at ar chive change from week to week as elections pr esent one of the most actively updated on the ar e held and the cycles of politics and govern- site and is regularly cited as the world’s best ment turn. During the 2000 presidential elec- so u r ce for this category of material. ibiblio’s tion campaign, the site received an average of capacity for archiving burgeoning new genres 100,000 diffe r ent visitors daily. of literature or collections of music or images Pr oject Vote Smart’ s digital collection has on virtually any subject sets it apart from tradi- been leveraged so that it is accessible to voters tional libraries. not connected to the Internet. Citizens can

11 The Rise of the Information Commons

call a toll-free Vot e r ’ s Research Hotline to online res o u r ce yet developed for serious sci- reach volunteer-s t a f fed phone banks equipped entists. There are more than 170,000 papers with access to the Project Vote Smart data- in the archive and they are divided into sub- bases. In the weeks leading up to major elec- fields such as quantum physics, astrop h y s i c s tions, Project Vote Smart has teamed up with and nuclear theory. mo r e than 2,000 public libraries across the The archive is distinctive in the way it facili- co u n t r y to provide walk-up visitors with dedi- tates the process of drafting and sharing schol- cated Project Vote Smart information booths arly articles. Unlike other electronic libraries in their cities and towns. for academic material such as Perseus, the Education has been tremendously enhanced classics collection discussed prev i o u s l y , the Los by the availability of online libraries and Alamos site is struc t u r ed so that scholars can ar chives. One of the more interesting initia- post successive drafts of papers on which they tives in this reg a r d is the development of ar e working. A visitor to the site does not Op e n C o u r s e Wa r e (OCW), which makes the encounter a permanent, fixed collection of course materials used in virtually all of the material, but rather an evolving array of arti c l e s Massachusetts Institute of Tec h n o l o g y ’ s classes that change as their authors incorporate online available on the Internet, without charge, to comments from other scholars. The arch i v e users anywhere in the world. Lecture notes, of fers an early, insiders’ view on the newest, course outlines, reading lists and assignments cutting-edge res e a r ch in the discipline, even ar e archived. though many of the online articles are eventu- Su p p o r ters of the OCW project have ally published in peer-r eviewed print journals. emphasized its potential for encouraging long- The caliber of participating scientists is distance learning and teacher-to-teacher ex t r emely high and for many scholars, check- collaboration on course planning. A good ing the site for new postings is a daily rou t i n e . example is a small website archiving proj e c t The Los Alamos e-Print Archive has two mil- for K-12 lesson plans known as the Co l l a b o - lion weekly visits, two-thirds of them coming rative Lesson Archive. The website, at the fr om outside the United States. Research e r s University of Illinois, now boasts 10,000 visits fr om more than 100 countries submit arti c l e s a week from educators who use its discussion to the archive. The proj e c t ’ s $300,000 annual bo a r ds to post lesson plans and exchange com- budget comes from the National Science ments and res o u r ces. Such evidence suggests Foundation, the Department of Energy , that even a small electronic library can attract Co r nell University and the Los Alamos a very active constituency, and cros s - f e rt i l i z e National Laboratory. innovation and community vitality. Co r nell particle theorist Dr. Paul Ginsparg Pe r haps the most prominent and influential founded the project ten years ago when he was of the electronic archives developed to date is based at Los Alamos. In recent years, he has the Los Alamos e-Print Arch i v e . Primarily a begun accepting paper submissions in two new res o u r ce for physics res e a r chers, the site has fields: mathematics and computer science. revolutionized physics res e a r ch by serving as The Los Alamos e-Print Archive seems to an open and respected global res o u r ce. The have attracted so many world-class res e a rc h e r s ar chive is frequently cited as the most effe c t i v e because it overcomes two of the biggest com-

12 Saving the Information Commons

plaints about academic journals: expensive st r engthen and extend copyright protection of subscriptions and publication delays. Some in f o r mation, but the public interest is often jo u r nals cost thousands of dollars a year, a par- better served by establishing freely accessible ticular burden for res e a r chers in poor coun- and comprehensive electronic archives of tries; the time delay from article submission to in f o r mation as expensive prop r i e t a r y middle- publication can run six months or more. The men are frequently gratuitous in a networked Los Alamos archive, by contrast, offers imme- en v i r onment. The groundswell of support for diate scholarly attention for very little cost. the Public Library of Science proposal suggests Re s e a r chers in other disciplines seeking to that in the future, as other academic disciplines emulate the success of Dr. Ginsparg’ s physics and knowledge genres confront the issue of ar chive have run into copyright obstacles. The digital archiving, conflicts between commerci a l fo r- p r ofit publishers of academic journals do and public interests are likely to intensify. not want to make journal articles cheaply Var mus and his fellow petitioners have available to all. This provoked some 26,000 sparked thoughtful but heated debates in the biomedical res e a r chers, led by Nobel prize- popular science publications Na t u r e and Sc i e n c e winning res e a r cher Harold E. Var mus, to sign about the role of journal publishers in science a petition calling for the creation of a Pu b l i c and the most appropriate way to electron i c a l l y Li b r a r y of Science. This electronic arch i v e ar chive biomedical literature. Some letters to would act as a free central rep o s i t o r y for all the editor have questioned whether six months biomedical journal articles, which would be is a long enough period of copyright prot e c t i o n posted only six months after their original for journal publishers to recoup their costs. publication in print journals. All signatories to Others have expressed alarm at the idea of a the petition have agreed not to write, rev i e w go v e r nment-operated archive being the exclu- or edit for publishers that have not committed sive source for biomedical articles (the Public to the Public Library of Science. Li b r a r y of Science would be hosted at PubMed The Public Library of Science claims that Central, an online initiative of the U.S. Gov- jo u r nal publishers have been unrea s o n a b l y ern m e n t ’ s National Library of Medicine). in c r easing subscription prices and limiting the In any case, the idea of scientists and schol- distribution of articles in a manner that ars taking charge of their own intellectual impedes the development of science. Accord- pro p e rt y , bypassing the copyright and market ing to the Washington-based Association of co n t r ol of publishers, seems to be catching. In Re s e a r ch Libraries, the average cost of an Fe b ru a r y 2002, the Budapest Open Access annual subscription to an academic journa l In i t i a t i v e , sponsored by the Open Society rose by 207 percent between 1986 and 1999. Institute, released a manifesto calling for the Annual revenues in the scientific journal pub- se l f - a r chiving of peer-r eviewed journal litera- lishing industry are estimated to be $10 bil- tu r e and the creation of a new generation of lion, so the stakes for the companies con- open access alternative journals. The proj e c t ce r ned are substantial. hopes to provide leadership, appropriate The Public Library of Science prop o s a l so f t w a r e and technical standards, and fund th r ows into stark relief an increasingly com- su p p o r t to foster new sorts of commons in mon conflict. Businesses tend to want to scholarly literature.

13 The Rise of the Information Commons

Fi n a l l y , any review of the Interne t ’ s many The Internet Commons thousands of archives must mention the In t e r - as Online Collaboration net Arch i v e , a project launched by digital Amazon, Priceline, Travelocity and dozens of librarian Brewster Kahle to amass an online other ecommerce sites may garner most of the ar chive of the entire Internet. The point of the attention, but look behind the marketing eff o r t is to have a complete, detailed, accessible façade and you will find a flourishing new sec- and searchable rec o r d of our cultural arti f a c t s , tor of public interest media: collaborative web- which increasingly reside online and are dis- sites and listservs. They are devoted to count- tr essingly ephemeral. Without a common less non-commercial endeavors, they are ar chive of the Web, important swaths of our accessible to anyone and they are free . hi s t o r y are likely to be lost forev e r . While these Internet venues do not have the In October 2001, the Internet Arch i v e power and visibility of commercial television or launched the Wayback Machine, a Web serv- major corporations, they have something those ice that allows people to browse webpages entities do not enjoy—enormous “viral power” fr om the past. Users can prowl over ten billion and grassroots moral authority. To be sure, webpages archived from 1996 to the pres e n t . th e r e are amateurs and crackpots on the Inter- The service, the first of its kind, uses a data- net. Yet there are also scores upon scores of base containing more than 100 terabytes of sites that command great respect and influ- in f o r mation, the largest database in the world. ence. Indeed, within their particular sphere of The owners of some websites have blocked ex p e r tise, some are seen as more rel i a b l e , the Internet Archive from including their sites; timely and authoritative than the mainstrea m other sites have deleted graphics and links. But pr ess. Upon reflection, this should not be sur- even with such holes in the rec o r d, the arch i v e prising. After all, these sites “belong” to the is exceedingly compreh e n s i v e . on - t h e - g r ound experts and communities whom The Internet Archive explains that its data- jo u r nalists are otherwise likely to quote. The base helps pres e r ve the citizen’s “right to In t e r net simply bypasses such interme d i a r i e s know” what our government is doing in our and gives us direct, unfiltered access. name. Online government rec o r ds are often The breadth of this important media sector “taken down,” such as when political control was recently documented in “Th e Do t - C o m - over state or federal executive agencies changes mons: A Vir tual Tour of the Online Civic after an election. Some official rec o r ds may not Se c t o r ,” a survey of more than 100 websites even exist in paper form. The Internet Arch i v e devoted to public interest programming in a also gives us the “right to remember” so that variety of fields. Released by the Center for we need not depend on irregular or unrel i a b l e Digital Democracy, the collection of sites so u r ces for an accurate rec o r d of history, poli- includes voter education websites, community tics and culture. Scholars—or anyone—can networks, discussion forums and distance trace how our language changes, see how the le a r ning services. The sites are “not simply an Web has evolved over time and investigate ag g r egation of meritorious URLs,” said Gary countless other historical questions. O. Larson, director of the Dot-Commons Pr oject, but evidence of a distinctive online civic sector.

14 Saving the Information Commons

Another useful point of access to the dot- market transactions. For precisely this rea s o n , commons is De m o c r a c y G ro u p s these venues req u i r e special sorts of support if (w w w. d e m o c r a c y g ro u p s . o r g), an online direc - they are to flourish; in parti c u l a r , an open Inter- to r y of U.S.-based electronic mail discussions net arch i t e c t u r e and strict limits on intellectual and enewsletters related to social change and pro p e r ty controls. democratic participation. Using open source The idea of the so f t w a r e and a network of volunteers, Democ- Di st ri b u t ed Computing & ra c y G r oups facilitates the self-organization of the Dot-Commons do t-commons—a rob u s t civic communities. It is not simply a portal to In essence, the dot- help gain access to specific groups, but a commons is a prod u c t online civic sector—is “movement-driven” location in cyberspace to of distributed comput- foster civic networking. The site currently has ing, in which many imp o r tant if democratic 40 volunteer-editors, and 408 listservs and computers are interco n - email newsletters categorized by issue, con- nected via electron i c norms are going to have stituency and geographic location. networks (especially the “The civic sector content that we take for In t e r net) to generate meaningful embodiment granted today—the scattered, noble experi- mo r e efficient res u l t s ments in public interest programming that than could otherwise be in the digital age. It is happen to catch our eye—is not guaranteed to obtained. Distributed be so readily available in the broa d b a n d computing takes a large wh e r e all sorts of new fu t u r e,” writes Larson. “Nor is it too early to pr oblem and breaks it begin planning for that future now, ensuring down into many small, civic learning, crea t i v e our opportunity to reach non-commercial sites modular problems that th r ough open access regulations, demanding can be solved by thou- ex p r ession, dialogue public interest obligations of commercial pro- sands of individuals grammers…and in general building a public and/or their personal and collaboration occur. commitment to the ‘dot-commons’ concept.” computers. This The idea of the dot-commons—a rob u s t ap p r oach is highly effective for problems that online civic sector—is important if democratic ar e too large for any single individual or insti- no r ms are going to have meaningful embodi- tution to solve in a reasonable period of time. ment in the digital age. It is where all sorts of Distributed computing is now being used in new civic learning, creative expression, dia- dozens of fields to facilitate cooperation logue and collaboration occur. among machines and individuals. Proj e c t s We cannot begin to sketch, here, the full include the search for extraterrestrial radio scope of this explosion of knowledge and signals that might be evidence of alien civiliza- cre a t i v i t y . Instead we mention a few highly sug- tions; calculations to find prime numbers with gestive examples. Our point is to call attention mo r e than a million digits; and the search for to the exciting new civic, creative and scientific better drugs to fight HIV/AIDS. An excellent functions of these new Internet commons. review of Internet-based distributed comput- They typically flourish through open, collabo- ing projects can be found at www.a s p e n l e a f . rative interactions, not through one-on-one co m / d i s t r i b u t e d .

15 The Rise of the Information Commons

One of the most ambitious online collabora- goes on the front page the next morning are tions is the Open Direc t o r y Proj e c t (O D P ) , made by a small group of editors; at Slashdot, the largest, most comprehensive, highest-qual- a massive peer-r eview process involving tens ity human-edited direc t o r y of the Web (www. of thousands of users determines what sorts of dm o z . o r g). With tens of thousands of volun- tech news commentary are relevant, cred i b l e teer editors from around the world, the proj e c t and insightful. is a constantly evolving community that is He re ’ s how the process works: An auto- always adding new information, cleaning up mated system recognizes certain users as bad weblinks and adding new topics to the “moderators,” based on their length of affi l i a - di re c t o r y. The ODP is not a search engine, but tion with the site, evaluation ratings (“karma ” ) an extensive, well-edited list and categorization given to them by other volunteer moderators, of websites. and other credibility factors. Users whose What is notable about the ODP is that, postings consistently receive high ratings from even though it is hosted and administered by moderators increase their “karma” ratings, Netscape, which pays for server space and a eventually empowering them to become mod- handful of employees, a huge army of volun- erators and influential tastemakers in the teers contribute substantial work for free, as a Slashdot community. Users who are deemed kind of civic pleasure and knowledge philan- by moderators to have poor judgment are th ro p y . For its part, Netscape’s commerci a l given low karma ratings. “Troll filters” prev e n t se a r ch engine and portal presumably benefit users from gaming the system with rep e a t fr om the direc t o ry ’ s work and its association comments or other sabotage. with such a well-reg a r ded project. The ODP The system is deliberately struc t u r ed to rep r esents a dynamic sometimes known as the limit the power of any single moderator, pro- “c o r nucopia of the commons,” in which an ducing instead a reliable ag g re g a t e judgment of online collaboration yields so much surplus the community. Slashdot, writes Prof e s s o r value that it is a rich res o u r ce, not just for the Yochai Benkler, is “very self-consciously pa r ticipating community or commons, but for or ganized as a means of facilitating peer pro- many commercial enterprises as well (in this duction of accreditation…[Its content is] a case, commercial search engines). cr oss between academic peer review of journa l The “cornucopia of the commons” dynamic submissions and a peer-p r oduced substitute is also the hallmark of Sl a s h d o t (w w w . for television’s ‘talking heads.’”6 What is sig- sl a s h d o t . o rg ) , the website that bills itself as nificant about Slashdot is the efficiency and “News for Nerds.” Slashdot may be the pre- cr edibility with which a community can pass eminent news and commentary website for judgment on news items that enter into its computer hackers, technophiles and open field of vision. so u r ce software aficionados. When a news- Consider a similar application of this princi- wo r thy event happens in this subculture, ple as embodied in the Gre a t Ba c k y a r d Bird Slashdot hosts a sophisticated vox populico m - Count (b i rd s o u rc e . c o rn e l l . e d u / g b b c / me n t a r y process that passes judgment on the to c _ p a g e . h t m l ) . This once-a-year nationwide significance of the event (or book or essay). At bi r d survey is run by BirdS o u r ce, a nonprof i t The New York Times,judgments about what gr oup based at Cornell University. Since 1998,

16 Saving the Information Commons

the group has solicited bird counts from vol- to realize is that humans rep r esent the interna l unteers across the country over the course of co n t r ol mechanism the earth has long sought. four days in Februa r y. The volunteers then Th e y ’ r e bringing feedback into the system, post their results at the grou p ’ s website, which changing the management of the system.”7 ar e then combined with other bird tracking Since birdwatching is the fastest growing out- websites that use Doppler radar technology door activity in the nation—more than 71 mil- and teams of specialist volunteers who rec o r d lion Americans rep o r t that they watch birds , the migrations of specific species. In 2001, ac c o r ding to the National Survey on Recre- mo r e than 50,000 rep o r ts were submitted to ation and the Environ m e n t — o r ganizers of the Bi rd S o u r ce, documenting 4.5 million birds Gr eat Backyard Bird Count expect that their fr om 442 species. gr a s s r oots database will only grow in size and Mo r e than a novelty, the Bird Count is reliability in the future. beginning to serve as a valuable new indicator It is blindingly obvious that the Interne t of environmental stress. It is believed that commons has many, many faces. If bird- fluctuations in bird species numbers over a tracking sites can aggregate thousands of bits wide range of areas over time are indicators of of trivial knowledge to allow the creation of ma c r o-level shifts in weather, air quality, snow new types of knowledge and meaning, thou- melt and other environmental factors that are sands of other Internet commons are prod u c - ot h e r wise difficult to monitor. In isolation, ing entirely new sorts of platforms for crea t i v - each individual bird tracking rep o r t submitted ity and collaboration. to the Bird Count is not especially significant. But aggregated via the BirdS o u r ce website, ❚ Distributed Proo f re a d i n g is a website the rep o r ts provide an important new perspec- (p r omo.net/pg) that allows volunteers to tive on the state of the natural world. pro o f r ead an etext by comparing it to the The leaders of the project rep o r t that their scanned images of the original book. Thou- data are increasingly being used to justify sands of pages of text are proofed every stricter environmental protection policies and month through this process, which is the creation of natural refuges for birds. For ad m i n i s t e r ed by one person. example, organizations such as Interna t i o n a l ❚ The Great Internet Mersenne Prime Paper Company, the largest private landowner Se a rc h enlisted the help of 130,000 volun- in the United States, and the Department of teer participants and more than 210,000 Defense, have recently altered land manage- personal computers to discover the large s t ment practices in order to accommodate known prime number, expressed as 2 to the en d a n g e r ed bird species in South Carolina and 13,466,917th power minus 1. The Hawaii. Mersenne prime, which contains 4,053,946 “I think we’re seeing history in the making,” digits, was found through a distributed com- John W. Fitzpatrick, director of the Labora- puting technology that allows the res e a rc h to r y of Ornithology at Cornell, told Th e pr oject to use the spare CPU (computer Washington Post, “People are now noticing pr ocessing unit) cycles on the personal com- change, searching for bio-indicators and then puters of its vast global network of volun- fixing the problem. What we’re just beginning teers (www.m e r s e n n e . o r g/prime.htm). More

17 The Rise of the Information Commons

than a curiosity, Mersenne primes, as they author Douglas Rushkoff, who invited Interne t ar e called, are significant in number theory users to contribute to Exit Strategy, a novel set and have practical value in software encryp - in the 23rd century where a book about early tion and computational benchmarking. 21st century Internet culture is discovered hid- ❚ NASA Clickworkers (c l i c k w o r k e r s . a rc . den online (www.yil.com/exitstrategy). The nasa.gov/top), an experimental website, ma n u s c r i p t ’ s footnotes explain concepts like invites Internet users to identify and classify “v e n t u r e capital” and “self-help” to 23rd cen- craters on Mars based on satellite images of tu r y readers. On his website, Rushkoff the planet surface. This work, normally con- requested lengthy contributions to these foot- ducted by graduate students or scientists notes from all interested parties and rec e i v e d over the course of months, is now done for thousands of pages of ideas. Readers’ contribu- fr ee, by thousands of Internet volunteers. tions will not only inform his text, they will be One part-time software engineer oversees pr esented alongside Rushkoff’s work as annota- their work. In its first six months, 85,000 tions that elaborate, modify or challenge the people visited the website, with a significant claims in his prose. He sees the experiment as a number of them contributing more than 1.9 way of assembling a collective commentary on million entries to the crater identification co n t e m p o r a r y times. “These footnotes are a pr oject. The work quality “is virtually indis- way for us to conceptualize a future that has tinguishable from the inputs of a geologist moved beyond our current obsessions,” writes with years of experience in identifying Mars Ru s h k o f f. “Instead of describing that future craters,” according to one analysis.8 ex p l i c i t l y , though, we will suggest what it will ❚ Theme Park Insider (t h e m e p a r k i n s i d e r. c o m ) be like by showing what facts and ideas future has won an Online Journalism Awa r d for its readers won’t understand.” He plans to incor- pioneering work in tracking theme park porate many of the contributions into the final accidents nationwide. There is no govern- ha r dcover print edition of the text. ment agency or public body that collects A similar experiment in collaborative cre- this information. In the classic manner of an ativity has occurred in playwriting. The Soho online commons, Theme Park Insider Th e a t r e + Writers’ Centre in London hosted ag g r egates accident data from its 3,000 reg - an online project in creating a script for Lo n d o n is t e r ed users, creating a public body of Van i s h e s , a one-act play that was perfo r med in knowledge that would not otherwise exist. November 2001. More than 200 theatergo e r s made contributions to the script and more than New Types of Collaborat i v e Crea t i v i t y 1,200 people voted on plot twists (input that The benefits of mass participation online are was refracted through playwright Sara Cliffo rd ) . also starting to show up in collaborative cre- Said the Soho literary manager Paul Siret t : ative work. While some experiments may turn “The input ranges from astute to bizarre; from out to be flash-in-the-pan novelties, others imaginative to didactic. There are plenty of point the way to new types of joint crea t i v i t y writers who could learn a thing or two from the and public expression. th e a t e r goers who shaped this play.” One example is an open source novel in s t i - Musicians are also seeking to extend the gated by New York-based columnist and relationships between themselves and their

18 Saving the Information Commons

audiences by inviting fans to use the Interne t found that the film was “improved in pace to remix their songs. Remixing can involve and struc t u r e,” and itself rep r esents “another altering the speed and tone of songs, incorpo- way in which the proliferation of digital tech- rating new sound elements and generally nology could change the movie industry for im p r ovising on top of the basic melody of the better.” songs. The rap group Public Enemy has While copyright solicited contributions of remixes at their web- industries argue that the Wh e ther new sorts of site by running a competition; the winning kinds of collaborative submission will be included on the grou p ’ s cr eativity described here cre a t i v e gen r es will be next album (www.s l a m j a m z . c o m / s l a m n e w s . ar e illegal, pure and sim- ph p ? a r ticle=7). Other high-profile musicians, ple, many artists persua- al l o wed to emerge and including the Icelandic singer Björk, unoffi - sively argue that the cially endorse websites that archive remixes of reuse, excerpting and de velop—or whethe r their songs. In each case, the result is a whole modification of existing new raft of publicly available musical content cr eative works are essen- thre a t ened copyr i g h t that has been produced via Interne t - m e d i a t e d tial to creativity itself. By collaboration between fans and prof e s s i o n a l the standards of the in te r ests will suffoc a t e musicians. rec o r ding or film indus- Pe r haps the most remarkable example of tries, much of Shake- them in the cradle—is a collaborative creativity is a bootleg editing of sp e a re ’ s work would be Ge o r ge Lucas’s Star Wars film, The Phantom co n s i d e r ed unautho- great unres o l ved issue Me n a c e . Disappointed by the film as rel e a s e d , rized, derivative work. the “Phantom Editor” (as the fan/editor called Whether new sorts of of our time. herself) skillfully cut 20 minutes from the cr eative genres will be original 133-minute film, producing a tighter, allowed to emerge and develop—or whether mo r e enjoyable film. The bootleg version th r eatened copyright interests will suffo c a t e begins with the famous yellow-lettered scrol l them in the cradle—is a great unresolved issue set against a starry backdrop: “Being someone of our time. of the ‘George Lucas Generation’ I have re- edited a standard VHS version of ‘The Phan- The Open Source Softwa r e Revol u t i o n tom Menace’ into what I believe is a much So f t w a r e development has been one of the st r onger film by relieving the viewer of as most fertile fields for mass online collabora- much story red u n d a n c y , Anakin action and tions. In what has become known as open dialog and Jar Jar Binks [an annoying charac- so u r ce programming, teams of volunteer pro- ter lambasted by critics] as possible.” grammers from around the globe cooperate The fan-edited version of the Ph a n t o m online to create new software programs and Me n a c e became a hugely popular under- im p r ove existing ones. These loosely orga n - gr ound hit, inspiring another fan to open up a ized, non-hierarchical communities welcome website to discuss and analyze the film (which contributions from anyone with the skills and had received more than 139,000 hits within a enthusiasm to devote. This has proven to be a few weeks). Salon.com, the online magazine, key strength. It turns out that mobilizing a

19 The Rise of the Information Commons

la r ge and diverse corps of participants to teams of experts who do their work behind develop and review a software program, as it is closed doors, in a planned, orderly environ - being created, is a highly effective way to ment. While we normally associate high-quality im p r ove it. scientific res e a r ch and technology design with Over the past five years, the open source , the “cathedral” style of development, the sur- ma s s - p a r ticipation approach has developed a prising success of open source software devel- reputation for producing remarkably good opment has led many companies to see the dis- so f t w a r e, in many cases superior to the tradi- tinct advantages of “bazaar”-style innovation. tionally made software of prop r i e t a r y rivals. Ap a r t from its high-quality results, open The GNU/Linux operating system, fo r so u r ce software is widely seen as more con- ex a m p l e — p e r haps the most celebrated open su m e r -friendly than most off-the-shelf prop r i - so u r ce project in existence—is considered by et a r y software. This is chiefly because of the many to be a superior alternative to openness of the software’ s “source code,” Mi c ro s o f t ’ s NT server software. Without any which means that users have the freedom to corporate infrastruc t u r e or ownership, use and distribute the software in whatever GNU/Linux has captured more than 27 per- ways they desire. Anyone with the experti s e cent of the server marketplace. can “look under the hood” of the software and Linux is but one of hundreds of open source make changes, eliminate bugs and add cus- communities whose programs are in constant tomized improvements. use by individuals and organizations across the Open source software also has an obvious globe. Many open source programs are critical price advantage: it is usually free (unless pack- operating components of the Internet. Send- aged with service and support for modest mail routes comprise more than 80 percent of prices). By contrast, prop r i e t a r y software mak- all email on the Internet; PERL allows ers often coerce users into buying “bloatware” dynamic features on websites; Apache is the (overblown, inefficient packages with unneces- most popular webserver software; and BIND sa r y features) and gratuitous upgrades made is the de factoDNS (domain name system) ne c e s s a r y by planned obsolescence. While se r ver for the Internet. While computer pro- monopoly vendors like Microsoft can charge fessionals are the most common users of these higher prices for its products, open source pr ograms, millions of ordi n a r y folks download so f t w a r e allows users to avoid seller-c o n t r i v e d fr ee software from websites. traps and overch a r ges. Open source is also The online collaborative process is central to co n s i d e r ed far more secure than prop r i e t a r y the success of open source software. One of the so f t w a r e because many more eyes have scrut i - most thoughtful commentators on the move- nized its vulnerabilities in a far more intense ment, Eric S. Raymond, calls the open source way than can be achieved through “cathedral”- cr eative process the “bazaar” because it is a plu- style prog r a m m i n g . ralistic, open and inclusive process that occurs At a higher, philosophical level, open source in a messy, ad hoc style. By contrast, the cus- so f t w a r e is considered more compatible with to m a r y approach to software development the democratic values of an open society. Both among commercial vendors, says Raymond, is open source communities and democracies “cathedral” style. This entails the use of select honor “transparent” decision-making, in

20 Saving the Information Commons

which everyone can scrutinize all proc e d u re s of P2P because anyone seeking access to a file and outcomes. Openness is the best way to on someone else’s computer first had to go identify and correct errors, and to embrace th r ough a central server containing an index and incorporate innovation in rapid ways. Any of music files and their locations on individual innovations, furth e rm o r e, can be used within PCs. Since Napster was shut down by a court the commons to benefit everyone. They are or der responding to the rec o r ding industry’ s not siphoned away as profit for company litigation, a variety of alternative forms of sh a r eholders alone. Openness helps root out pe e r -to-peer networking software have the kinds of abuses that often occur in closed, em e r ged. This new generation of prog r a m s — pro p r i e t a r y environments; in this sense, open Gnutella, MusicCity, Audiogalaxy, Fast so u r ce communities have a strong system of Tra c k and Ai m s t e r , among dozens of oth- accountability built into their system. ers—does away with Napster’s central index- Open source software plays several importa n t ing server and allows users to directly access roles in the public interest agenda, as we will see music files on other people’s computers. la t e r . As a form of technical standards, open The great advantage of peer-to-peer arch i - so u r ce software helps pres e r ve the open Interne t te c t u r e is that it allows dispersed members of in f r a s t ru c t u r e (Part II). It helps maintain an an online group to quickly and direc t l y open commons of information in the public exchange data without relying on a central knowledge that fuels education, science, govern- se rv e r . Far-flung participants from diffe re n t ment and culture (Part III). And it helps assure institutions can thus be immersed in the same fr ee public access to software applications and vi r tual working environment and collaborate content that might otherwise be withheld as much more effectively than they can in the private and prop r i e t a r y (Part III, section F). mo r e traditional networking struc t u r e of cen- tralized computer servers and clients. The Pee r- to - P eer Revol u t i o n It bears emphasizing that peer-to-peer file Another important form of online collaboration sharing is not just a new strategy for trading is a class of computer arch i t e c t u r e called “peer- music files in the post-Napster computing to - p e e r .” The rise of Napster, the controv e r s i a l en v i r onment. P2P has many serious scientific and hugely popular music file-swapping servi c e , and business applications. Its advantages are heralded the potential of peer-to-peer net- the speed, security and reliability of linking wo r k ing (P2P). Although Napster may be best computers together from diverse locations. As known for giving millions of users access to one New York Tim e s account put it: music without paying copyright holders, it has also attracted great excitement from prog r a m - Employees can gather for online meetings mers, businesses and others because of its dis- or for short- t e r m projects reg a r dless of tinctive arch i t e c t u r e and functionality. It crea t e s their locations, while bypassing a bottle- new ways for people to collaborate online. neck of corporate file servers. Free l a n c e Napster software enabled dispersed users to workers and contractors can join a grou p establish separate mini-networks with each online without compromising a company’s other for the purpose of exchanging digital se c u r i t y . In business-to-business com- music files. But Napster was not a pure form me r ce, companies can use peer-t o - p e e r

21 The Rise of the Information Commons

computing to order from suppliers and DNA and protein sequences, and the E- se r ve customers. And Napster-like file CELL Simulation Environment, a software sharing allows quick downloads of soft- package for cellular and biochemical modeling wa r e and essential documents.9 and simulation. Another initiative seeking to harness the Al r eady dozens of major corporations are power of P2P is the Ma r tus Proj e c t . Based in actively exploring how P2P can accelerate the Ca l i f o r nia, this nonprofit initiative is develop- locating and sharing of documents, facilitate ing software that will allow human rights online collaboration within work teams and activists across the globe to cheaply and bring together computer data networks that anonymously rep o r t kidnapping, tortu r e and ar e incompatible. These experiments are other abuses in their regions. Too often, being conducted by the likes of drug compa- pr ompt and accurate documentation of such nies such as GlaxoSmithKline, law firms such human rights abuses has been stymied by the as Baker & McKenzie and the accounting lack of standardized rep o r ting criteria. In addi- fi r m Ernst & Young. Marketing consultants tion, the possession of files (vulnerable to loss Fr ost & Sullivan believe that enterprise use of or destruction) can jeopardize the safety of P2P will grow 100-fold over the next six human rights workers. years. The first major conference on P2P, The Martus Project software aims to trans- hosted by open source software champion fo r m the dispersed and irregular fraternity of Tim O’Reilly in Februa r y 2001, drew a large gr a s s r oots human rights organizations into a and enthusiastic crow d . reliable, globally integrated monitoring One of the more advanced public initiatives res o u r ce. By establishing a secure, prompt and in applying peer-to-peer computer arch i t e c - durable rep o r ting mechanism, it is hoped that tu r e is The Open Lab at University of the Martus Proj e c t ’ s encrypted electronic files Massachusetts, Lowell. This project is dedi- will become a means of tracking flare-ups of cated to providing decentralized networking violence and abuse in any given location of the tools to res e a r chers so they can work together world. It will also provide hard statistical evi- in solving information problems in the life sci- dence for res e a r chers and the media, and bol- ences, a new field known as “bioinformatics.” ster such groups as Human Rights Watch and The Open Lab’s website acts as an entry Amnesty International in their effo rt s . point for interested res e a r chers, who can then Pe e r -to-peer technology is also playing a join separate peer-to-peer networks in the spe- central role in empowering Internet users to cific area in which they want to collaborate. self-publish on the web. P2P is driving the New members acquire the relevant data bu r geoning weblog or “blog” ph e n o m e n o n ar chives and software tools in development instigated by a series of websites offering free , fr om existing members of the peer-t o - p e e r ea s y , push-button publishing tools. Blogs are a network. Open Lab is currently sponsoring new genre of Web publishing that features some 39 separate projects involving more than idiosyncratic collections of easily updated per- 1,000 scientists. Two examples include: the sonal news, commentary, favorite weblinks and Sequence Manipulation Suite, an effo r t to photos. Many blogs are densely packed with develop software for analyzing and forma t t i n g annotated links to other parts of the Web and

22 Saving the Information Commons

other blogs. One blog portal, www. ideas, quirks, treatises and quotidian ref l e c t i o n s li v e j o u r nal.com, claims to have 140,000 to a widely accessible public stage. Weblogs are “bloggers” who update their pages at least also significant in how they help individuals once a month. Some blogs have few visitors, ov e r come the growing technical and financial others have thousands; word of mouth rules. ba r riers to publishing on the Web. The sim- Weblogs are significant in how they harne s s plicity and openness of the weblog form helps P2P to overcome the complexity and cost of people remain active users of the Interne t uploading material to the Web. In the proc e s s commons and invigorate the Web as a gen- they help thousands of people bring their uinely parti c i p a t o r y two-way mass media.

23 II. Save the Internet Commons: Require an Open, Accessible Infrastructure

he many remarkable online commons described in Part I owe countless direct and indirect debts to the open architecture of the Internet. With- T out certain structural features—open technical protocols for Internet data transmissions, open software standards for interconnections, competition from diverse Internet service providers and content sources, the limited application of copyright—the Internet commons could not have emerged, let alone become the most vibrant communications medium in history. This fact needs to be roundly emphasized because so much flows from it. If the past trajectory of Internet innovation and cultural freedom is to continue into the future, we must understand that the cyber-commons is not a natural and per- manent state of affairs. It was deliberately created and it needs to be vigilantly pr otected. Indeed, unless the open character of the Internet is consciously safe- gu a r ded as a matter of public policy (which indeed, was also critical to its early gr owth), it will almost certainly become balkanized and more prop r i e t a r y. St a n f o r d Professor Lawrence Lessig has explored this theme in his two influen- tial books, Code and Other Laws of Cyberspaceand The Future of Ideas. In Co d e , Lessig argues that the design of software code is itself a kind of politics and law. It regulates what sorts of freedoms computer users may have and controls individu- als’ behavior in ways that the law cannot. Software design can enable private com- panies to assert powers traditionally exercised by government, for example, in defining the prevailing norms of privacy, free speech and commercial transactions. In The Future of Ideas, Lessig sounds a dire warning about the future of the In t e r net commons. He explains how the explosion of innovation spurred by the

25 Save the Internet Commons

In t e r net stems from its open, neutral arch i t e c - and operate as a public good or commons, tu r e. Because the Internet is a commons—a accessible to all. However, extraordinary fr ee space in which ideas, information and cul- profits flow to any company that can estab- tu r e can flow freely—it has spurred unprec e - lish its proprietary standard as the universal dented crea t i v i t y . But gradually a new “arch i - standard. That is because a privately owned te c t u r e of control” based on prop r i e t a r y soft- standard functions as a kind of monopoly wa r e standards, law and market power, is power in the marketplace. The history of em e r ging. Rather than allow an open-ended technology is replete with battles over stan- fr eedom and self-determination among Inter- dards: in electricity, Edison vs. Westinghouse; in net users, this new arch i t e c t u r e seeks to VCRs, Sony vs. Matsushita; in color TV, CBS empower private corporations and the govern- vs. NBC.10 ment to regulate what may be read, bought So far, no company has been able to estab- and communicated on the Internet, and under lish prop r i e t a r y technical standards for the what terms (sale, rental or for free). In t e r net. Originally an initiative of the U.S. What must we do to secure the integrity of mi l i t a r y, the Internet was designed by technol- the Internet commons? Part II argues that an ogists in academia and government whose pri- open infrastruc t u r e is a critical req u i re m e n t . ma r y interest was to create a cheap, effi c i e n t , We focus on three areas of special impor- tr a n s p a r ent and decentralized means of tance: the future of open standards, the ability exchanging information. Contributors with of consumers to enjoy open and nondiscrimi- no n - c o m m e r cial motivations cooperatively na t o r y access to the Internet and the dangers cr eated the protocols and software tools that that media concentration holds for the enable the free flow of communication via the public interes t . In t e r net. Any user can attach any computing device to the local telephone network and use The Future of Open Standards it as a common carrier to access the Interne t When significant new technological brea k - either directly or, more typically, throu g h th r oughs occur, they are very often followed competing intermediaries. by a struggle between businesses competing to To date, no profit-seeking corporation has en s u r e that th e i r pro p r i e t a r y version of the been allowed to seize control of critical Inter- technology becomes the universal standard. net protocols; they have functioned as a com- Technical standards and protocols provide the mo n res o u r ce, accessible to and modifiable by compatibility necessary to attract the critical all users. In addition, government reg u l a t o r s mass of users needed to sustain the growth of acted to ensure that technical standards in the a technology and a market. While standards copper wire telephone system did not vest may constitute an obscure technological back- power in the telephone carriers or computer wa t e r , they are potent forces in shaping mar- companies, the two major industry parti c i - ket struc t u r es, fostering (or thwarting) compe- pants in Internet standards disputes. Instead, tition and empowering (or disenfranchising) the designers of the Internet sought to crea t e citizens and consumers. an open, non-prop r i e t a r y arch i t e c t u r e that A standard or protocol need not be private would empower individual end users: a radical property; it can be cooperatively generated concept then and now.

26 Saving the Information Commons

Much of the Interne t ’ s enormous success But from the perspective of the public, stems from this innovation. By allowing the such strategies erode or destroy the Internet “intelligence” of the network to be placed at as a commons. Subtly and over the long term, the user level—in applications rather than in they enervate the infrastruc t u r e design that the network itself—the Internet has enabled has enabled so much innovation, competition, individual creativity to emerge and flourish in user freedom and cultural expression to un p r ecedented ways. Millions upon millions of flourish. Prop r i e t a r y standards threaten to decentralized users can interact in an open and un d e r mine the very features that we celebrate stable public space, which itself has the struc - as the proudest achievement of the medium. tural capacity to grow and accommodate inno- vations that were once unimagined, such as the The Internet Standards Setting Process World Wide Web, streaming audio and video Can the Interne t ’ s founding arch i t e c t u r e be and wireless appliances and applications. This pr otected? There is no simple answer to ar chitectural principle—known as “end-to- this question because establishing technical end”—has facilitated the Interne t ’ s vibrant cul- st a n d a r ds for the Internet is a multilayered , tu r e of innovation and bottom-up parti c i p a t i o n . un s t ru c t u r ed process. There are many The pool of open protocols—a commons— di ff e r ent participants and no single governi n g that has made the development of the Inter- au t h o r i t y . The non-commercial, bottom-up, net possible is not permanent or fixed, how- consensus-driven approach that built the core ev e r . It is entirely possible for the software pr otocols and standards of the Internet in its code to be rea r ranged and new, prop r i e t a r y early stages continues today, but its influence st a n d a r ds to be imposed. This, in fact, is a is diminishing. This work is pursued throu g h compelling ambition for many high-tech technical bodies such as the World Wide Web companies. Following the historical pattern Co n s o r tium (W3C) at The Massachusetts described above, a number of hardw a r e and Institute of Technology (M.I.T.) and the so f t w a r e companies are developing sophisti- In t e r net Engineering Task Force (IETF). cated new Internet services that seek to inte- These groups coordinate voluntary working grate prop r i e t a r y technical standards into the gr oups of technologists from academia, gov- ve r y arch i t e c t u r e of the Internet. If widely er nment and businesses, who spend a grea t adopted, the standards would generate huge, deal of time debating, refining and endorsing stable revenues for a company’s shareh o l d e r s consensus standards in specific areas. The while also imposing a kind of invisible tax on W3C and IETF are open to all interes t e d all users of the Interne t . pa r ticipants and work in an informal, deliber- Fr om a commercial perspective, the “end- ative manner that favors technical effi c i e n c y to-end” arch i t e c t u r e of the Internet is distres s - and open, non-prop r i e t a r y Internet arch i t e c - ingly unpredictable and hospitable to new tu r e. Their recommendations are not bind- competition. For individual businesses, it is far ing, however. They rely on the cooperative mo r e profitable and strategic to try to use pro- spirit of the companies and individuals pr i e t a r y standards to shield themselves from involved in promulgating standards. competition and channel Internet users into As billions of dollars of investments have co n t r olled, prop r i e t a r y spaces. been plowed into Interne t - r elated businesses,

27 Save the Internet Commons

the strength of the cooperative spirit in setting co u r ts, user groups and nonprofit standards st a n d a r ds has dimmed. The financial stakes or ganizations are struggling to combat pres - ar e just too high. Rather than seeking to nego- su r es to scuttle open standards. The inevitable tiate common standards of interop e r a b i l i t y tension between an open Web arch i t e c t u r e that all can use, many companies use every and the realities of patents and licensing can- tactic available to try to outmaneuver competi- not be entirely avoided, of course, as the tors and impose their own prop r i e t a r y techni- W3C rea l i z e s . 13 cal prot o c o l s . 11 For such But as new technologies appear and diffe r - Rat her than seeking to companies, privately ent companies seek to institutionalize a com- owned, rev e n u e - g e n e r - petitive advantage through standards, it is ne g ot i a t e common ating standards are the inevitable that the battles over standards will ideal outcome rather in t e n s i f y . As we see later, several arenas are sta n d a r ds of than the open and tech- pa r ticularly contentious. nically optimal stan- in te r operability that all da r ds that have tradi- H ot Zones for Internet Sta n d a rd Set t i n g tionally emerged from Instant Messaging (IM) can use, many compa n i e s the cooperative It is possible to pick up the phone and call any- ap p r oach. Not surpris- one in the world reg a r dless of his or her tele- use ever y tactic avai l a b l e in g l y , large technology phone service carri e r . This is not the case with companies have the instant messaging (IM), a software application to try to outmaneuver gr eatest leverage in off e r ed by service providers that allows individ- imposing their pref e r red ual computer users to identify other users who co mp et i t o r s and impo s e st a n d a r ds and protocols. ar e online at the same moment and to commu- Fr ustrated at the pace nicate with them in text and in real time. One their own prop r i e tar y of W3C’s standard- s e t - hitch is that two users cannot communicate ting for Web servi c e s — a with each other unless both have the same IM tec hnical proto c o l s . rapidly moving technical se r vice prov i d e r . arc h i t e c t u r e that has Despite this barri e r , there has been a rapid en o r mous market potential—a group of the escalation in personal and business use of IM, la r gest technology players, including Micros o f t , making it a large and significant commerci a l IBM, Intel and BEA systems announced in pl a t f o r m. More than 50 million Americans Fe b ru a r y 2002, the formation of their own con- sent an instant message last year, for example, so r tium, the Web Services Interop e r a b i l i t y and UBS War b u r g, an investment bank, Or ganization (WS-I), which seeks to prom o t e trades about $1 billion in stocks and bonds Web services. While the WS-I claims it is not a daily with IM. Meanwhile, growth in wirel e s s st a n d a r ds organization, but a complement to In t e r net use worldwide is creating more the W3C, its formation has been interpreted as op p o r tunities for instant messaging, prom p t - a signal that the future may see a splintering of ing some industry observers to predict that st a n d a r ds for Web services technologies.12 IM could eventually displace email as the In the face of such pres s u r es by the large s t pr i m a r y means of person-to-person online companies, various government agencies, communication.

28 Saving the Information Commons

Despite the size of this new platform, The Windows XP/.NET Threat infighting among competing service prov i d e r s Despite the U.S. Governm e n t ’ s antitrust vic- has prevented the adoption of a universal stan- to r y over Microsoft, consumers may not enjoy da r d. A number of IM service providers have gr eater choice, convenience and innovation in accused AOL Time Warn e r , the dominant operating systems. By failing to win significant pr ovider with more than 100 million reg i s - remedies, the Government has essentially te r ed users, of actively blocking them from sanctioned a new round of anti-consumer linking with its system, despite a Federal be h a v i o r . The newest offense comes in the Communications Commission (FCC) order in fo r m of Windows XP and .NET (herea f t e r 2000 to do just that as a condition of the ref e r red to as “Windows XP/.NET”), a me r ger of AOL with Time Warn e r . Similar bundle of products that combine an operating tactics have been attributed to Microsoft, the system, multimedia applications, Internet number two-ranked IM prov i d e r . se r vice and ecommerce services. The Internet Engineering Task Force Until rec e n t l y , all these separate functionali- (IETF), a nonprofit standards orga n i z a t i o n , ties were offe r ed by competing companies and has been attempting to bring the parti e s in open source software forms. Micros o f t ’ s together and reach a universal IM standard for “innovation” was to bundle them all into a the last three years. So far, no consensus has co m p r ehensive package. The company claims been reached. An agree m e n t — “ I M U n i f i e d ” — that this bundling helps it serve its customers sought to support the IETF’s effo r ts to forge be t t e r . This might be true if consumers could open universal IM standards among the major still choose rival software applications easily rivals of AOL Time Warn e r , including AT& T , and those applications were as fully compati- Mi c r osoft and Yahoo!, but so far this agree - ble with Windows XP as Micros o f t ’ s are. But ment has not yielded any concrete results. this is simply not the case, critics claim. All the major companies involved are clearly Worse, many critics note that Win d o w s jockeying for an opportunity to impose their XP/.NET “takes private” many of the open pro p r i e t a r y protocols as the IM universal stan- arc h i t e c t u r e features that are fundamental to da r d. It is an open question whether the IETF the Internet. (It would also introduce alarmi n g can successfully resolve this conflict. After all, new threats to consumer privacy.) 14 it has no formal legal or political authority in Mi c ro s o f t ’ s Windows operating system is setting standards, just the goodwill and acqui- ov e r whelmingly dominant on desktop per- escence of participants. For these reasons, sonal and business computers and this ubiq- policymakers must continue to be vigilant in uity means that the company has an exagger- ensuring that no single company or group of ated influence in the standard setting proc e s s companies be allowed to impose a closed IM for personal computing software. Windows is arc h i t e c t u r e that would thwart competition, now the almost universal platform from which fr eeze innovation and disenfranchise con- individuals do their everyday computing; it is sumers. The benefits of open standards in pro- the space where they do word proc e s s i n g , moting freedom, decentralized control of sp r eadsheets, email and so on. Competing in f o r mation and the synergies of networking so f t w a r e providers have had to design their ar e too grea t . pr oducts according to the terms of Micros o f t ’ s

29 Save the Internet Commons

pro p r i e t a r y platform. Micros o f t ’ s abuse of this damental importance of open standards and market power was the core of the govern- pr otocols. They are a critical tool for assuring me n t ’ s antitrust case against the company. competition and pres e r ving diverse and inno- With the introduction of Windows XP/.NET, vative communications. Mi c r osoft is now embarking on this trou b l i n g path once again. The Standards Impasse for eBooks Windows XP/.NET is widely seen as an Dozens of diffe r ent ebook reader devices are attempt by Microsoft to extend its prop r i e t a r y now in stores and a confusing array of incom- desktop platform onto the Internet. Individuals patible ebook formats is emerging. Will uni- using the Internet would do so through versal technical standards for publishing, dis- Windows XP/.NET and theref o r e competing tributing and cataloging digital ebooks emerge , In t e r net services would have to design their and will they allow readers the same rights that pr oducts according to technical standards set they currently enjoy with paper books? Or will by Microsoft. For the average user, the Interne t the publishing industry and technology compa- would cease to be a neutral platform. Instead it nies remain at loggerheads, each pursuing its would become a medium that is filtered and own parochial strategic goals? moderated by the de factodesign standards that A universal ebook standard would apply to Mi c r osoft has imposed through Win d o w s the presentation of an ebook’s text, the cata- XP / . N E T . The company would gain enormo u s loging information or “metadata” that identifies and unprecedented influence over what can be the book’s author, publisher, subject matter et c . , said and done on the Internet. and the copyright protections that the digital Mi c r osoft has already shown its intentions work would enjoy. To date, the industry’ s to use this power. It initially designed Win - ap p r oach has been to work towards a separate dows XP/.NET with an Internet browser fea- st a n d a r d for each of these functions. There are tu r e called “Smart Tags,” which automatically wide expectations that the three most effe c t i v e highlighted words on the Web and hyper- and widely accepted formats will be combined linked them to Micros o f t ’ s advertisers’ web- at some point in the future. The disparate sites. Cast as a user convenience, Smart Tag s ar ray of standards has obvious implications for would have given Microsoft and Micros o f t - the ability of consumers to download and dis- designated websites a powerful, privileged play text from a wide variety of publishing status on the Internet at the expense of every- so u r ces. one else. A public outcry over this feature The history of the Internet suggests that an fo r ced Microsoft to eliminate it from the final, open, neutral set of standards would have the publicly released version of the software. most powerful, positive effects on this budding Remedies are available. The company could marketplace. One need only look at how the be forced to alter the design of its platform to co m m e r cial online services, each based on its make it more open to and compatible with own prop r i e t a r y standards, were swamped by rival products. It could be compelled to make the open standards of the Internet. Notwith- public certain parts of its software code to standing this history, there are important rea - allow users to modify it. But a prer equisite is sons why consensus standards for ebooks are for courts and regulators to recognize the fun- not being readily developed and accepted.

30 Saving the Information Commons

Publishers fear that electronic publishing, creating standards for ebook cataloging data especially on the Internet, will undermine their and copyright protection. The Digital Object capacity to control the distribution of copy- Identifier Foundation’s DOI standard is righted works. If readers can make quick and emerging as the most widely accepted set of pe r fect copies of electronic texts, it would obvi- standards for cataloging ebook data. ously harm publisher’s revenues. But prel i m i - Little prog r ess is apparent in the effo r t to na r y evidence suggests that even when digital cr eate a copyright security standard for ebooks. versions of a book are available for free via the This is proving to be a major barrier to the In t e r net, most people still prefer to buy a physi- gr owth of the technology. No large publishers cal copy of the book. In any case, publishers are ar e adopting the OEBPS. They are continuing de t e r mined to institute “digital rights manage- to use prop r i e t a r y formats to release new ment” systems to allow them to strictly control ebooks and the various owners of these stan- how ebooks can be accessed, used and reused. da r ds are aggressively protecting them. One Technology companies such as Adobe, Palm such enforcement action incited public and Microsoft have their own concerns. They pr otests. In July 2001, the federal governm e n t have invested heavily in creating prop r i e t a r y jailed Russian software programmer Dmitry ebook formats and compatible reader devices. Sk l y a r ov in California for writing a prog r a m Na t u r a l l y , they do not want to abandon their that circumvents the encryption on an ebook fo r mats for a universal, common standard. So fo r mat owned by software maker Adobe Sys- for the foreseeable future, the competing tech- tems. Although the government later rel e a s e d nologies will fight it out in the marketplace Sk l y a ro v , it has continued to prosecute his until one becomes the dominant standard. em p l o y e r , Elcomsoft, for violating the Digital The public, for its part, has a keen interest in Millennium Copyright Act of 1998 (DMCA). establishing open standards in order to allow (For more, see Part III, Section D.) Elcomsoft the cheap and easy publication of ebooks by ar gues that the criminal aspects of the DMCA ord i n a r y users. ar e vague and overly broad, and that the law An industry consortium called the Op e n violates the First Amendment rights of com- eBook Forum comprised of the large s t puter prog r a m m e r s . ebook technology companies and publishing Cl e a r l y , there is a conflict of interest here houses is hosting a series of working grou p s for ebook companies in the search for com- on ebook standards. Its first achievement has mon standards. For example, although Adobe been the creation and public release of the is a funder and active participant in the Open Open eBook Publication Struc t u r e (OEBPS). eBook Forum, it continues to push its closed, This is the grou p ’ s nominated standard for pro p r i e t a r y standards. Other key ebook forma t the first presentation of the text of ebooks. It owners like Palm and Microsoft are employ- is an open standard that anyone can use to ing the same strategy. The balkanization of el e c t r onically publish their fiction or nonfic- st a n d a r ds means that individual readers can tion work; most brands of ebook rea d i n g read only those ebook titles that are compati- devices can display the format. ble with their particular brand of rea d e r Other working groups at the Open eBook device. They cannot swap titles amongst Forum and elsewhere are in the process of friends and colleagues with diffe r ent devices,

31 Save the Internet Commons

in the way they can with traditional books. tions and broadcasting have been closely reg u - Just how long these restrictions continue lated. Prop r i e t a r y technical standards have a will depend on how the impasse over stan- unique power to influence marketplace com- da r ds is resolved. One thing is certain: The petition, technological innovation, democratic lack of universal ebook standards is inhibiting cu l t u r e and citizen rights. In the Internet era, the growth of a vigorous ebook culture and ownership of core technical standards confers In t e r net distribution and sales. a similar degree of influence, and theref o r e wa r rants equally intense levels of monitoring. If closed, prop r i e tar y A Future of Openness But such monitoring of Internet standards is or Control? complicated. That innovators can design new sta n d a r ds prevail in The importance of open In t e r net applications without seeking permi s - st a n d a r ds and prot o c o l s sion of any network or standards owner is an these new areas, the in pres e r ving the decen- undeniable advantage. It can spur competition, tralized, parti c i p a t o r y pr omote innovation and enhance freedom of In te r n e t is likel y to evol ve quality of the Interne t speech and culture. Yet that very same stan- means that the continu- da r d-setting power can quickly become an into a more pred i c ta b l e , ing battles over stan- anti-competitive and anti-democratic tool. da r ds summarized ear- No n p r ofit, cooperative standards setting co m m e r cial and lier have major implica- bodies such as the Internet Engineering Tas k - tions for the nature of fo r ce and the World Wide Web Consorti u m centralized medium. This the public domain into have proven to be the best means to date for the future. setting standards. They have insisted upon dia- would not serve the Many crucial, perma - logues that prize the most meritorious, open nent technical standards technical standards. In the face of new industry values of an open, free , for Internet media will pre s s u r es, these bodies must be supported in be set in the coming ev e r y way possible. At the same time, Con- democratic society . decade. In addition to gr ess, the Federal Communications Commis- instant messaging, the sion, the Department of Justice and other In t e r net platform and ebooks, standard- s e t t i n g in d u s t r y regulators must maintain a steadfast disputes are unfolding in a broad range of commitment to the end-to-end arch i t e c t u r e of In t e r net services, including music, video and the Internet. This is not merely a matter of wi r eless connections. If closed, prop r i e t a r y good economic or technology policy, but a st a n d a r ds prevail in these new areas, the Inter- matter of protecting the heart of our demo- net is likely to evolve into a more pred i c t a b l e , cratic culture in the digital age. co m m e r cial and centralized medium. This would not serve the values of an open, free , Protecting Open Access to the Internet democratic society. Open standards are key to It is the open quality of the Internet arch i t e c - the goals of competition, innovation, cultural tu r e that has made it such a fertile zone for diversity and the First Amendment. technical innovation and public communica- This is one reason why, historically, the tions. As we saw in the previous section, this owners of infrastruc t u r e in telecommunica- open character is partly a product of the non-

32 Saving the Information Commons

pro p r i e t a r y technical standards that govern nate among Internet service providers (ISPs) in f o r mation flow around the Net. But it is and grant access only to competing ISPs (if also a result of specific U.S. Governm e n t any) that agree to certain conditions compatible decisions that determined the terms on which with the cable company’s competitive interes t s . people could accessor physically connect to Cable companies have every incentive to attach the Internet. restrictive commercial conditions to their In 1984, as part of the break up of AT& T , br oadband services and to shape the way people the U.S. Government imposed a nondiscrimi- access the Internet in ways never permitted to nation rule on the nation’s telecommunica- telephone carriers. Instead of an open Interne t tions system. From that point on, owners of with no filtering or blocking of content or telephone networks could not decide which applications flowing from one end user to the appliances or applications could connect to next, the Internet could be modified to have the their networks, nor bar new services from arc h i t e c t u r e of cable television: a closed, com- them. So, when people began to discover the pletely controlled content marketplace. In such In t e r net in the 1990s, they were able to dial- a scenario, cable companies would act as per- up from home using their telephone line and manently entrenched “gatekeepers” by virtue of they could choose from among many diffe re n t their control over millions of users’ first point In t e r net service providers (ISPs). Tel e p h o n e of access. ca r riers by law could not discriminate; op e n Although cable companies strongly deny that ac c e s s was the rul e . they pose any threat to the openness of the The terms of Internet access are rapidly In t e r net, the commercial advantages of the changing, however. The fertile open arch i t e c - gatekeeping strategy are proving irres i s t i b l e . tu r e of the Internet could be an unfortu n a t e For example, many cable broadband prov i d e r s ca s u a l t y . As the sophistication of websites and block users’ access to streaming video, which is we b s u r fers grows, simple dial-up access to the television-like content delivered over the Inter- In t e r net is proving inadequate. More and more net. Video streaming undercuts the cable tele- people are accessing the Internet using faster, vision industry’ s largest source of revenue, its always-on connections known as “broadband.” monthly subscriber fees. As Daniel Somers, an Cable television companies have been at the AT&T executive put it, “We didn’t spend $56 fo re f r ont of this trend. They own networks of billion on a cable network to have the blood wi r es into homes that are perfect for broa d b a n d sucked from our vein.”15 access. But unlike telephone carriers, they do Some cable companies have imposed other not operate under government policies mandat- restrictions on Internet users. They have pro- ing open access. In March 2002, the FCC for- hibited home networking, running a website mally classified Internet access via cable broa d - fr om a home computer and file sharing activ- band systems as an “information service” under it y . Cisco Systems now offers a product to the Telecommunications Act, rather than as a cable companies that allows them to introd u c e “telecommunications service” subject to the selective quality-of-service filters on to their common carrier regulations that apply to Inter- ne t w o r k s . 16 This technology would privilege net access over telephone lines. Cable compa- ce r tain websites (i.e. ones that generate rev - nies are theref o r e legally permitted to discrimi- enues for the cable company) for fast down-

33 Save the Internet Commons

loading, leaving content from the rest of the se l f - o r ganize their own commons—was not an In t e r net to trickle through more slowly. All accident. It occurred to a large extent because these measures compromise the Internet as an of the unconditional, unmediated terms on open, impartial platform for many-to-many which people could access and use the Inter- communication. net. Altering the shape of Internet arch i t e c t u r e Now that cable companies are a significant in a way that centralizes control over access new force in the design and functioning of the and use threatens the very basis of its popular- In t e r net, it means that any newcomer with it y . It threatens innovation, competition and innovative content or democratic cultural free d o m s . Al t ering the shape of technical applications If current trends continue, cable broa d b a n d must first secure the access to the Internet could eventually be the In te r n e t archi te c t u r e in a ap p r oval of cable execu- no r m for a large percentage of the population. tives. This is potentially Using telephone lines for access—either via tra- way that centralizes a very dangerous devel- ditional dial-up services or broadband DSL opment, explains Prof e s - technology—will likely be common alterna t i v e s co n t r ol over access and sor Lessig: “You get less for the near future. But cable broadband will innovation and a diffe r - likely be the dominant form of Internet access use thre a t ens to the ver y ent kind of innovation for the long term. It is more ubiquitous than when the platform is not DSL, at least in the residential market, and in basis of its popularity. neutral, when the plat- general it has a superior rec o r d of technical fo r m owner can, down pe rf o r mance and customer service than DSL. It thre a t ens innovat i o n , the line, simply change The FCC signaled its disinclination to assure its mind and block the open access for cable broadband service when it co mp e tition and in n o v a t o r ’ s content or ruled in March 2002 that cable broadband did ap p l i c a t i o n . ” 17 This shift not constitute a “telecommunications servi c e ” democratic cultural un d e r mines the level that ought to be subject to common carri a g e playing field for new regulation. This ruling was especially unfortu - fre e d o m s . In t e r net-based business nate because it gives DSL providers a new rea - ideas; by dint of their son to argue for the same reg u l a t o r y status for gatekeeper powers, cable companies gain a dis- itself. The means that both cable broadband and tinct advantage over competitors by gaining the DSL companies may eventually be able to ability to impose a “tax” on the communication exclude competitors from using their infrastruc - and innovation of creators and consumers alike. tu r e, and consumers may have few competitive Pe r haps even more troubling, the shift from options for gaining access to the Internet. an Internet arch i t e c t u r e based on open access Looking further ahead, the advanced Inter- to a closed, controlled arch i t e c t u r e poses seri- net2 already connects res e a r ch universities at ous threats to freedom of expression in the data transfer rates up to 100 times faster than medium. The flourishing of civic, cultural and to d a y ’ s commercial broadband—speeds not political communication on the Interne t — i t s even physically possible over copper tele- un p r ecedented ability to give new voices a phone wires. A new “last mile” infrastruc t u r e public platform and to allow communities to based on fiber optic and wireless technologies

34 Saving the Information Commons

will be necessary to deliver the true potential The Dangers of Media Concentration of the Internet to most homes and businesses. For more than half a century, the U.S. system The policy direction established now on of television and radio has been based on a access could well determine whether all future simple principle: Diversity of ownership and networks are essentially open or closed. competition will best serve the diverse inter- The fairest, healthiest reg u l a t o r y policy ests of the American people, particularly local would be for bothtelecommunications systems communities and minority audiences. The and cable operators to be subject to federal Su p r eme Court put it succinctly in a 1945 rul - open access req u i r ements. As a condition of ing, Associated Press v. United States: “The ap p r oval of the merger of AOL and Tim e widest possible dissemination of informa t i o n Warn e r , the Federal Trade Commission and fr om diverse and antagonistic sources is essen- Federal Communications Commission explic- tial to the welfare of the public.”18 itly req u i r ed the giant new company to main- Nowadays, this principle is gravely threa t - tain open access to no fewer than three com- ened. Consolidation of the nation’s various peting ISPs on its cable systems. A number of media—both within each media industry and city governments, as part of their local fran- among them—has greatly intensified, and chise agreements with cable operators, have th r eatens to grow much worse if the FCC also sought to impose open access policies. But continues on its current course. no formal federal policy of open access for the It was once a truism that the First Amend- na t i o n ’ s cable systems has yet been established. ment belongs to the public, and that media The operators of some cable systems have companies should affi r matively serve the pub- raised doubts about the technical feasibility of li c ’ s need to hear diverse viewpoints and to making cable broadband open access. But have access to speak in their own voice. Now AOL Time Warn e r ’ s actual behavior following the First Amendment is being redefined as a its merger has demonstrated that such doubts new form of corporate protectionism against ar e groundless. Open access is feasible, and market regulation. It is the corporation, not compliance with FCC mandates is possible. the individual citizen, whose rights are being The sooner the FCC mandates open access th r eatened, as FCC Chairman Michael Powell for all cable operators, the better. sees it. Powell recently declared that long- Open access to the nation’s telecommunica- standing FCC rules limiting media ownership tions network has been critical to the Interne t ar e “offensive to First Amendment values.” gr owth as a great, decentralized public com- But the idea that blind deregulation will munication res o u r ce. It has fostered enormo u s necessarily serve the public interest should business innovation and pros p e r i t y - b u i l d i n g have been discredited by the aftermath of the competition. It has also enabled some core 1996 Telecommunications Act. That landmark democratic values: free expression, cultural legislation was touted by Speaker Newt Gin- openness and robust public dialogue. FCC grich and President Bill Clinton as a bracing inaction on open access could sanction the mandate for competition, lower prices and evolution of an entirely diffe r ent Interne t pr ogramming diversity. arc h i t e c t u r e and with it, a host of very worri - Seven years later, few of these goals have some, entirely predictable consequences. been met. Quite the opposite: the most strik-

35 Save the Internet Commons

ing result of the Act has been relentless con- as s u r ed a modicum of diversity in our nation’s solidation. A detailed 2001 analysis by Con- media—as “arbitrary and capricious.” These sumers Union, “Mapping Media Market rules prevented any single company from own- St ru c t u r e at the Millennium,” shows that the ing local stations that reach more than 35 per- telephone and cable industries do not compete, cent of the national audience, and proh i b i t e d but instead focus on their respective markets. common ownership of a cable system and a Long-distance telephone carriers cannot br oadcast station in the same community. compete with local telephone companies Similar rules prevented any single cable because the latter have succeeded in thwarti n g company from owning systems that rea c h long-distance entry into local markets. Satel- mo r e than 30 percent of all cable households lite TV is not a serious competitor with cable nationwide. But another recent federal court television, which is an oligopoly at the decision will ensure that this ownership cap on national level and a monopoly at the local cable systems will be relaxed, perhaps dramati- level. Radio and newspaper chains have grow n ca l l y . Jeff Chester, executive director of the la rg e r , and national television networks are Center for Digital Democracy, predicts that a gr owing bigger as they buy up more local single cable company could end up control l i n g br oadcast stations. access to more than half of all U.S. households. “The fundamental failure of media and Fi n a l l y , as part of the Commission’s “biennial” communications policies to develop competi- review of all of its ownership reg u l a t i o n s tive transmission/distribution systems have left req u i r ed by the 1996 Act, the Commission is consumers at the mercy of powerful content cu r rently considering the fate of rules that and transmission companies whose most antag- pr ohibit common ownership of a broa d c a s t onistic ‘competitive’ behavior consists of fight- station and a newspaper in the same commu- ing with each other over who gets the large r ni t y . If its September 2001 Notice of Prop o s e d sh a r e of monopoly profits from consumers, Ru l e m a k i n g in this matter is any indication, and who often control content delivered to this rule is also likely to be relaxed absent an consumers,” writes Gene Kimmelman, co- ai r tight empirical case urging ret e n t i o n . di r ector of Consumer Union’s Was h i n g t o n The consolidation unleashed by the off i c e . 19 Consumers are most often used as Telecommunications Act has weakened local hostages by “Big Media” in their inter-i n d u s t r y br oadcasting and vested greater power in a squabbles, as exemplified by the nasty public handful of companies to dictate the nation’s spat in 2000 between ABC, owned by the Wal t pr ogramming. This has already had a signifi- Disney Company, and Time Warn e r , over the cant impact on the nation’s journalism and te r ms of cable carriage of Disney prog r a m - th e re f o r e on the quality of government and ming on Time War ner systems. Prot e c t i n g democratic dialogue. Leaders of the journa l i s m market turf is a more salient goal than mean- pr ofession have long considered their work as ingful diversity, innovation or public servi c e . independent watchdogs to be a public trus t , Fu r ther concentration within the media not a profit center. But the corporatization of in d u s t r y is likely following a federal appeals br oadcast and newspaper journalism has ush- co u r t ruling in Februa r y 2002 declaring several er ed in stiff economic criteria for rev a m p i n g of the FCC’s ownership rules—which have the character of the news.

36 Saving the Information Commons

This mentality prompted the Disney Com- that inevitably occur when power is exerci s e d pany to consider replacing the acclaimed out of public view. As media companies begin Ni g h t l i n e news program with David Letter- to amass cable, television, radio and newspaper ma n ’ s Late Showbecause comedy/talk was seen outlets in the same city, we are likely to see a as reaping higher ratings than news. Many concentration of control and less competition ob s e r vers believe that the evening news pro- in news rep o r ting and advertising rates. This grams may be the next victims. It would be a tr end could have particularly distressing conse- logical culmination to the distressing surge of quences in small- and medium-sized markets. low-cost punditry at the expense of serious At the national level, we could see even more rep o r tage, tabloid-style “news” shows and the incestuous forms of vertical integration among shameless use of news to cros s - p r omote enter- media industries than we have seen to date. tainment fare (such as plugs for Su rv i v o r on Ro b e r t McChesney has persuasively argu e d local and national news programs). At many in his book, Rich Media, Poor Democracy, that news operations, media mergers have led to these sorts of media concentration foster the vi r tual blackouts of issues that might prov e pr oliferation of tabloid fare and sound-bite em b a r rassing to the parent company (such as pu n d i t r y, and cutbacks in serious journa l i s m ABC News’ reticence to broadcast stories that and thoughtful commentary. The lust for new reflect poorly on the Walt Disney Company economic and marketing “synergies” in media and NBC News’ uncritical coverage of issues, conglomerates tends to produce the paradoxi- such as nuclear power, that directly affe c t cal result of greater absolute quantities of con- General Electric).20 tent but less diversity and daring among what This tendency is industry-wide. The news is produced. me d i a ’ s self-serving editorial bias can be seen in The inexorable bias is for programming and its failure to cover policy issues that affect their news that serves commercial goals, especially own bottom lines. The 50 largest media compa- higher ratings. Programs that might be nies spent more than $111 million in lobbying thoughtful, offbeat, experimental, controv e r - between 1996 and mid-2000, and media execu- sial or anti-commercial are the distinct excep- tive and employees gave $75 million in cam- tion. All this stands to reason in a broa d c a s t paign contributions to candidates for federal licensing system that subsidizes commerci a l of fice and the two major political parti e s content over all else. As McChesney and John between 1993 and mid-2000, according to the Nichols put it, “When the government grants Center for Public Integrity. 21 Such political fr ee monopoly rights to TV spectrum, it is not spending helps account for the scant broa d c a s t setting the terms of competition; it is picking coverage of the congressional giveaway of “digi- the winner of the competition. Such policies tal spectrum” to broadcasters (estimated value, amount to an annual grant of corporate wel- $70 billion); the recommendations made by a fa r e that economist Dean Baker values in the federal advisory panel about new public interes t tens of billions of dollars. These decisions obligations for broadcasters; and the curren t have been made in the public’s name, but co u r t ruling relaxing media ownership rules. without the public’s informed consent.”22 Fu r ther concentration of the nation’s media In c r easing media concentration is not just outlets will likely only exacerbate the abuses an economic issue, it should be stressed, but

37 Save the Internet Commons

also a political and democratic issue. When a ❚ Retain and strengthen the existing rules lim- handful of media giants can more or less iting ownership within a given media indus- de t e r mine what news shall be gathered and tr y and between industries; how our society will conduct its public conver- ❚ Apply existing anti-monopoly laws to the sations, there are serious implications for dem- media and, where necessary, expand the ocratic self-determination. It matters if reach of those laws to restrict ownership of minorities and women, for example, are not radio stations to one or two per owner; rep r esented among the ownership of media ❚ Establish a full tier of lower-p o w e r , non- outlets, which tends to have effects on diver- co m m e r cial radio and television stations sity of prog r a m m i n g . 23 Serious news and polit- ac r oss the nation; ical commentary also suffers when the leading ❚ Revamp and invest in public broadcasting to news media are guided more by ratings than eliminate commercial pres s u r es, red u c e jo u r nalistic values. The consequences can be immediate political pres s u r es and serve seen in the sensationalism surrounding the communities without significant disposable missing intern Chandra Levy when, during incomes; and the summer of 2001, very few news prog r a m s ❚ Reduce or eliminate TV adverti s i n g co v e r ed a government rep o r t on the threats of di r ected at children under 12. te r rorism to American society. Th e r e are a number of structural solutions— Fo r ging a new public interest initiative to some set forth by Professor McChesney in a combat media concentration is a daunting recent arti c l e 24 —that would help rein in the lo n g - t e r m project, to be sure. But it is equally media giants and diversify the range of voices ce r tain that few other media ref o r ms will that could be heard in our media system: make much headway if the economic, political and cultural power of top media companies continues to become even more concentrated.

38 III. Protect the Public Domain: Limit the Copyright Monopoly

here is a delicate balance at the heart of intellectual property law. As a society, we wish to ensure that creative people are motivated to produce T creative, literary and scientific works that everyone can use and enjoy. So we grant copyrights that give creators exclusive rights to control the copying, distribution and making of derivative works. The goal is to ensure that creators have the opportunity to be adequately compensated. If we give creators and content industries too much legal control over their works, however, there is the danger that it will stifle the free exchange of ideas and impoverish public dialogue. Imagine if cartoonist Thomas Nast (who died in 1902) could still control every rendering of Santa Claus that he popularized. Imagine if Jane Austin’s heirs could stop the making of films such as Cl u e l e s ,s which was directly inspired by an Austin novel or if newspapers could prev e n t others from repeating newsworthy facts. In a free, democratic society, an open, no n - p ro p r i e t a r y “public domain” is indispensable. That is why, historically, Congress and the courts have placed limits on the scope and term of control of creative work. Fair use principles allow teachers and students to use material for educational purposes without copyright holders’ per- mission. Fixed copyright terms restrict the length of copyright holders’ monopoly rights. These limits eventually allow works to enter the public domain and be used by anyone without permission or payment. If the information commons req u i r es an open Internet infrastruc t u r e, as described in Part II, it also req u i r es an open and vibrant public domain in content. Citizens

39 Protect the Public Domain

and consumers, scholars and commentators, companies, not the general public or crea t o r s , authors and artists all need ready access to and de t e r mine whether it shall be legal for a work use of prior creative work and information. If to be read, privately perfo r med, resold or used pro p e r ty rights in information and crea t i v e for learning or commentary. In this manner, work are too broad and absolute, they constrict overly broad copyright protections interfe r e the public domain much with important civic, cultural, scientific, edu- Activities that wer e as the overde v e l o p m e n t cational and artistic needs. of land destroys open This trend has been accelerating since the once tak en for gra n te d spaces. 1990s when, at the behest of various media and In the past, copyright content industries, Congress enacted a series of and protec t ed by law— law has not expressly rec - laws that greatly expanded the rights of copy- ognized that our culture right, patent and trademark owners. Congres s libraries sharing req u i r es large, non-prop - lengthened the term of copyright by 20 years, er tized “open spaces” of for example, giving copyright holders (primarily ma t erials with patron s , in f o r mation, scientific major media companies) a sheer windfall at the knowledge and crea t i v i t y . pu b l i c ’ s expense. Mickey Mouse and thousands tee n a ge r s making copies In recent years, however, of novels, poems, musicals and songs that were as the new copyright laws scheduled to enter the public domain in 2003 of CDs for their perso n a l have begun to take effe c t , we r e locked up as private prop e r ty for another it has become evident 20 years. This will force the American people use, artists using that we urgently need to pay billions of dollars for works that, but for bodies of material that the 1998 law, actually belong to them. sn i p p e ts of imager y or ar e open to everyone, as In 1998, Congress also empowered copy- in a commons. The pub- right holders to assert new forms of control sound for new lic domain is absolutely over their works long after they have been critical. sold. The Digital Millennium Copyright Act cre a t i o n s — a r e summarily If owners of the copy- (DMCA) makes it a crime for anyone to cir- right monopoly claim cumvent software encryption or other schemes red e f ined as “piracy.” ev e r y last iota of control that restrict user access to digital materials, over their works, then a even if the access (and subsequent use) would significant amount of freedom is lost. The no r mally be considered legal under curren t activities that were once taken for granted and copyright law. pr otected by law—libraries sharing materials These technologies essentially override copy- with patrons, teenagers making copies of CDs right law by locking up content in perpetuity. for their personal use, artists using snippets of By allowing private companies to unilaterally im a g e r y or sound for new crea t i o n s — a r e sum- dictate not just who may access a work, but marily redefined as “piracy.” The democratic how it may be used, the public’s right to the fair fr eedom to use and share a work as one sees fit use of a digital work is effectively undermi n e d . is lost—or more accurately, control is shifted Th r ough aggressive “shrink-wrap” licenses for to a handful of corporate “content owners” to so f t w a r e, “click-through” licenses on websites, exploit for maximum market gains. These and digital rights management technologies fo r

40 Saving the Information Commons

digital content, copyright owners are asserti n g wanted to use a copyrighted work, the copy- much more control over creative works and right notice disclosed whom you needed to ask in f o r mation than ever before. for permission. These proc e d u r es meant that The result of these various laws and techno- gr eat quantities of works belonged to the pub- logical systems is an endangered public lic domain from their inception because only a domain. There is now growing alarm that the fraction of copyright holders ever reg i s t e re d dramatic expansion of copyright law is simply their works, notes Litman. Furth e rm o r e, only a new form of government protectionism for 15 percent of them, on average, renewed their outdated business models. It is subverting new copyrights after the initial term of copyright technologies and innovative businesses, and pr otection, so most works entered the public in t e r fering with the free flow of ideas on domain automatically. which our society and economy depend. The elimination of the registration and What, then, might be done? Part III surve y s renewal req u i r ements—combined with the 11 several attractive proposals for asserting the extensions that have been granted to copyright pu b l i c ’ s stake in copyright law. te r ms since 1960—means that a citizen can no longer assume that anything is in the public Ma k e It Easy to Put domain and theref o r e freely usable and share- Wor ks into the Public Domain able. To make matters worse, the various Until 1976, when Congress enacted a major rights assured by copyright—to control rep r o- revision of the nation’s copyright laws, copy- duction, public perfo r mances and public dis- right holders were req u i r ed to register their plays, for example—have been made separate works with the U.S. Copyright Office. The and distinct, and may theref o r e belong to dif- elimination of this seemingly gratuitous for- fe r ent owners. Yet there is no central reg i s t r y mality in 1976 meant that al l works automati- for identifying the owners of works, which cally enjoyed copyright protection from the can make it well-nigh impossible for even a instant of their creation. There was no need conscientious user of a work to figure out for an author to register a work or place a who to contact for permission or payment. fo r mal © notice on a book or article. Ev e r y- A reasonable question to ask, says Prof e s s o r th i n g was copyrighted, and renewal of that La w r ence Lessig, is, “Why should copyright copyright became unnecessary. owners be relieved of any effo r t to reg i s t e r What may seem like a sign of administrative their copyrights? Why should this govern- pro g r ess and effi c i e n c y , argues Professor Jes- ment-granted monopoly be automatically con- sica Litman of Wayne State University Law fe r red without the most minimal ‘technical’ School, was in fact a defeat for the public req u i r ements of registration and ren e w a l ? ” 25 domain. The formal registration and ren e w a l U.S. ratification of international copyright pro c e d u r es were a principal method for assur- tr eaties abolished the principal means for ing that works entered the public domain. assuring that most works could enter the pub- Be f o r e the 1976 Act, Litman explains, the lic domain. Unfortu n a t e l y , no substitute statu- default rule in copyright law was that you were to r y mechanism has yet been devised. Re- entitled to assume that a work was in the public instituting the registration and ren e w a l domain absent a copyright notice. And if you req u i r ements for copyright protection would

41 Protect the Public Domain

be one step toward reclaiming the public intended as an inducement to creators, to domain. But since such a move could req u i r e encourage them to create new products. But amending or abrogating several interna t i o n a l no film studio, book publisher or software tr eaties, another approach might be a new maker seriously expects to recoup profits from statute that explicitly sets out proc e d u r es for a work beyond a five- or ten-year horizon, at placing a work in the public domain.26 Cu r - most. The length of protection is utterly gra- rently there is no legally recognized form for tuitous to the creator—and a deadweight loss doing so and no way to distinguish public to the public. domain works from others. A voluntary, con- Even more absurd are extensions of the tractual system for putting works in the public copyright term to very old works created by domain is being attempted by the Crea t i v e authors who are now dead. What possible Commons, to be discussed in Section G. incentive effect could copyright have on A simple federal law outlining steps for deceased creators? Yet that is precisely what legally placing a work in the public domain happened when Congress enacted the Sonny needs to be drafted and enacted. It would be Bono Copyright Extension Act of 1998. In the an important step—symbolically and substan- name of “rew a r ding” creators, tens of thou- tively—for invigorating the cultural commons. sands of works created 60 to 70 years ago— It would recognize that the public domain the film The Jazz Singer, The Great Gatsby, the matters. Such legislation has the added fillip musical Show Boatand works by Robert Fros t that it would not likely encounter much politi- and Sherwood Anderson, among others—will cal opposition; no one’s ox is gored by offe r i n g not enter the public domain until after 2019. this additional choice to those who, for what- In actuality, of course, the benefits of the ever reason, want their works available to any- copyright extension will accrue primarily to one without legal impediment. the corporate owners of copyrights like Disney and the authors’ estates. Sh o r ten the Term of Copyr i g h t To some people, this controversy may sound The initial term of copyright law at the begin- rather academic or trivial. But in fact it not ning of the American republic was 14 years only affects the payments that the public must with a renewal term of another 14 years. Now, make for works that belong to them, it also for all practical purposes, the term of copy- impedes future crea t i v i t y . Consider how the right might as well be perpetual. This rep o rt , Copyright Ter m Extension Act allowed the for example, will be protected by copyright estate of Marga r et Mitchell to retain copyright until approximately 2100 (the lifetime of the co n t r ol of her classic novel, Gone With the author plus 70 years). Over the past 40 years, Win d , which was due to expire and enter the the term of copyright law has been extended public domain in the 1990s. In the meantime, on 11 diffe r ent occasions. Each time it was a novelist Alice Randall decided to write a fic- ret r oactive extension to works already crea t e d tional work, The Wind Done Gone, that gave and protected by copyright law. the slave’s perspective of the antebellum South Such lengthy copyright terms run counter as portrayed by the plotlines and characters of to the historical and constitutional purposes of Gone With the Win d . Because the copyright of copyright protection. After all, copyright is Gone With the Windhad been extended, the

42 Saving the Information Commons

gr a n d c h i l d r en of Marga r et Mitchell were able in early 2003 whether copyright law will func- to obtain a prel i m i n a r y injunction against tion as a time-limited incentive to creators, as Randall preventing her from publishing her the U.S. Constitution plainly intends, or as a “unauthorized” novel. While Randall’s novel vi r tually permanent entitlement. was eventually permitted to be published (though an appeal of the case is still pending), Af firm Broad Fair Use Rights for the Public the court ruling set a troubling precedent of As new digital technologies and Internet usage using copyright law to stifle new crea t i v e pr oliferate, the cry of “piracy” is more fre- works of obvious cultural and political value. quently heard, especially among content own- A better idea is to radically shorten the ers who claim their “prop e r ty” is being stolen. length of copyright terms while making them While illegal uses of copyrighted works cer- renewable for a specified number of times. tainly occur, this rhetoric has a calculated Pr ofessor Lessig has proposed a term of five strategic purpose as well: to disguise a sweep- years once a work is reg i s t e r ed, with the ing invasion of the public’s basic rights to op p o r tunity to renew it 15 times. A failure to access and use copyrighted works. Recall that renew means that the work falls into the pub- copyright rep r esents a cultural barga i n lic domain.27 between the public and authors. Throu g h The virtue of such a system is that it would Co n g r ess, the public gives authors exclusive adequately protect creators who have a valu- pro p e r ty rights in their work, but in ret u r n the able work while giving the public the access public is entitled to its own benefits. Histori- that it needs and to which it is entitled. “The ca l l y , this has been embodied primarily in fair benefit for creativity from more works falling use rights and limited copyright terms. into the commons would be large,” writes Over the past twenty years, however, various Lessig. “If a copyright isn’t worth it to an media industries have prevailed in reducing or author to renew for a modest fee, then it isn’t eliminating the public’s end of the copyright wo r th it to society to support— t h r ough an ba r gain. It has done so through outright ar ray of criminal and civil statutes—the changes in the law, new technological systems monopoly protected. But the same work that that allow companies to control the access and the original author might not value could well use of works and new contract prov i s i o n s be used by other creators in society.” 28 (such as software shrink-wrap and Web click- The appropriate limits for copyright prot e c - th r ough licenses) that strictly limit what con- tion may be determined by the U.S. Suprem e sumers may do with software, music, video Co u r t in the near future. In Februa r y 2002, and digital text. In their defense, the various the Court agreed to hear the case of El d r ed v. content industries tend to argue that fair use As h c ro f t and decide whether Congress had exists only as a type of market failure (i.e., in exceeded its constitutional authority by enact- ci r cumstances where copyright owners cannot ing the Copyright Extension Act. Plaintiffs ex e r cise sufficient control over a work to earn ar gue that the law “has ren d e r ed meaning- revenues from it). Thus, in a series of limited, less…the plain and express intent [of the Con- highly specific circumstances, the law has stitution] to restrict the duration of monopolies historically recognized uses of a work that over speech.”29 The Court is expected to rul e ar e personal, educational, non-commerci a l ,

43 Protect the Public Domain

limited in scope and essential to parod y . But th r eats to intimidate children who have made content owners have resisted arguments that Ha r ry Potterfan websites and an artist who fair use is a broad principle reflecting the uses Barbie dolls in photographic commen- la rg e r , prior interests of our democratic polity taries about American beauty ideals. The and thus superseding copyright. chilling effects on free speech and crea t i v i t y The full scope of these assaults on the pub- ar e significant. li c ’ s fair use rights cannot be reviewed here. The need for a clearer , more accessible defi- (They are explored at length in Why the Public nition of fair use rights—one that is rea d i l y Domain Matters, a recent rep o r t by the New understood by the public and secure against America Foundation.) Suffice it to say that in legal intimidation—is becoming more urge n t . small, incremental ways and large, wholesale Th e r e are at least three reasons for this, argu e ways, the public’s legal ability to quote, Pr ofessor David Lange and Jennifer Lange excerpt, modify, criticize, satirize and reu s e Anderson. First, the collisions between copy- existing creative works is being dramatically right law and the First Amendment is intensi- diminished. fying, a conflict that can only be decided To combat this steady erosion of the public’s in favor of the First Amendment. A clear, rights, we need a clearer , broader affi rm a t i o n aff i r mative fair use right could help strike a of what constitutes fair use in a copyrighted reasonable compromise between these two work. The canard peddled by copyright indus- bodies of law. tries is that books, films, music and data are A broad, easily understood standard for fair “p ro p e r ty” in the same sense as one’s house or use is also needed to take account of contem- ca r . Unlike tangible, real prop e rt y , copy- po r a r y creative practices, note Lange and righted works cannot be owned absolutely; the Anderson. Artists increasingly rely upon direc t public has its own legitimate claims to such ap p r opriation and transformation of prec e d i n g intellectual prop e rt y . If copyright owners were works, due in no small part to the capabilities allowed to assert perfect control over their of new digital technologies. It is common works, now and forev e r , in whatever markets practice for Internet users to excerpt and mod- or downstream circumstances they unilaterally ify works, creating interesting and socially use- as s e r t, serious elements of future scholarship, ful new works. Musicians commonly use riffs cre a t i v i t y , scientific res e a r ch, democratic or samples from other music. Contemporary debate, journalism and cultural criticism painters such as Damian Loeb, Jeff Koons and would grind to a halt. Ri c h a r d Prince have used copyrighted or A central problem is the highly complex, trademarked images in their works. Shakespeare legalistic and intellectually unsettled dimen- bo r rowed from ancient myths; Disney appro- sions of the fair use doctrine. Only a man- priated beloved classics and folk tales; The darin class of expensive attorneys and power- Troggs drew upon Richard Berry’ s Louie, Louie ful corporations has the res o u r ces to interpret in writing Wild Thing; Dadaists shamelessly (or misinterpret) the meaning of fair use. The reused famous images; Andy War hol brazenly public can more easily be denied its legitimate used a can design owned by Campbell’s Soup; rights. For example, corporate owners of and Elvis Presley stole from the black rhy t h m copyrights and trademarks have used legal and blues tradition. It is utterly commonplace

44 Saving the Information Commons

and often necessary for new creations to to r y definition of fair use that would prot e c t ap p r opriate and transform the work of others. “t r a n s f o r mative critical approp r i a t i o n . ” 30 Th e y If creativity is so intimately connected with contend that fair use should not be a set of ap p r opriation, especially in the Internet era, byzantine legal rules but a legal recognition of why shouldn’t this fact be reflected in contem- ev e r yday creative and communication practices. po r a r y copyright law, rather than trying to As Lange and Anderson write: “Fair use is not su p p r ess a central reality of creative expres s i o n me r ely (or even primarily) about the market- in our time? place for copyrighted Fi n a l l y , copyright law is intruding into the works; it is about what If creativity is so private realm of life with greater freq u e n c y [Lloyd] Wei n r eb calls ‘a and depth, contorting everyday habits with co m m u n i t y ’ s established in t i m a te l y connected nonsensical legalisms and interfering with the practices and under- cr eative process itself. The American Society standings.’” wi t h approp r i a t i o n , of Composers, Authors, and Publishers, the A broad recognition of music licensing agency, once sought to prev e n t fair use would make clear es p e c i a l l y in the Inter n e t the Girl Scouts from singing songs around the that fair use rights are ca m p f i r e without a license. The ostensible not subordinate to the era, why shouldn’t thi s owner of the Dewey Decimal system has pro p e r ty rights of copy- demanded licensing payments for using “its” right holders. It would fact be refl e c t ed in li b r a r y classification system. MGM, the pro- clarify that fair use is not ducers of James Bond movies, have claimed simply a usage indulged co n te mp o r a r y copyr i g h t that the latest Austin Powers spoof movie is a by copyright holders at copyright infringement. Disney even proh i b i t s their own sufferance, for la w, rather than trying to el e m e n t a r y schools from using its stories, public relations rea s o n s characters or music for school plays. or as a result of their su p p r ess a central rea l i t y These are natural outcomes when copy- inability to charge rev - right holders are able to assert “perfect con- enues for smaller-s c a l e of crea t i v e expression trol” over all uses of their works. When uses (the “market failure” copyright protection is so expansive, wide th e o r y). Fair use to in our time? swaths of creative endeavor start to become quote, criticize, satirize and illegal. In this sense, they resemble the cul- modify are, rather, part of the basic rights of a tural works denounced by the Nazis as fr ee people; it is the public’s inalienable benefit “degenerate art”; they are works of the illegal fr om the copyright bargain. imagination. A new interpretation of fair use Seen from this vantage point, many works would help resolve the ongoing conflicts that industry reg a r ds as “unauthorized” and between property rights and public need in a “derivative” (and thus presumptively illegal) more straightforward, fair-minded way than would be legally protected under an affi rm a - now occurs. tive recognition of fair use. And why shouldn’t In a working paper presented (and still being this be so? The robustness of a society’s sci- refined for final publication), Lange and Ander- ence, economy, art, politics and culture son argue for a clear and comprehensive statu- depends upon the ability of people to make

45 Protect the Public Domain

“t r a n s f o r mative appropriations” of existing copyright law, copy-protected works are pro- works. A great society recognizes this. If tected in perpetuity. ar tists, scientists, citizens, scholars, software In addition, the law effectively overrides the pr ogrammers, journalists and musicians are first-sale doctrine, the legal rule that allows pr ohibited from using prior works—if every people to share or sell their own purch a s e d work is subject to the perfect market control copies of books, videotapes and other copy- of copyright holders, accessible only on their righted works to whomever they want. By te r ms—then our society will have begun a empowering copyright owners to control all gr eat downward spiral into creative entrop y “d o w n s t r eam” uses of their product, the law and civic torpor. Indeed, as copyright law is allows large copyright industries to stifle com- invoked with greater regularity to suppres s petition and innovation, and prevent the speech and creativity deemed to be hostile to widest possible distribution of creative works. strict market control, the chilling effects of an This, of course, is the very constitutional pur- un f e t t e r ed, one-sided copyright regime are pose of copyright law: to advance and diffu s e al r eady evident. knowledge. In giving private companies the ability to control the public’s access and use of Roll Back the Digital copyrighted works—and in so doing control Millennium Copyright Act the flow of public knowledge—the DMCA is a A vital instrument for the crusade by copy- di r ect affr ont to the First Amendment. right industries to secure perfect control over This kind of heedless expansion of copy- their works is the Digital Millennium Copy- right protection for digital information logi- right Act of 1998 (DMCA). A large and com- cally culminates in a copyright police state. plicated piece of legislation, the DMCA crimi- After all, in a pay-per-use environment, a sin- nalizes the circumvention of any technical gle unauthorized use—even for uses histori- me a s u r e controlling access to a copyrighted cally recognized as legal—constitutes “piracy.” work. The law not only prohibits making or En f o r cing the law req u i re s in t r usive monitor- distributing software (or other technologies) ing of people’s reading and viewing habits. that can bypass technical protection measures , And now that technology can feasibly detect but also prohibits the mere sh a r i n g of informa - such “violations,” copyright industries have tion about the software encryption, digital ev e r y incentive to step up their monitoring of wa t e r marking or other protection measures. pe o p l e ’ s private reading, viewing and listening By allowing content owners to “lock up” habits. The right to be an “anonymous digital content and control how it may be reader” is being superseded by corporate used, now and forev e r , the Digital Millennium in t e r ests in “digital rights management.”31 Copyright Act allows companies to in effe c t Al r eady the law has been invoked to crimi- eliminate the public’s fair use rights in digital nally prosecute a Russian programmer who materials. Such actions as making a personal had disclosed to others encryption flaws in backup copy of a copy-protected CD are con- ebook software made by Adobe. The film si d e r ed illegal, for example. The DMCA also in d u s t r y is invoking the DMCA to wage a civil tr umps the term limit that has always been lawsuit against a website that posted informa - pa r t of the copyright bargain because unlike tion about de-encrypting a DVD movie (even

46 Saving the Information Commons

though no copyright violation or sale of wh e r ever it may occur. For years, the accepted pirated material was alleged). The rec o rd i n g st a n d a r d for trademark protection had been in d u s t r y has invoked the DMCA to threaten a whether the questioned usage would cause Princeton professor with legal action if he pre- “confusion” with the trademarked name or sented a paper at a conference about the flaws pr oduct. But this reasonable standard was radi- in the music industry’ s encryption software. cally expanded by the federal Trademark Anti- The threat was successful and the paper has Dilution Act, a 1998 law that prohibits any use not yet been published. More legal action is of names that may “dilute” or “blur” the trade- su r e to follow. marked work. Furth e rm o r e, by applying this As the effects of the DMCA have become stricter standard only to brands already rec o g - cl e a r , public outrage has been building. The nized as “famous” (which is not legally El e c t r onic Frontier Foundation has been chal- defined), the law gives the most powerful mar- lenging the constitutionality of the DMCA, ket players a stronger level of protection than as s e r ting a violation of the First Amendment, all others, and thus a greater ability to stifle though any final court resolution could take uses of trademarked words that it dislikes. years. In the meantime, the Library of Con- The upshot is that a person can be held gr ess has formally determined that there is no liable for using someone else’s trademark even evidence that the DMCA is causing “substan- if the public is not deceived or confused as to tial harm” to the fair use rights of individuals. the source of goods or services. All that mat- This October 2000 ruling will be revisited by ters is that the distinctive quality of the trade- the Library of Congress in 2003. mark is “blurred” by the unauthorized usage, Some relief from the DMCA’s chokeholds th e r eby “tarnishing” the trademark’s value. may come if Rep. Rick Boucher (D-VA) suc- For example, many companies have used ceeds in his plans to introduce and enact a bill trademark claims to shut down websites that to eliminate the anti-circumvention clause of use their name in a disparaging way, as in the DMCA. The bill is likely to encounter “w a l m a r tsucks.com” and many other “sucks” st i f f opposition from the rec o r ding and film si t e s . 32 Other companies have gone after people industries. But as more consumers and musi- who use their product to make a cultural com- cians, scholars and scientists run up against the me n t a r y they reg a r d as insulting. Still other straightjacket imposed by the DMCA as they companies are claiming prop e r ty ownership in tr y to exercise their legitimate fair use rights, phrases, words or even single letters. the political calculus that has sanctioned Trademark law has allowed McDonalds to draconian copy-protection may change and claim ownership of 131 diffe r ent words and fo r ce new compromises. phrases, such as “Black History Makers of Tom o r row ,” “America’s Favorite Fries,” Af firm Free Speech over Tra d e m a r k Law “Healthy Growing Up,” “Play & Fun for Trademark law is commonly reg a r ded as an Ev e r yone” and “Hey It Could Happen.”33 ar cane backwater of the law, hardly deservi n g McDonalds has also been known to harass much attention. But increa s i n g l y , trademark st o r es and services that use the two letters law is being used to stamp out any unautho- “Mc.” In 1996, for example, its lawyers went rized uses of a company or product name, after a sandwich shop named “McMunchies”

47 Protect the Public Domain

in the English village of Fenny Stratford. ity and free expression. This impoverishes the The U.S. Olympic Commission now has a character of our culture and democratic life vi r tual hammerlock on the word “Olympics,” and restricts the flow of information in our enabling it to prohibit the use of the term so c i e t y . In subtle but profound ways, it also “Gay Olympics” by gay and lesbian athletes as s e r ts the supremacy of prop e r ty rights over while allowing athletes with disabilities to use basic civic rights. It is particularly alarmi n g the term “Special Olympics.” when trademark protections are used to sup- It is constitutionally pr ess consumer criticism or public debate It is constitutionally acceptable to burn an about corporate products or policies. American flag as a form One way to help arrest this trend is to rol l - ac c e p table to burn an of free speech, Prof e s s o r back the provisions of the Trademark Anti- James Boyle has noted, Dilution Act, which opened the floodgates for American flag as a for m but similar expres s i o n s many of the legal challenges now being of hostility toward the waged. It is also important to ref o r m the of free speech… b u t Golden Arches, Mickey pr ocess by which disputes between trademark Mouse, Mr. Clean or owners and Internet domain names are similar expressions of the Taco Bell Chi- resolved. Curren t l y , these disputes are huahua are likely to run resolved through a quasi-private Uniform Dis- hostility towar d the afoul of trademark law. pute Resolution Policy adopted by ICANN. Attempts to commod- This body, a nonprofit corporation charte re d Golden Arches, Mickey ify culture and commu- by the State of California, was created by the nications have rea c h e d U.S. Department of Commerce to manage Mouse, Mr. Clean or the such extremes that a technical aspects of the Interne t ’ s domain Ge r man publisher name system. It amounts to an outsourcing of Taco Bell Chihuahua are recently sued in the go v e r nment policymaking. Operating without U.S. to claim ownership the formal req u i r ements of due process and li ke l y to run afoul of of the letter “O.” It openness that any government body would seems that a high-gloss have to observe, ICANN has routinely favored tr a d e m a r k law. fashion magazine in trademark owners over domain name holders Ge r many named “O” in disputes over control of a domain name. believed that Oprah Win f re y ’ s magazine by The result, writes University of Miami Law the same name (or letter) was infringing on its Pr ofessor A. Michael Froomkin, are decisions trademark, competing unfairly and harming its that are often not technically expert, demo- reputation. In the same vein, the Wor l d cratic or fair.34 Restoring a balance between Wildlife Fund, an environmental group, pre- trademark law and the First Amendment will vailed against the World Wrestling Federation req u i r e that Congress confront the dubious in a British court in its attempt to “own” the constitutionality of ICANN and its own letters “WWF.” enactments in expanding the scope of trade- Amusing as such examples may seem, they mark protection. It will also req u i r e changes in rep r esent a worrisome trend in the use of the governance of ICANN, so that its mem- trademark law by corporations to stifle crea t i v - bership can be more open and inclusive. Also

48 Saving the Information Commons

needed are ref o r ms in the election of at-large a copyright and several license terms. The members and new accountability mechanisms license grants anyone the freedom to use, to ensure transparency and clear limits on modify and redistribute the software however IC A N N ’ s authority.35 they wish on the condition that the identical But the existing leadership of ICANN, par- license terms apply to any future distributions ticularly its executive director Stuart Lynn, has of the software. called for ref o r ms that move in the opposite By licensing their software with the GPL, di r ection. Lynn wants to abolish global elec- contributors to an online software community tions of ICANN rep r esentatives, limit public ar e assured that their creative effo r ts will pa r ticipation, give national governments and remain in the public domain, and not claimed corporations greater control over the body as private prop e r ty by a commercial software and enlarge the scope of ICANN res p o n s i b i l i - ma k e r . The GPL has become known as ties. The move has prompted many members “c o p y l e f t ” because it perfo r ms the opposite of Congress to call for hearings to rev i s i t function to copyright. The value implicit in IC A N N ’ s charter and perfo r mance. fr ee software programs licensed with the GPL is permanently established as a public asset or Pro m o te the General Public a “commons” from which anyone can benefit, License in Softwa r e but which no one can enclose and exploit for In the face of expanding intellectual prop e rt y their exclusive gain. rights, one important form of creative work, Over the past decade, the GPL has been open source and free software development, applied to many thousands of widely used relies on a wa i v e r of claims to intellectual free software programs. Strong incentives pro p e rt y . As described earlier in Part I, Sec- exist for software companies to take these tion C, the open source software rev o l u t i o n programs, hide the source code and sell them has improbably succeeded by bringing to clients, thereby violating the GPL. Several together a global corps of volunteers who companies have been discovered doing just collaboratively develop top-flight software for this but none have chosen to challenge the fr ee. Software developed in this manner has GPL in court. The enforcement of GPL’ed pr oven remarkably efficient and free of error s , software typically occurs through the Free pr ompting thousands of businesses and orga n - Software Foundation, which is often assigned izations around the globe to use such systems copyrights to GPL’ed free software by as the Linux operating system and the Apache authors. When authors discover misuse of Sendmail email program. their GPL’ed software, they report it to Eben The key to the success of this movement has Moglen, General Counsel for the Free Soft- been a licensing mechanism that ensures that ware Foundation and Professor of Law at fr ee and open source software prog r a m s Columbia University. He then contacts the remain non-prop r i e t a r y and open to modifica- company accused of the violation, explains tion. The Fr ee Software Foundation, led by the complaint and outlines how to comply M. I . T . programmer Richard Stallman, devised with the terms of the GPL, typically rem o v i n g a legal instrument known as the GNU Gen- proprietary claims to the product and pub- eral Public License, or GPL, which consists of lishing the source code.

49 Protect the Public Domain

Violations of GPL’ed software are peaceably GPL, means that it may eventually take over resolved dozens of times a year, according to the prop r i e t a r y software universe. Moglen. He says there is now a strong social This is a radical claim, but there is nonethe- taboo protecting GPL’ed work in the software less a growing recognition from the traditional in d u s t r y. Willfully violating a GPL would be so f t w a r e business community that the body of pe r ceived as an act of bad faith and would GP L ’ed software rep r esents a direct, long- mean losing elite programming staff and cus- te r m challenge to its traditional way of doing tomers. On a few occasions, Moglen has con- business. Some law firms for commercial soft- tacted the customers of some recalcitrant GPL wa r e companies recommend that their clients violators and explained that they’re paying a avoid any involvement with GPL’ed software, high price for a freely available piece of soft- lest it undermine future revenues from intel- wa r e, potentially exposing themselves to legal lectual prop e rt y . Several Microsoft spokespeo- complications. This has encouraged the com- ple, including vice president Craig Mundie, panies involved to comply with the GPL. have publicly decried the GPL as a “viral” Some lawyers see gray areas in the wording of th r eat to the vitality of the software industry, the GPL relating to derivative works and this or at least Micros o f t ’ s prop r i e t a r y strategies. may result in court challenges in the future. The point is that the GPL plays an exceed- Ho w e v e r , the successful track rec o r d of the ingly important role in allowing free software Fr ee Software Foundation in enforcing the and open source software to flourish, and in GPL for the past decade without litigation pr otecting the information commons. It suggests that the wording of the license is de s e r ves the utmost encouragement and generally sound. pr otection.

GPL and Two Uni ve r ses of Softwa r e Ex p l o r e GPL-l i k e Licenses in Other Media Ev e r y time the GPL is applied to a useful The GPL’s impressive role in software devel- piece of collaboratively developed code, it adds opment has prompted similar effo r ts to design to a permanent public commons in software. and propagate licenses to protect other types of Eben Moglen argues that the GPL crea t e s cre a t i v i t y . These effo r ts are still very new and “two universes” of software development. One experimental, but in their ambitions to emulate is comprised of teams of commercial prog r a m - the GPL, they deserve further exploration. mers working behind closed doors to generate One of the most ambitious licensing so f t w a r e commodities closely guarded by schemes, the Cr eative Commons, is being copyright. The second universe is defined by devised by Stanford Law Professor Lawren c e bottom-up, peer production to create free Lessig and other legal scholars at Harva rd , so f t w a r e in the public domain. M. I . T ., Duke and Villanova. This project plans The GPL ensures the sustainability of the to offer a variety of customizable licenses that fr ee software development universe by pro- will enable artists to specify how they wish to tecting its voluntary, collaborative proc e s s e s allow their works to be used. The goal is to fr om the privatizing powers of copyright. In ca r ve out a new legal middle ground between fact, Moglen believes that the efficiency of free full copyright protection, which allows only so f t w a r e production, as facilitated by the modest and irregularly applied “fair uses,” and

50 Saving the Information Commons

un p r otected public domain works, which can placed in the conserva n c y , for example, allow- be used without any restrictions. Under free l y ing their continued use by others; arti f i c i a l available licenses crafted by the Creative Com- copyright restrictions and market barri e r s mons, for example, authors could choose need not consign old works to oblivion. licenses that allow their works to be freely used By establishing clear licensing terms for so long as they are not altered, used without pro p e r ty that is now either “bottled up” by attribution or used for commercial purposes. strict copyright protection or available only Hybrid licenses that combine non-commer- th r ough costly and inflexible licensing and cial and commercial uses may be offe r ed as rights-clearance regimes, the Creative Com- well. As Lessig explains, an artist may want to mons wants to develop the legal foundation allow a work to be freely used without pay- that can catalyze a robust commons in infor- ment so long as no one is making money on it, mation and creative works. A clear, rel i a b l e but may want to trigger a sliding scale of pay- and enduring system of voluntary licensing ments if the work is sold. Still other legal tem- is an ingenious way to enrich the flow and plates may be offe r ed as the needs and desires variety of creative works in our society, to of the creative community evolve. the benefit of nonprofit and commercial An innovative aspect of the Creative Com- players alike. mons licenses is the use of “metatags” to help Some other novel licensing schemes based In t e r net users locate and use public domain on the GPL have been recently launched. The material. Coded, machine-readable “tags” in El e c t r onic Frontier Foundation, an advo- digital works will allow future users of a given cacy group for the computer community, work to search the Internet more easily for announced in April 2001 the “Open Audio public domain works. Users will be able to License” (OAL) for music in digital forma t s . quickly learn the identity of the rights holder This has been followed by the establishment and specific licensing conditions for usage. The of a fledgling clearinghouse website, Open goal is to facilitate cheap and efficient rights Music Registry, for OAL music of all styles. In clearances, which are now a costly and often- another initiative, French visual artists crea t e d pr ohibitive aspect of new creative proj e c t s , the “Arts Libre” or “Free Art” license for digi- especially in film and music. If new films and tal imagery. The “Open Content License” and MP3 songs were to contain metatags, for exam- the “Design Science License” were drafted as ple, film students seeking to use public domain all-purpose licenses that could place any type works could more easily find them and use of creative work in the public domain. them in their own creations: a huge boon to This is not an exhaustive list; there is a fu t u r e creativity and the information commons. gr owing number of open license options avail- Based on the concept of a land trust, the able on the Internet for creators. But because Cr eative Commons also aspires to build a so f t w a r e development on the Internet has “c o n s e r vancy” for intellectual prop e r ty that been occurring longer than in other crea t i v e can be pres e r ved and shared without the ar eas, none of these licenses is yet as widely impediments of conventional copyright pro- used as the GPL. tection. Obsolete software programs that the The common motivation for these new original makers had abandoned could be licenses is to permanently place original works

51 Protect the Public Domain

in the public domain while ensuring that visual art can be modified through collabora- cr eators are properly credited. Licensed works tion, their value is more subjective. This dis- can be freely enjoyed in their original forms or tinction matters because opening software code readily incorporated into new collaborative to public use, scrutiny and collaboration (as pr ojects so long as they remain freely usable, enabled by the GPL) brings valuable effi c i e n - modifiable and distributable. In essence, cre- cies. This benefit does not emerge in the same, ators who employ the licenses are rejecting the di r ect ways from sharing music, film or other closed model of production governed by copy- aesthetic works. For this reason, the economic right and joining Eben Moglen’s second uni- incentives to utilize GPL-style licensing out- verse of open source, creative work. side software may be less compelling. How widely the OAL, Free Art license and Still, numerous non-economic factors do their cohorts are employed in the future will enter into the process of making, distributing depend to some extent on the cost-benefit cal- and consuming creative work. A great deal of culation that creators and their distributors such work is produced by people driven by must make. Are the benefits of creating work al t r uistic, cultural or civic motivations, includ- collaboratively in the public domain large ing works produced by nonprofits or subsi- enough to justify giving up the compensatory dized by charitable grants, that were never mechanism of copyright? intended to be commercial or prop r i e t a r y. For So f t w a r e differs from many other types of these authors and artists, GPL-style licensing copyrighted work in the sense that it is a utili- may prove to be extremely compelling. While tarian object. One software program can be this issue will be an area of ongoing debate, the co m p a r ed to another on the basis of how well availability of open licensing arrangements for it perfo r ms a particular function; one type of individual creators is an important experiment code can be measurably better than another. that deserves to continue. It may stimulate new By contrast, while a book, song or piece of ideas for strengthening the public domain.

52 IV. Fortify the Information Commons: Adopt Innovative Policy Initiatives

e have seen in Parts II and III how a robust information commons re q u i res an open infrastru c t u re and strict limits on copyright pro t e c- Wtion. But there are also a number of govern m e n t - s p o n s o red pro g r a m s and initiatives that could do a great deal to protect and fortify the inform a t i o n commons. Just as markets need government leadership and intervention to work properly (by defining market boundaries, requiring fair transactions and d i s c l o s u res, enforcing laws, promoting trade, etc.), so the commons needs and d e s e rves similar sorts of government leadership and support. The following proposals are justified by a simple fact: the American people ow n ce r tain common assets and as the trustee of those assets, the government is obliged to manage them conscientiously for the public benefit. The governm e n t is also charged with promoting the general welfare of its citizens, which is not necessarily synonymous with promoting market activity. The general, non-com- me r cial interests of the American citizenry—as learners, creators, civic parti c i - pants, community members and so on—have their own sovereign standing. After its long exile by its sibling, the market, the co m m o n ds e s e r ves its own place at the public policy table. This section offers some fresh thinking about how government policies can advance the commons in digital media. As new and somewhat unorth o d o x ap p r oaches, the very unfamiliarity of these proposals may raise questions in some pe o p l e ’ s minds. But that is the nature of innovation itself: any new idea cannot answer all questions and contingencies at the outset, nor can it be judged solely by the parochial terms of existing policy. It should be judged by the larger values and

53 Fortify the Information Commons

principles that we wish to protect and advance, In the 1960s and 1970s, this arra n g e m e n t and by the new technological and cultural was sufficient to induce broadcasters to pro- context of our times. If the high-tech future is duce respectable amounts of quality children ’ s chiefly about innovation, then governm e n t pr ogramming, news documentaries and local policymaking must be innovative as well, seek- public affairs programming. In addition, the ing to re-embody certain core values of public public had nominal access to the airwa v e s purpose as new circumstances demand. th r ough the Fairness Doctrine, which req u i re d br oadcasters to cover “controversial issues of Earning a Fair Return on Our Airwaves public importance” and to allow opposing If the American people actually own the air- views to be heard. The public interest stan- waves that are used by broadcasters for such da r d also req u i r ed broadcasters to serve com- lucrative ends, why then does the public rea p munities responsively; to allow candidates for so little in ret u r n? federal office to buy airtime at the lowest rate The answer to that question lies in the statu- off e r ed to a station’s other advertisers; to to r y “deal” that gave rise to commercial broa d - document how they were serving the public casting some 68 years ago, known as the Com- in t e r est; and to ascertain the needs of communi- munications Act of 1934. The original idea ties that could be served by local broa d c a s t i n g . behind the Act was that broadcasters would If this modest set of public obligations se r ve as “public trustees” of the airwa v e s worked reasonably well in the context of a (enlightened hosts of the broadcasting com- network oligopoly in broadcasting, it has mons). Rather than give educators, orga n i z e d become far less feasible in the media free - f o r - la b o r , religious groups and other constituencies all of the 1980s and beyond. The political tide any direct ongoing control of the airwaves, a against the PIO regulations shifted in the ba r gain was struck. Commercial licensees 1980s as broadcast TV began to compete with would receive free use of the airwaves in ret u r n cable TV, raising questions about why one for meeting certain standards of public servi c e . should be regulated but the other not. The And the public would reap its gains from go v e r nment also faced enormous practical dif- licensees who were charged with acting as ficulties in enforcing compliance with non- public trus t e e s . quantitative mandates. There are obvious First That, at least, was the ostensible rationale Amendment problems when governm e n t for the “public interest standard.” The Com- begins to judge “quality” programming and munications Act authorizes the FCC to allo- responsive community service. Yet applying cate frequencies to various services and to neutral, formulaic approaches (such as req u i r - grant temporary licenses consistent with “the ing a station to air x hours of educational pro- public interest, convenience and necessity.” gramming for children) is not necessarily But this broad standard has always been ef fective either, particularly if the station (or exceedingly vague, loosely interpreted and chain of stations) is determined to resist its ra r ely enforced. A handful of “public interes t public interest obligations. obligations” (PIOs) have sometimes been For example, after the Children ’ s Tel e v i s i o n st a t u t o r y, while most others have been FCC Act of 1990 req u i r ed broadcasters to air an regulations or guidelines. unspecified amount of “educational and infor-

54 Saving the Information Commons

mational” programming, a well-known study known as HDTV. It is now six years later and by the nonprofit Center for Media Education it appears that a full conversion to digital tele- documented that stations were counting car- vision will not be consummated for many toons like The Jetsonsand The Flintstonesas years and that the free “loan” will extend educational programming for license ren e w a l in d e f i n i t e l y . The estimated market value of purposes. After a three-year process, the FCC sp e c t r um now controlled by broa d c a s t e r s — finally spelled out a minimum req u i r ement of essentially an unacknowledged hidden subsidy th r ee hours per weekof “core educational pro- for commercial broadcasting—is now well in gramming.” The three-hour rule, which took excess of $300 billion.37 ef fect in the fall of 1997, has led to some It is now clear that what may have been tol- im p r ovement, but it seems clear that with few erable in another era—free and exclusive spec- exceptions broadcasters are not really commit- tr um licenses in broadcasting—is now gros s l y ted to the spirit of the FCC reg u l a t i o n s . in e f ficient and inequitable. When the Reagan administration lifted The FCC’s outdated It is now clear tha t station ownership limits in the 1980s, it was zoning and giveaway influential in transforming broadcasting from a policy has produced the what may have been locally oriented business into a gigantic multi- worst possible outcome: national enterprise. Broadcast stations became sp e c t r um management tolerable in another era— far less inclined to produce local prog r a m m i n g that is grossly ineffi c i e n t or public service campaigns, a tendency rei n - and inequitable to both fr ee and excl u s i v e fo r ced by the repeal of rules that gave pref e r - in d u s t r y and the public ential treatment to local applicants for broa d - that owns the airwa v e s . sp e c t r um licenses in cast licenses. “For 61 years, the FCC has The policy also discrim- acquiesced in an incoherent compromise with inates against the wire- br oadcasting—is now television broadcasters,” Reed Hundt observe d less industry, which pays in 1995, during his tenure as chairman of the billions of dollars for its gros s l y inefficient and FCC. “The rules it has adopted to implement licenses to the airwa v e s the public interest mandate are vague to the while adhering to the in e qu i ta b l e . point of meaninglessness.”36 st a t u t o r y mandate to oper- In any case, with the help of the Reagan and ate in the “public interest, convenience and the first Bush administrations and the ne c e s s i t y .” Free licenses also distort the televi- Telecommunications Act of 1996, broa d c a s t e r s sion marketplace by giving some competitors a finally shed their most significant PIO obliga- fr ee asset for signal distribution (broa d c a s t e r s ) tions. But their free use of the public’s air- while denying it to others (cable TV, direc t - waves—a valuable 6 MHz slice worth bil- br oadcast satellite TV). Finally, free licenses lions—continued. Then it got worse. In 1996, and the elimination of PIOs cheat the Ameri- the broadcast industry convinced Congress to can public, the owners of the airwaves, out of give it a short- t e r m “loan” of another 6 MHz a fair ret u r n on their asset. of spectrum for free—to facilitate the transi- One might wonder how such a costly, irra - tion from analog to a more versatile, higher- tional and unfair policy anachronism has sur- resolution digital broadcast signal commonly vived so long. The answer has a lot to do with

55 Fortify the Information Commons

the broadcast industry’ s considerable political Instead of trying to force broadcasters, via po w e r . It has given generously to congres s i o n a l PIO obligations, to behave in ways they per- and presidential campaigns, and it has managed ceive undercut their commercial interests (and news coverage of issues affecting it in self-serv- which they stoutly resist), it makes a great deal ing ways.38 Br oadcasters also play a critical rol e of sense in today’s media environment to liqui- in how politicians are portrayed to the voting date this obligation: reap the benefit in cash public, a power that tends to make politicians and use it to finance public benefits more highly solicitous of broadcasting interests. di re c t l y . Based on $25.6 billion in adverti s i n g In today’s media technology environment, a revenues of commercial TV stations in 2000 ret u r n to the former FCC reg u l a t o r y reg i m e (national and local spot ads), Geller figures for broadcasting is impractical and undesirable. that the 5 percent usage fee would generate Yet a failure to institute an alternative reg i m e $1.28 billion in annual revenues to taxpayers. for recouping a public benefit from the public’s How might the 5 percent spectrum fee, or ai r waves is indefensible. The issue at hand is $1.28 billion, be used to benefit the public? wh a t so r t of policy scheme could work best. Geller offers a few ideas: “The Public Broa d - He n r y Geller, a former general counsel of casting System req u i r es approximately $280 the FCC, has proposed a fair and practical million, or 20 percent of [the $1.28 billion], to al t e r native to “public trusteeship”: a usage fee fully implement its expansive and much that all broadcasters would have to pay. Instead needed educational plans in the digital era,” he of having to meet specified PIOs as the “in- writes. Geller sees this money being used to kind” cost of their licenses—a legal fiction that su p p o r t pre-school (“rea d y - t o - l e a r n”) educa- gives the public virtually nothing—broa d c a s t - tional programming, programs for the school- ers would pay a spectrum usage fee of 5 per- aged child (6-11 years old) and other pro- cent of their gross advertising rev e n u e s . 39 gramming for adults, literacy education, job This is entirely consistent with the business training and technology training for teachers. costs and reg u l a t o r y practices in other indus- The remainder of the sum could be used to tries. Most cities and towns charge cable com- fund perennially underfunded public television panies 5 percent for using the public right-of- missions, such as culture, the arts, drama and way in city streets. Congress levies the same in-depth informational programming. pe r centage on broadcasters who offer “ancil- The New America Foundation has taken la r y services” (services other than non-sub- Ge l l e r ’ s approach a step furth e r , advocating a scription video broadcasting) via the extra ne w , more coherent national spectrum policy sp e c t r um they received under the Tel e c o m m u - that is premised on the public’s inalienable nications Act of 1996. If wireless businesses ownership of the airwaves, but that also pro- have to pay billions to win auctions in order to motes efficient allocation and a level playing use the public’s airwaves; if newspapers have to field between industries and companies com- pay for their newsprint; if valuable capital peting to use scarce frequencies. Michael assets are to be efficiently allocated in the Ca l a b r ese, Director of New America’s Public marketplace; then why shouldn’t broa d c a s t e r s Assets Program, is advocating spectrum have to pay the American people for their use ref o r m that embraces the more flexible and of the public’s spectrum ? market-based allocation policies sought by

56 Saving the Information Commons

most high-tech industries, while opposing the Assuming that new monies could be collected pe r manent “prop e r tizing” of the airwa v e s th r ough an auction of the spectrum or a flat advocated by conservative think tanks.40 sp e c t r um usage fee, the DOIT would act as a New America’s initiative rep r esents a synthe- co n g r essionally charte r ed fund to finance a sis combining three critical elements of pro- wide variety of non-commercial prog r a m m i n g . moting a digital information commons. First, Minow and Grossman envision an initial Co n g r ess should replace its inefficient policy of endowment on the order of $18 billion, the rigidly “zoning” the spectrum with a more flex- sum that the Congressional Budget Office esti- ible, market-based approach. Second, all com- mates that the FCC’s spectrum auctions will me r cial users should pay for licensing spectrum yield over the next few years. and the revenue should be reinvested in new As now envisioned, the Trust would be public assets that fortify the non-commerci a l ad m i n i s t e r ed by a board comprised of private po r tion of our educational and civic infrastruc - citizens from all walks of life, who would make tu r e. (The Digital Opportunity Trust and New strategic, long-term decisions about how to Voices Initiative described in Sections B and C, su p p o r t educational, creative, cultural, civic res p e c t i v e l y , provide good examples of how and other public service institutions. In struc - Co n g r ess could earmark revenue from this tu r e, the Trust is envisioned as a kind of public asset to invest in revitalizing the public National Science Foundation or National in f o r mation commons.) Finally, a substantial Institutes of Health: a respected national insti- new allocation of “unlicensed” spectrum should tution comprised of distinguished leaders and be set aside to encourage “wireless community ex p e r ts from diverse fields of endeavor. While networks.” This approach would promote both the Trust would not be a government agency, inexpensive wireless Internet connections and, it would be accountable to Congress. as described in Section D, “open spectrum ” The Trus t ’ s board would choose the specific that allows unmediated access to the airwa v e s funding priorities, supervise the application by citizens using ultrawideband and “smart and grant-making process and set res e a rc h radio” technologies. goals. In Minow and Gros s m a n ’ s words, the Trust would finance “innovation, experimenta- The Digital Opportunity Inves tment Trus t tion and res e a r ch in utilizing new telecommu- One bold idea for developing public interes t nications technologies across the widest possi- content for broadcasting in new ways is the ble range of public purposes.” In practice, the Digital Opportunity Investment Trus t Trust would fund new kinds of educational (DOIT), an idea hatched by Lawrence Gros s - materials and instruction; job training, lifelong man, former President of NBC News and the le a r ning modules and online learning; new Public Broadcasting Service, and Newton bodies of civic and community informa t i o n ; Mi n o w , the former FCC Chairman under and programs to support the arts and culture. Pr esident Kennedy. Two years ago, Gros s m a n Minow and Grossman compare the idea of and Minow started the Digital Promise Pro- the Trust to other innovative public invest- ject (www.d i g i t a l p r omise. com) to prom o t e ments that the federal government has insti- this trust fund idea. gated in the past: the Northwest Ordinance of 1787 that set aside public land to support

57 Fortify the Information Commons

public schools in every new state; the Morri l l The New Voices Initiative Act of 1862 which helped establish dozens of Going beyond public interest television pro- land grant colleges, many of which have since gramming, what would a public interest trus t become world-class universities; and the GI fund for the Interne t look like? Reed Hundt, Bill of 1944, which helped make higher educa- the FCC Chairman under President Clinton, tion more accessible to the average American. has proposed the New Voices Initiative. This The Digital Opportunity Investment Trus t novel proposal seeks to channel a significant as p i r es to be a new tool by which Americans pe r centage of revenues from spectrum auc- le a r n, participate in their communities, engage tions (or straight user fees) to finance public in political life, create works of art and culture in t e r est projects on the Internet. The monies and meet other important social needs. would serve as a new type of venture capital Like any new idea, the Digital Opportu n i t y fund for non-commercial, public-spirited Investment Trust raises questions in some peo- innovations on the Interne t . pl e ’ s minds: How can it be struc t u r ed to pre- Unlike the Digital Opportunity Investment vent politicization? Would its projects be able Trust, the New Voices Initiative would not to find a distribution outlet in today’s crow d e d allocate funds to specific types of content or television marketplace? How would the board pr ojects. In explaining this departu r e, Hundt be selected to ensure that it is rep re s e n t a t i v e points out that an important lesson of the and responsive? While Grossman has specific In t e r net is the unpredictability of bottom-up ideas for dealing with such issues, he has said innovation. History has shown that it is that many issues relating to the Trust have been exceedingly difficult to predict what sorts of deliberately kept open to allow members of content will prove interesting, useful or Co n g r ess to put forwa r d their own proposals. gro u n d b r eaking. The “experts” may or may A fuller treatment of the idea is set forth in not have the best insights or talent, he notes, Gr ossman and Minow’s book, A Digital Gift to citing the dynamics of open source software the Nation(C e n t u r y Foundation Press, 2001). development and the thousands of valuable By March 2002, legislation under the title, no n - c o m m e r cial websites that exist. There is The Digital Opportunity Investment Trust Act, no compelling reason to believe that a cadre of had been drafted by Sen. Chris Dodd with sup- cr edentialed, politically connected movers and po r t from a bipartisan group of Senators. Rep. shakers would necessarily do better than a new Ed w a r d Markey drafted similar legislation last mechanism designed to foster innovative ideas year that would have earmarked spectrum rev - originating at the grassroots. enue for a digital investment trust. Senior The challenge, Hundt believes, is to devise a members of the Senate and House have also funding apparatus that can seed new proj e c t s asked the National Science Board to underta k e without being overly prescriptive or judg- a study and rep o r t back to Congress this year mental. Yet because public monies would be on the feasibility and potential administrative involved in this project, there must be certa i n st ru c t u r e of DOIT. Once the National Science basic standards of eligibility and oversight to Bo a r d submits its rep o r t, the Senate Commerce pr event waste and fraud. Hundt’s idea is to Committee plans hearings later in this session disperse funds to grant applicants through a of Congress, according to the bill’s supporte r s . lo t t e r y process or through a first-come, first-

58 Saving the Information Commons

se r ve arrangement. As Hundt told a confer- major philosophical divide separating the mass ence of the Aspen Institute’s Communications media, especially television, from the Interne t . and Society Program in 2001: “There would The Internet has an intrinsically diffe re n t be no distinguished group of peer rev i e w e r s , pr ocess than television for warranting what is ad v i s o r y committees or boards of direc t o r s wo r thwhile. The Internet supports an open, deciding which proposal is more meritorious bottom-up system for affi r ming the value of than another. There would be no vetting cr eativity and informa - whatsoever as to the wisdom of an idea or the tion. By contrast, “qual- The Inter n e t supports an na t u r e of the content, beyond the meeting of ity” and “credibility” in ce r tain basic eligibility standards . ” the mass media are gen- open, bottom-up syste m To ensure that funds are not abused or used erally reg a r ded as func- for commercial purposes, Hundt proposes the tions of prof e s s i o n a l for affirming the value of following basic rul e s : ex p e r tise, prod u c t i o n values and marketing. cr eativity and ❚ All projects must raise matching funds from To some people, it is outside sources to validate the existence of ir responsible to fund in f ormation. By contrast, br oader support for the idea. In t e r net projects with- ❚ Grant recipients cannot license or merch a n - out making ref i n e d “q uality” and “cred i b i l i t y ” dise their works for profit, or create any- judgments about their thing that results in advertiser support of qu a l i t y , especially when in the mass media are any kind. public monies are ❚ Recipients cannot charge a subscription fee involved. But to many gen e r a l l y rega r ded as for anything that they crea t e . In t e r net champions, the ❚ All projects funded by the New Voices Ini- ve r dict of vox populi, functions of prof e s s i o n a l tiative have to be made freely available on ar rived at through trans- the Internet. If any grant recipient does pa r ent scrutiny of multi- ex p e r tise, prod u c t i o n co m m e r cialize their work under a New ple possibilities, is the Voices grant, then their grant monies would most reliable way to values and marketi n g . have to be ret u rn e d . generate “quality.” In any case, projects that receive money Hundt told the Aspen conference that he had under the New Voices Initiative would have two key motivations for making such a bold and to satisfy certain basic criteria, including out- di ff e r ent proposal: “First, this effo r t should be side funding commitments. Thus certa i n about the next generation of media and not the th r esholds of quality and perfo r mance would pr evious generation. Second, this project should have to be met. In addition, Internet champi- take account of the distinctive attributes of the ons point out that on the Web, high prod u c - In t e r net, because the Internet is a medium that tion standards, heavy marketing and cred e n - is diffe r ent from all previous media.” tialed expertise are no assurance of genuine To traditionalists, the refusal of the New qu a l i t y . Indeed, in many instances high-tech Voices Initiative to select “the best” projects is bells and whistles serve only to mask sub- di s c o n c e r ting. But Hundt believes this is a st a n d a r d content.

59 Fortify the Information Commons

While a novel proposal such as the New and financial considerations (so-called “beauty Voices Initiative may not be immediately contests”). More rec e n t l y , auctions have been embraced and may need modifications to make staged to allocate licenses among mobile tele- it politically palatable to a Congress that is not phone operators, raising more than $20 billion renowned for being daring or Internet savvy, it in revenue for the federal trea s u r y in the is a provocative idea that deserves furth e r pr ocess. exploration. Its chief virtue is providing a feasi- But innovations in transmitter and rec e i v e r ble, adequately funded way to nurtu r e innova- technology now offer an intriguing new way tive public interest content in the digital age. of solving the spectrum allocation prob l e m . New “intelligent” devices can enable multiple The Open Spectrum Proj e c t users to transmit and receive information over Although the radio frequency spectrum has the same part of the airwaves without crea t i n g long been a pillar of the nation’s informa t i o n in t e rf e r ence problems. The devices employ in f r a s t ru c t u r e, this role could become even what are known as “spread spectrum” tech- mo r e important as advances in technology niques. Another technology, dubbed ultra- enable two-way communication using spec- wideband (UWB), allows data signals to be tr um. In the near future, the airwaves could sent in pulses across the spectrum, without fo r m the backbone of a vast wireless in t e r fering with other users. mediascape with content flowing back and forth Hu n d r eds of entrep r eneurs, community among individuals, media organizations, educa- gr oups and do-it-yourselfers are already using tional institutions, businesses and governm e n t s . sp r ead spectrum techniques in the narrow The policy decisions made about this res o u rc e pockets of airwaves that have been designated today will have far-r eaching implications for the as “unlicensed” (that is, shared) to deliver serv- character of our media environment, not to ices like wireless Internet connections and mention the future of science, business, educa- wi r eless networking. More than 4,000 wirel e s s tion and democratic culture. In t e r net access zones are now in operation in Tra d i t i o n a l l y , the central problem facing ai r p o r ts, cafes, university cafes and other such policymakers has been how to allocate slices of venues, using unlicensed spectrum. the airwaves among various competing users. Most of these services follow a technical In order to prevent transmissions from inter- st a n d a r d known as “wireless fidelity,” or WiF i , fering with one another, a single user—a radio which was developed cooperatively by the station or mobile phone company, for exam- Institute of Electrical and Electronic Engi- ple—had to be granted a license to transmit neers. Using a wireless modem card tuned to over a specific frequency at a specific geo- the WiFi 802.11b standard, dozens of users graphic location. Policy debates on spectrum can connect wirelessly to the Internet by shar- management have theref o r e centered upon the ing a single wireline (cable or T1) connection pr os and cons of allocation methodologies for at broadband speeds over a range of arou n d licenses to spectrum . 400 feet. Since the base stations used to Until the mid-1990s, the Federal Commu- br oadcast the Internet connection cost as little nications Commission assigned licenses at no as $300, the primary cost is leasing a high- cost and on the basis of industry submissions speed wireline connection to the Interne t .

60 Saving the Information Commons

Dewayne Hendricks, an Open Spectrum sumer choice, and in parti c u l a r , the ability to activist who is building a wireless community bypass the big commercial Internet servi c e network for the Tur tle Mountain Chippewa pr oviders that will soon control the terms of Re s e r vation in Belcourt, N.D., notes that by In t e r net access based on subscriptions to pro- leasing a T1 Internet connection and stringing pr i e t a r y cable, DSL and wireless phone com- up some repeater nodes on buildings, he can pany networks. As discussed in Part II, the “act as my own ISP and redistribute band- local cable and telephone monopolies have width [wirelessly] without res t r i c t i o n s . ” 41 ev e r y incentive to attach restrictive commer- In practical terms, the technological and cial conditions to their broadband services and economic limits that have historically req u i re d to shape the way their customers access and the demarcation of specific frequencies as the experience the Internet. Instead of offering an exclusive domain of license holders are fast dis- open Internet—with no filtering or blocking appearing. It is no longer necessary to divide of content or applications flowing from one the entire spectrum into exclusive, prop r i e t a r y end-user to the next—the Internet could be units of control. Sharing spectrum as a license- modified to have the arch i t e c t u r e of cable tele- fr ee, open commons res o u r ce is now a vision: a closed, completely controlled content feasible alternative management approa c h . 42 marketplace. In an era of consolidation and As emerging technologies permit both more “facilities based competition,” these companies ef ficient reuse of spectrum and more demo- would act as permanently entrenched “gate- cratic access to the airwaves, the FCC should keepers” by virtue of their control over consider greatly increasing allocations of millions of users’ first point of access. unlicensed spectrum in addition to its curren t By contrast, unlicensed spectrum provides a focus on freeing up spectrum for prop r i e t a r y space where local entrep r eneurs, community telephone company networks. gr oups and individual citizens can establish For many scholars, the prospect of an their own local wireless networks—whether for unlicensed spectrum commons has substantial a fee or for free. This would ensure variations and very welcome implications. The most of two-way communication and unmediated immediate benefit, already happening, is more In t e r net access that are now threatened on the wi d e s p r ead access to high-speed and mobile co m m e r cial cable and telephone infrastruc t u re . In t e r net connections at costs low enough to A spectrum commons could provide a new make a dent in the digital divide. In London, pl a t f o r m for fresh competition and help for example, a wireless community networking reverse the rising tide of corporate concentra- eff o r t called Consume has already extended tion in television broadcasting, film studios, fr ee broadband connections using 400 nodes to cable TV, book publishing and telecommuni- an area containing 5,000 potential users.43 Th e cations. As we saw in Part II, Section D, this ability to access the Internet at broa d b a n d concentration has increased significantly over speeds without waiting for cable and/or phone the past decade, and is expected to continue. If companies to build wired connections to the left unaddressed, a handful of giant media cor- home, is particularly important in rural area s . porations, by controlling key communications A second potential benefit of unlicensed conduits, could wield enormous power over wi r eless networks is competition and con- the character, tone and focus of public life in

61 Fortify the Information Commons

the United States. There is no reason that fed- Now that a license-free management of spec- eral spectrum management policies should tr um is technically possible, there is a consti- facilitate this trend. tutional imperative to do away with licenses Instituting a license-free approach to govern- because government has no legitimate role in ing parts of the airwaves would move us away impeding individuals’ freedom of expres s i o n . fr om this potentially stifling centralization of Only very small bands of spectrum are unli- media to a more open, accessible and decentral- censed at present and their utilization has been ized regime. In a spec- limited to a large degree by influential incum- Instituting a license- tr um commons, an indi- bent license-holders, such as TV broa d c a s t e r s vidual or grou p ’ s capacity and the military. If a large r , more fully rea l i z e d fr ee approa c h to to transmit informa t i o n sp e c t r um commons is to develop, importa n t would be determined by policy questions need to be answered: How go verning parts of the a set of universal stan- can the necessary standards for transmissions da r ds embedded in the equipment built by equipment manufacturer s ai r waves would move us transmitting equipment be established? How can signal congestion at rather than by the own- peak usage times be resolved? And, how can away from thi s ers of licenses of parti c u - violations of standards be policed? lar frequency bands. The In order to answer these questions, Prof e s - po ten t i a l l y stifli n g result would be a more sor Benkler has founded an initiative called the diverse set of users, Open Spectrum Proj e c t to work on ref i n i n g centralization of media gr eater diversity of infor- the ideal reg u l a t o r y framework for a commons mation flow and more of the airwaves. It is a collaborative res e a rc h to a more open, vibrant public dialogue. endeavor involving leading experts from com- For some legal schol- puter science, economics and communications accessible and ar s — Y ochai Benkler, la w . The project seeks to define in practical Pr ofessor of Law at te r ms the best set of policies for governi n g decentralized regime. New York University is li c e n s e - f r ee spectrum, given the evolving state the most prom i n e n t of relevant technologies. among them—the move towards license-free Critics of the license-free spectrum com- sp e c t r um management is actually req u i r ed by mons model such as Thomas Hazlett, a Senior the First Amendment of the U.S. Constitu- Fellow at the Manhattan Institute, have argu e d tion. In their view, spectrum rep r esents a core that government mismanagement of these element of the public communications infra- issues is unavoidable and will lead to an ineffi - st ru c t u r e, and is inextricably implicated in cient and anti-competitive regime. Hazlett First Amendment principles. Thus, for the advocates full privatization of the spectrum . go v e r nment to use a licensing regime that Ho w e v e r , participants in the Open Spectrum excludes individuals from transmitting in spec- Pr oject, such as David Reed, former chief sci- tr um is only permissible constitutionally if it is entist at Lotus, counter with prel i m i n a r y ne c e s s a r y in a technical sense. This has been res e a r ch that shows that a well-designed coop- the historic rationale for exclusive licenses, but erative arch i t e c t u r e involving a large number this technical predicate is no longer valid. of users could actually increase the total infor-

62 Saving the Information Commons

mation transmitting capacity of a given block has occurred since then. A small number of of spectrum. Reed argues that closing off companies have used UPCS to offer advanced op p o r tunities for spectrum sharing will stifle co r dless telephone systems to hospitals and the technological experimentation necessary to stock exchanges. In an August 2001 Notice of take advantage of these efficiency gains. Pr oposed Rulemaking, the FCC indicated that it Attempts to foster spectrum commons in was considering shutting down the UPCS spec- the past have been stifled by poor reg u l a t i o n . tr um commons due to “underuse”; it planned In 1995, seeking to open up more spectrum , to reallocate the spectrum to the telecom indus- the Apple computer company asked the Fed- tr y through exclusive private license auctions. eral Communications Commission to desig- The Open Spectrum Project is working to nate a 30 MHz band labeled Unlicensed Per- pr esent alternatives to the restrictive reg u l a - sonal Communication Service (UPCS) as un l i - tions that have contributed to the stifling of ce n s e d . In their submissions to the FCC, Apple the UPCS commons. Project leaders seek to and other PC makers argued that they wanted pr esent a compelling case for more extensive to create what would essentially be a public li c e n s e - f r ee management of the airwaves, so park in the airwaves, a free space for which that access to the wireless mediascape of the they could build wireless networking applica- coming decades is not conditioned upon the tions to connect people. decisions of a few license-holding infrastruc - But the frequencies that the FCC selected tu r e proprietors. They envisage a radio spec- for UPCS were already encumbered by a small tr um that is open to the transmissions of many number of existing users, including sheriff’s ord i n a r y users and flexible enough to accom- de p a r tments and the oil industry. The FCC modate the ideas of technology innovators. stipulated that these users had to be compen- This model will involve some form of traffi c sated to the tune of $70 million for surren d e r - management scheme to ensure that spectrum ing their spectrum. An agreement could not commons bandwidths do not become con- be reached among potential users of the new gested through overexploitation. For users of unlicensed bandwidth, so in response, the FCC the UPCS bandwidth, a flexible spectrum “eti- authorized the creation of a de factoli c e n s i n g quette” was developed; the Open Spectrum body called UTAM. This body imposed a $20 Pr oject is working to refine this beginning fee on every device using the UPCS bandwidth into a new set of standards and rul e s . in order to raise the req u i r ed $70 million com- pensation. UTAM also banned the use of Managing Government nomadic devices until the entire spectrum In f ormation as If Citizens Mattered could be cleared of incumbent users. Among the numerous sources of informa t i o n Telecom industry lobbyists were influential in in America’s public discourse, the most prol i f i c the design of these regulations and they were and arguably the most critical is the U.S. Gov- ex t r emely disadvantageous to Apple and the er nment. Congress generates thousands of other PC companies. The rules essentially cre- authoritative rep o r ts and hearing rec o r ds each ated enough barriers to discourage them from ye a r . Federally funded bodies such as the using the UPCS spectrum commons. Not sur- National Science Foundation sponsor cutting- pr i s i n g l y , little experimentation using the band edge scientific res e a r ch in dozens of fields.

63 Fortify the Information Commons

Federal government agencies compile prod i - The Brown University rep o r t also found a gious databases in a vast array of importa n t general failure among federal governm e n t ar eas including food and drug safety, environ - bodies to take advantage of interactive features mental and weather conditions, financial and of the Web. At many commercial websites, labor markets and demographics. Tens of bil- sm a r t design features allow users to search for lions of tax dollars are invested in these cruc i a l in f o r mation or navigate the website in highly in f o r mation res o u r ces each year. ef ficient ways. These features have yet to be In t e r net technology offers an historically adopted among government sites. un p r ecedented opportunity to make the full Th e r e are a variety of reasons for these range of government information cheaply and ongoing failures to provide comprehensive and quickly accessible to all taxpayers. Although in timely access to government informa t i o n . recent years there has been notable prog r ess in Or ganization and coordination problems con- this area, there remain substantial gaps in the tinue to hinder the adoption of information via go v e r nment information available online. Of In t e r net distribution at many agencies. Shifting the information that is available, many rep o rt s , fr om traditional modes of operating to an databases and other materials are more expen- In t e r net-focused, more transparent model sive or difficult to access than need be. As a req u i r es technical expertise and decisive leader- result, Americans who have paid for these mate- ship from managers, both of which are in short rials with their tax dollars continue to be denied supply in large federal bureaucracies. Funding the economic and social benefits to which they sh o r tfalls compound the problem. Budget- ar e entitled. And Congress, by failing to exploit setters, meanwhile, are reluctant to shift In t e r net technology to the fullest and make its res o u r ces from established organizational units own rec o r ds and executive branch documents to new Internet information services. There mo r e available to ordi n a r y citizens, is undermi n - ar e no influential constituencies lobbying for ing a vital tool of democratic accountability, changes and few Congressional leaders have scientific prog r ess and press oversight. chosen to push for prog r ess in making govern- Br own University’s annual survey of online ment information more accessible. This is no go v e r nment information rep o r ts that many fed- surprise. As politicians facing reelection, most eral government websites improved consider- Co n g r esspeople have little desire to expose ably from 2000 to 2001. The study ranked 58 their daily perfo r mance to closer public scrut i n y . sites according to their provision of publica- tions, databases, search functions, contact infor- Cre a t i v e Initiatives to Bolster mation and certain online services. Outstanding Access to Gover nment Infor mation: sites included the Food and Drug Administra- The Fir stG o v Search Engine tion, Department of Agriculture and the Fed- An important step forwa r d in the process of eral Communications Commission. Some of getting government information online came the poorest perfo r mers included the fe d e r a l with the launch in November 2000 of Fi r s t - co u r ts (including the Supreme Court), Con- Go v , the official federal government portal and gr ess and the Office of Management and Bud- se a r ch engine. FirstGov (www.f i r s t g o v .gov) was get, all of which failed to offer a compreh e n s i v e developed by Eric Brew e r , cofounder of the ar ray of timely documents via the Internet. se a r ch engine company Inktomi, and was

64 Saving the Information Commons

established via an executive order from the A Chief Infor mation Officer for the Clinton White House. The search engine Fed e r al Govern m e n t covers 31 million pages of information from One initiative that could well have a substan- mo r e than 22,000 government websites. In tial transformative impact on the availability of or der to ensure the project got off the grou n d , go v e r nment information is the proposed cre- Br ewer agreed to provide the search engine to ation of an “Information Czar” or Chief Infor- the government as a free service with no cost mation Officer (CIO) post within the federal or banner ads until 2003. Funding for First- go v e rn m e n t . 44 In May 2001, Senator Joseph Go v ’ s other operating costs in 2001 came from Li e b e r man introduced a bill to Congress that 22 individual federal agencies. would establish a statutory position in the While many have welcomed the establish- Of fice of Management and Budget to imple- ment of FirstGov as the single entry- p o i n t ment federal information policy. The bill, into the numerous stores of government infor- “The E-Government Act of 2001,” would mation on the Internet, critics point to a num- pr ovide the Information Czar with a budget of ber of glaring weaknesses in the service. $200 million a year with which to fund e-gov- The lead res e a r cher on Brown University’s er nment initiatives. The new office would also e- g o v e r nment surve y , Darrell West, says the take on responsibility for fostering the contin- biggest ongoing problem is poor visibility due ued improvement of FirstGov. to lack of promotion. FirstGov’s search engine Su p p o r ters of the legislation argue that a has been designed to handle 100 million pe r manent leadership position with expansive se a r ches per day but the site typically only decision-making authority in the executive averages between 800,000 and 1 million hits branch is the best way to ensure that the full per we e k . A FirstGov logo and hyperlink in f o r mation res o u r ces of federal agencies are appears prominently on federal governm e n t made available to the public in a coordi n a t e d websites but there has been no concerte d wa y . An Information Czar could set cataloging eff o r t or expenditure on educating the public st a n d a r ds (“metatags”) so that all governm e n t about the service and raising its prof i l e . sites could be searched in the same, straight- Another pressing concern is the future fund- fo rw a r d way. The CIO could also act as a ing of the project. Eric Brew e r ’ s loan of search watchdog, putting pres s u r e on agencies that engine services to FirstGov will end in 2003 and fail to make their information available online although the General Services Administration in a reasonable amount of time. has taken responsibility for shepherding the A hearing on the Lieberman bill was held se r vice into the future, there is no legislated be f o r e the Senate Committee on Governm e n - guarantee that the service will receive funding to tal Affairs in July 2001. While influential pub- continue in its present form. The quality of the lic interest groups like OMB Watch voiced se r vice depends on an efficient search engine su p p o r t of the bill, some Republican Senators technology and a thorough management team ex p r essed concerns over the scope of authority that works closely with all federal governm e n t of the new Information Czar and the prop o s e d agencies to ensure all information res o u r ces are budget. The bill also faces opposition from co v e r ed by FirstGov. Both these req u i re m e n t s the Bush Administration, which has its own demand a generous and stable budget. plans for a smaller, less authoritative office of

65 Fortify the Information Commons

in f o r mation technology. Leaders from both House and Senate’s committee rooms and is pa r ties have publicly agreed some comprom i s e s ch a r ging between $5,000 and $10,000 a year ar e necessary, but it is uncertain when or if an for access. Many special interest lobbyists view acceptable bill will come up for a vote soon. this information as so critical to their day-to- day influence on the legislative process that The Tric kle of Infor mation from Congres s they are happily forking out these prod i g i o u s With its regular public hearings and deliberative sums. Few individual citizens and nonprof i t ap p r oach, Congress is known as the most open watchdog organizations can affo r d the Hear- branch of the federal government. But its per- ingRoom.com service, however. fo r mance in getting its information res o u rc e s By sanctioning this special private access to online for public access is woeful. It sponsors its hearings, Congress has in effect established authoritative, nonpartisan res e a r ch in all policy a two-tier system of public information. Hear- ar eas through the Congressional Research Ser- in g R o o m . c o m ’ s high-paying customers get full vice (CRS), but those rep o r ts are essentially hid- in f o r mation privileges, while the ordi n a r y tax- den from public view on a private intranet payers who fund Congress are forced to make accessible only to congressional offices. Some do with second best. individual members post a select few CRS Senator John McCain has twice introd u c e d rep o r ts on their personal websites but there is legislation in the Senate that would compel the no central rep o s i t o r y online. Databases full of posting of CRS res e a r ch rep o r ts, lobbying and in f o r mation useful to voters on such things as gift declarations and joint committee rep o rt s Co n g r ess members’ fundraising, meetings with on the Internet. But opposition from senior lobbyists and voting rec o r ds on specific pieces of lawmakers has ensured that the bill, known as legislation are compiled with care, but are not the “Congressional Openness” res o l u t i o n , posted or are incompletely posted on the Inter- repeatedly gets tied up in committee and never net. Transcripts of public committee hearings comes up for vote. McCain claims that the lack take months to be posted online. And don’t even of prog r ess is “part institutional bias, part busi- bother trying to track revisions of bills as they ness-as-usual thinking,” but its opponents’ rea - pass through the Senate and House: this infor- soning on the issue is not hard to figure out. mation, too, is unavailable. Despite the obvious public benefits of getting Instead of seriously addressing these failures , mo r e congressional information onto the Co n g r ess has quietly allowed the private sector In t e r net faster, Senators and Repres e n t a t i v e s to step in and sell congressional informa t i o n realize that it would also subject them to much for profit. HearingRoom.com, a company closer—and sometimes embarrassing and polit- founded by former director of corporate com- ically vexing—public scrut i n y . McCain has munications at Monsanto, Philip Angell, now signed up co-sponsors Senators Patrick Leahy of fers real-time transcription and audio servi c e (D-VT), Senator Trent Lott (R-MS) and Sena- via the Internet from inside congres s i o n a l tor Joseph Lieberman (D-CT), and has vowed hearings. The company has been granted per- to keep introducing the bill. mission to permanently lay its cables in the

66 Conclusion: A Return to First Principles

he laws and policies that undergi r d our national communications system may change from time to time, but the deeper values that they seek to Tadvance should not. The time is now ripe to bring our laws and policies into closer alignment with enduring American values. Even as we promote rob u s t competition in open markets, we must ensure that market activity does not crow d out important ex t r a - m a r k e t values rep r esented by the commons. Public policy should reflect this priority. After all, people are not just “consumers” of content and other media prod u c t s . They are citizens and creators in their own right. Opportunities for free expres s i o n should theref o r e be available to everyone, not just to the owners of large media enter- prises. Public spaces for open interaction need to be freely available on a nondiscrim- ina t o r y basis. If our public life is going to be hospitable to a diversity of expres s i o n , public policies must look beyond the demands of commercial content-providers and pr otect individual citizens and their artistic, civic, educational and cultural concerns. A rough equity of access and participation is part of our democratic heritage. This value needs to be championed as a central meaning of the public interest in media policy. Amidst the confusion engendered by a crush of new digital technologies, espe- cially the Internet, we believe that the commons offers a fresh and flexible para- digm for actualizing old values in a new communications context. The commons helps us articulate a constellation of values that market activity tends to denigrate or dismiss. It focuses on the need for free and open access to the media by every- one and the ability of all citizens to participate in a media platform as a matter of civic right, not economic clout.

67 Conclusion

The commons is concerned about commu- can be developed: new protections to assure an nication inspired by all manner of moral, open, end-to-end Internet arch i t e c t u r e, new social, civic and artistic concerns, rather than go v e r nment action to assure open standards only those types of communication that can for key communications platforms, new limits yield corporate profits. Instead of fixating on on copyright and trademark law so that the the giant media corporations, its moguls and public domain and new creativity may flourish their competitive vicissitudes, talking about the and new government initiatives to manage the commons opens the discussion of media policy pu b l i c ’ s airwaves to directly benefit the public. to a broader perspective: our democratic cul- We have seen a great deal of innovation in tu r e. It shifts the focus to a more approp r i a t e private-sector technology and markets. We vector of analysis: the basic rights and needs of have not seen a corresponding burst of leader- individual citizens. And it helps meet citizen ship and innovation in protecting the public needs through a vehicle that is neither market- in t e r est in this new environment. Just because based nor state-controlled, but a third domain many elements within Congress, the FCC and of governance altogether: the commons. other government bodies have chosen not to As important as markets and technology are, develop new public interest policies does not for too long they have been reg a r ded as ends mean that the public interest is an arch a i c , unto themselves. The implicit assumption has meaningless concept. This rep o r t offers ample been that the broader needs of our society evidence to the contrary. would somehow take care of themselves. But as But rather than quibble over the specifics of we have seen, market forces are uninterested in one proposal versus another, it may be more (and perhaps incapable of) meeting all sorts of valuable to underscore certain first principles societal needs. By contrast, the Internet, as a as we try to re- a r ticulate the meaning of the commons, has shown itself to be enormo u s l y public interest in the digital age. We again versatile and powerful, creating value in ways of fer the following principles as guideposts: that markets cannot while also nurturing new sinews of moral and social connection. Public 1. Pre s e r ve significant slices of the communi- policy needs to recognize these facts, and cations infrastruc t u r e for non-commerci a l imagine innovative policy initiatives that pro- varieties of communication, and prov i d e tect and extend the Internet commons. su f ficient legal and financial support for At a time when public policy in telecommu- cr eativity in these spaces. nications has inexorably lost sight of the citi- 2. As s u r e that markets are truly open, compet- ze n r y and the public interest (to the point itive and diverse, and not closed and con- wh e r e many profess that “the public interes t ” centrated. is meaningless or synonymous with the “free 3. Allow new technologies to evolve and inno- market”), we call for a new conversation about vate without being quashed or subverted by the information commons. The concept helps existing media industries. clarify that there is indeed a discernible and 4. En s u r e that First Amendment freedoms are ur gent public interest to be advanced. The fully applied to individual citizens—the pri- commons is a conceptual framework upon ma r y constituent of our democratic polity— which a new body of public interest policies and only secondarily to media corporations.

68 Saving the Information Commons

5. Revisit the cultural bargain of copyright and While the pace of technological change and trademark law to assure that the public gets the power of market forces have been disrup - a fair ret u r n for the monopoly rights it gives. tive over the past decade, in both good and 6. Devise innovative policy struc t u r es that bad ways, we seem to have reached a plateau can affi r matively protect the informa t i o n that affo r ds us some perspective. It is time to commons against prop r i e t a r y free riders, instigate a new conversation about the public as the General Public License has done in t e r est in digital media. Many things are far for open source software and as the spec- mo r e evident than they once were, including tr um commons proposes to do for wirel e s s the benefits of the Internet, the commerci a l co m m u n i c a t i o n s . th r eats to its arch i t e c t u r e and digital content 7. As s u r e that the public reaps a fair ret u r n on and the importance of the public domain. the private uses of public assets, such as the Fo rt u n a t e l y , we can now contemplate a number el e c t r omagnetic spectrum . of fresh and innovative proposals that can safe- gu a r d and extend the information commons.

69 Saving the Information Commons

Reader Resources I. The Rise of the Information Commons Bu t l e r , D. “Los Alamos Loses Physics Arch i v e Syracuse Peace Council v. FCC, 867 F.2d 654, as Preprint Pioneer Heads East.” Ava i l a b l e 657 (DC Cir. 1989), ce r t. denied, 493 US at ht t p : / / w w w. n a t u re . c o m . 1019 (1990). Hinde, J. “Online Archive Celebrates a Decade Of Data Dissemination,” The Tim e s PEW INTERNET & AMERICAN LIFE PROJ E C T Higher Education Supplement, August 3, Ho r rigan, John B. “Online Communities: 2001, p. 22. Networks That Nurtu r e Long-Distance The Public Library of Science open letter: Relationships and Local Ties,” rep o r t for ht t p : / / w w w. p u b l i c l i b r a ry o f s c i e n c e . o r g the Pew Internet & American Life Proj e c t , October 31, 2001. Available at ht t p : / / w w w . Debate over Public Library of Science in the pe w i n t e rn e t . o r g. jo u r nal Na t u r e: ht t p : / / w w w. n a t u re . c o m / na t u re / d e b a t e s / e - a c c e s s / i n d e x . h t m l MARKLE FOU N D ATION REPORT Debate over Public Library of Science in the “T ow a r d a Framework for Interne t jo u r nal Sc i e n c :e ht t p : / / w w w. s c i e n c e m a g . o rg / Ac c o u n t a b i l i t y ,” rep o r t for The Markle fe a t u re / d a t a / h o t t o p i c s / p l s d e b a t e . s h t m l Foundation, 2001. Available at Pub Med Central, the National Institutes of ht t p : / / w w w. m a r k l e . o r g. He a l t h ’ s existing life sciences article arch i v e : ht t p : / / w w w. p u b m e d c e n t r a l . n i h . g o v A Place of Our Own: Online “J o u r nal Wars,” The Economist, May 10, 2001. Libraries and Archi ve s Rowe, R. “Digital Archives: How We ib i b l i o . o r g: ht t p : / / w w w. i b i b l i o . o r g Can Provide Access to Old Biomedical Pr oject Gutenberg: ht t p : / / p ro m o . n e t / p g In f o r mation.” Available at ht t p : / / w w w . Perseus Digital Library: ht t p : / / w w w. p e r s e u s . na t u re . c o m / n a t u re / d e b a t e s / e - a c c e s s / tu f t s . e d u Art i c l e s / ro w e . h t m l . Noesis Philosophical Research On-line: The Budapest Open Access Initiative: ht t p : / / ht t p : / / n o e s i s . e v a n s v i l l e . e d u ww w. s o ro s . o rg / o p e n a c c e s s / re a d . s h t m l Pr oject Vote Smart: ht t p : / / w w w . vo t e - s m a rt . o r g The Inter n e t Commons as Online Collaboration M. I . T . OpenCourseWar e: ht t p : / / w e b . m i t . Larson, Gary O. “The Dot-Commons: ed u / o c w A Vir tual Tour of the Online Civic Sector,” Collaborative Lesson Archive: ht t p : / / z u b o v . rep o r t for the Center for Digital at m o s . u i u c . e d u / C L A De m o c r a c y , 2001. Available at ht t p : / / w w w . de m o c r a t i c m e d i a . o rg / i s s u e s / d i g i t a l c o m - Los Alamos e-Print Archive: ht t p : / / w w w . mo n s / d o t c o m m o n s t o u r. h t m l . arx i v. o r g Glanz, J. “The World of Science Becomes a IN T E R N E T- B ASED DISTRIBUTED CO M P U T I N G PROJ E C T S Global Village: Arch i v e Opens a New Realm of Research,” The New York iTm e s , Aspen Leaf Concepts, Inc.: ht t p : / / w w w . May 1, 2001, p. F1. as p e n l e a f . c o m / d i s t r i b u t e d

71 Reader Resources

Open Direc t o r y Project: ht t p : / / w w w . See also, Benkler, Yochai. “Coase’s Penguin, or dm o z . o r g Linux and the Nature of the Firm,” paper Slashdot: ht t p : / / w w w. s l a s h d o t . o r g pr esented at Duke University Law School Co n f e r ence on the Public Domain, See also Benkler, Yochai. “Coase’s Penguin, or November 9-11, 2001. Linux and the Nature of the Firm,” paper pr esented at Duke University Law School Se a r ch for Extraterrestrial Life (SETI): Co n f e r ence on the Public Domain, ht t p : / / s e t i a t h o m e . s s l . b e r k e l e y. e d u November 9-11, 2001. CR E AT I V I T Y AND DISTRIBUTED COMPUTING BIRD TRACKI N G Douglas Rushkoff’s Open-Source Novel proj - The Great Backyard Bird Count, Corne l l ect: ht t p : / / w w w. y i l . c o m / e x i t s t r a t e g y University: ht t p : / / b i rd s o u rc e . c o rn e l l . Mirapaul, Matthew. “Why Just Listen to Pop edu/gbbc /toc_page.html When You Can Mix Your Own?” The New Ga r reau, J. “Flocking Together Through the York Times,August 20, 2001. Web: Bird Watchers May Be a Harbinger Public Enemy’s Remix Competition: ht t p : / / of a True Global Consciousness,” Th e ww w. s l a m j a m z . c o m / s l a m n e w s . Washington Post,May 9, 2001. ph p ? a rt i c l e = 7 Go r man, James. “Counting Birds at the Björk Remix Web: ht t p : / / w w w. a rt k t i k o s . Gr a s s r oots,” The New York iTm e s , December co m / b j o r k 13, 2001. Theme Park Insider: ht t p : / / Jo u r ney North: ww w. l e a rn e r. o rg / j n o rt h th e m e p a r k i n s i d e r. c o m Bi r dCast, including Doppler radar images of See also, O’Connell, Pamela LiCalzi. “Theme bi r ds, can be found at ww w. b i rd c a s t . c o m . Park Insider,” The New York iTm e s , A satellite map of a migration is available at November 22, 2001. ww w. l e a rn e r. o rg / j n o rt h / i m a g e s / gr a p h i c s / d e / e a g l e _ e _ m a p 0 4 0 3 0 1 . h t m l . The Open Source Softwa r e Revol u t i o n CO L LA BO R A TIVE INTERNET PROJ E C T S Mo o d y , Glyn. Rebel Code: Inside Linux and the O’Connell, Pamela LiCalzi. “Mind Over Open Source Revolution(New York, NY: Matter: Online Volunteers Donate Their Perseus, 2001). Brainpower for the Interests of Science, Th e Raymond, Eric. “The Cathedral and the New York Tim e s , April 5, 2001. Ba z a a r .” Available at ht t p : / / w w w. t u x e d o . O’Connell, Pamela LiCalzi. “Mining the org / ~ e s r / w r i t i n g s / c a t h e d r a l - b a z a a r / Minds of the Masses,” The New York iTm e s , ca t h e d r a l - b a z a a r / i n d e x . h t m l . Ma r ch 8, 2001. The Martus Project on human rights: Distributed Proo f r eading: ht t p : / / w w w . ht t p : / / w w w. m a rt u s . o r g pro m o n e t / p g La w r ence Lessig. “Open Code and Open Gr eat Internet Mersenne Prime Search Societies: The Values of Interne t (GIMPS): ht t p : / / w w w . Go v e r nance,” Sibley Lecture at the me r s e n n e . o rg / p r i m e . h t m University of Georgia, Februa r y 16, 1999. NASA Clickworkers: ht t p : / / c l i c k w o r k e r s . —————. Code and Other Laws of Cyberspace. arc . n a s a . g o v / t o p New York, NY: Basic Books, 1999, esp. pp. 10 0 - 1 0 8 .

72 Saving the Information Commons

The Pee r- t o - P eer Revol u t i o n II. Save the Inter n e t Commons Oram, A. Pe e r -to-Peer: Harnessing the Benefits of The Fut u r e of Open Stan d a rd s a DisruptiveTechnology (Sebastopol, CA: GENERAL ESSAYS O’Reilly and Associates, 2001). Be n k l e r , Yochai. “Free as the Air to Common Bu r ton, Jonathan. “Peer-to-Peer Grows Up Use: First Amendment Constraints on and Gets a Real Job,” The New York iTm e s , En c l o s u r e of the Public Domain,” 74 Ne w June 13, 2001. York University Law Review(May 1999). Web e r , Thomas E. “Using Peer-to-Peer to Available at ht t p : / / w w w. n y u . e d u / Make Net Smarter and More Prod u c t i v e , ” pa g e s / l a w r eview/74/2/ benkler.p d f . The Wall Street Journa l , November 13, 2000. Dugdale, Don. “Will the Internet Stay Manjoo, Farhad. “Peer-to-Peering into the Open?” Un i F o r um Monthly, March 1996. Fu t u r e,” Wire d , Feburary 16, 2001. Available at ht t p : / / w w w. u n i f o ru m . o rg / ne w s / h t m l / p u b l i c a t i o n s / u f m / m a r 9 6 / Le Blanc, Jamal. “Peer to Peer Opportu n i t i e s : in t e rn e t . h t m l . Keeping an Open Mind on File- Sharing Networks,” The Digital Beat, October 25, Le m l e y , Mark A. “Antitrust, Intellectual 2001. Available at ht t p : / / w w w. b e n t o n . Pro p e r ty and Standard Setting org / D i g i t a l B e a t / 1 0 2 5 0 1 . h t m l . Or ganizations,” paper presented at the Telecommunications Research Council Bricklin, Dan. “The Cornucopia of the Co n f e r ence, 2001. Commons: How to Get Manual Labor,” August 7, 2000. Available at ht t p : / / w w w . Lessig, Lawrence. “Innovation, Regulation br i c k l i n . c o m / c o rn u c o p i a . h t m . and the Internet,” The American Pros p e c ,t 11:10, March 27, 2000. Available at ht t p : / / A Direc t o r y of Peer-to-Peer Projects: ht t p : / / ww w. p ro s p e c t . o r g/print /V11/10/ ww w. o p e n p 2 p . c o m / p u b / q / p 2 p _ c a t e g o r y le s s i g - l . h t m l . The Open Lab: ht t p : / / b i o i n f o rm a t i c s . o r g Varian, Hal R. and Carl Shapiro. In f o rm a t i o n WE B LO G S Rules: A Strategic Guide to the Network Ec o n o m y (Boston, MA: Harva r d Business For examples of blogging in action visit: School Press, 1998). An extract is available ht t p : / / w w w. b l o g g e r. c o m online in Wire d , October 1998 at ht t p : / / ht t p : / / w w w. l i v e j o u rn a l . c o m ww w. w i re d . c o m / w i re d / a rc h i v e / 6 . 1 0 / ne w e c o n o m y. h t m l ? p g = 5 . ht t p : / / w w w. m e t a f i l t e r. c o m Ko r nblum, Janet. “Web Writers are Blogging INTERNET STAN D ARDS GROU P S On,” USA Tod a y , August 28, 2001. The World Wide Web Consortium: ht t p : / / Layne, Ken. “Media Web Logs for Fun and ww w. w 3 . o r g No Profit,” Online Journalism Review, In t e r net Engineering Task Force: ht t p : / / December 6, 2000. Available at ht t p : / / o j r . ww w. i e t f . o r g us c . e d u / c o n t e n t / s t o r y.c f m ? re q u e s t = 5 0 3 . Win e r , Dave. “The History of Web l o g s , ” Ho t Zones for Inter n e t Stan d a r d Sett i n g Userland Software, September 9, 2001. IN S TANT MESSAGI N G Available at ht t p : / / w w w. u s e r l a n d . c o m / th e h i s t o ry o f w e b l o g s . IMUnified–the interoperability initiative sp e a r headed by Yahoo!, MSN and AT& T : ht t p : / / w w w. i m u n i f i e d . o r g

73 Reader Resources

Instant Messaging working group, Interne t me d i a a c c e s s . o r g Engineering Task Force: ht t p : / / w w w. i e t f . National Cable Television Association: org / h t m l . c h a rt e r s / i m p p - c h a rt e r. h t m l ht t p : / / w w w. n c t a . c o m WI N D O WS XP/.NET The openNET Coalition: ht t p : / / w w w . Co o p e r , Mark N. and Christopher Murra y . op e n n e t c o a l i t i o n . o r g “W indows XP/.NET: Micros o f t ’ s AR TICLES ON INTERNET AND SOFTWARE STAN DA R D S Expanding Monopoly: How It Can Harm Consumers and What the Courts Must Au f d e r heide, Patricia. “Walled Gardens of Do to Pres e r ve Competition,” rep o r t by En c l o s u r e Movement? The Debate Over the Consumer Federation of America, the Public Interest in the AOL Tim e September 26, 2001. Available at ht t p : / / War ner Merge r ,” paper presented at the ww w. c o n s u m e rf e d . o rg / W I N X P _ In t e r national Communication Association an t i c o m p e t i t i v e _ s t u d y. P D F . co n f e r ence, May 27-28, 2001. Lessig, Lawrence. The Future of Ideas: The Fate —————. “The Threat to the Net,” Me t r o of the Commons in a Connected World(N e w Times Detroi t , Fe b ru a r y 2, 2000. Available at York, NY: Random House, 2001). ht t p : / / w w w. m e t ro t i m e s . c o m / 2 0 / 1 8 / Fe a t u re s / n e w N e t . h t m . EBO O K S Ch e s t e r , Jeff. “Beware the Digital Landlords : Open eBook Forum: ht t p : / / w w w . An Open Letter to Internet Users,” op e n e b o o k . o r g Se p t e m b e r , 18, 2000. Available at ht t p : / / The Digital Object Identifier Foundation: ww w. t o m p a i n e . c o m / f e a t u re s / 2 0 0 0 / 0 9 / ht t p : / / w w w. d o i . o rg / e b o o k s . h t m l 18 / 7 . h t m l . Lessig, Lawrence. “Jail Time in the Digital —————. “End of the Open Road?” Th e Age,” The New York iTm e s , July 30, 2001. American Pros p e c ,t January 17, 2000. Available at ht t p : / / w w w. n y t i m e s . c o m / Available at ht t p : / / w w w. p ro s p e c t . o rg / 20 0 1 / 0 7 / 3 0 / o p i n i o n / 3 0 L E S S . h t m l . pr i n t / V 1 1 / 5 / c h e s t e r- j . h t m l . Mo o n e y , Stephen P. “Interoperability: Digital Lessig, Lawrence. The Future of Ideas: The Fate Rights Management and the Emergi n g of the Commons in a Connectedo rWl d (N e w eBook Environment,” D-Lib Magazine, York, NY: Random House, 2001). Ja n u a r y 2001. Available at ht t p : / / w w w . —————. “End Game: Clinton versus the dl i b . o rg / d l i b / j a n u a ry 0 1 / m o o n e y / In t e rn e t , ” Th e New Republic,June 19, 2000. 01 m o o n e y. h t m l . Available at ht t p : / / w w w. t h e n e w re p u b l i c . Wil d s t r on, S.H. “How the Digital Object co m / 0 6 1 9 0 0 / l e s s i g 0 6 1 9 0 0 . h t m l . Identifier Works,” Business Wee k , July 23, 2001. Available at ht t p : / / w w w . The Danger s of Media Concentration bu s i n e s s w e e k . c o m / m a g a z i n e / c o n t e n t / BOO K S, ARTICLES AND TESTI M O N Y 01 _ 3 0 / b 3 7 4 2 0 3 2 . h t m . “O f f the Record: What Media Corporation’s Do n ’ t Tell You About Their Legislative Pr otecting Open Access to the Inter n e t Agendas,” rep o r t for the Center for Public Consumer Project on Tec h n o l o g y ’ s “Open In t e g r i t y , 2000. Access” res o u r ces page: ht t p : / / w w w . cp t e c h . o rg / e c o m / o p e n a c c e s s Media Access Project: ht t p : / / w w w .

74 Saving the Information Commons

Co o p e r , Dr. Mark N. “Mapping Media Civil Rights Forum on Communications Market Struc t u r e at the Millennium,” Policy (Mark Lloyd): ht t p : / / w w w . rep o r t for the Consumer Federation of ci v i l r i g h t s f o ru m . o r g America, July 2001. Leadership Conference on Civil Rights (Cory —— — — — . Statement at Roundtable on FCC Smith): ht t p : / / w w w. c i v i l r i g h t s . o r g Ownership Policies,” October 29, 2001. Feld, Harold. “The Increased Need for FCC III. Protect the Public Domain: Limit Me r ger Review in a Networked Wor l d , ” paper presented at the Tel e c o m m u n i c a t i o n s the Copyright Monopoly Policy Research Conference, October 27- Ma k e It Easy to Put Wor ks 29, 2001. into the Public Domain Kimmelman, Gene. Testimony before the Litman, Jessica. Presentation at Duke Law Senate Committee on Commerce, Science School Conference on the Public Domain, and Tra n s p o r tation on Media November 9-11, 2001. Consolidation, July 7, 2001. Mc C h e s n e y , Robert W. Rich Media, Poor Sh o r ten the Term of Copyr i g h t Democracy: Communication Politics in Dubious Tim e s (Urbana, Illinois: University of Illinois Lessig, Lawrence. The Future of Ideas: The Fate Pr ess, 1999). of the Commons in a ConnectedWorld (New York, NY: Random House, 2001, pp. 106- ————— and John Nichols. “The Making 107, 251-252). of a Movement: Getting Serious about Media Re f o r m,” The Nation, Ja n u a r y 7, 2002. Af firm Broad Fair Use Rights for the Public Sh o r enstein, Stuart S. and Andrew D. Fisher. “Media Concentration Rules Are on Shaky Lange, David and Jennifer Lange Anderson. Gr ound,” New York Law Journa l , October “Copyright, Fair Use and Tra n s f o rm a t i v e 27, 2001. Critical Appropriation,” working paper for the Duke Law School Conference on the Solomon, Deborah, and Robert Frank. Public Domain, November 9-11, 2001. “Comcast Deal Cements Rise of Oligopoly in the Cable Business,” The Wall Stree t Jo u rn a l , December 21, 2001. Roll Back the Digital Millennium Copyright Act PU B L I C - I N T E R E S T GROUPS FIGHTING MEDIA CONCE N T R AT I O N Cohen, Julie E. “Call it the Digital Millennium Consumer Federation of America (Dr. Mark Ce n s o r s h i p Act,” The New Republic, May 23, Cooper): ht t p : / / b u y e n e rg y e ff i c i e n t . o r g 2000. Available at ht t p : / / w w w. t n r. c o m / on l i n e / c o h e n 0 5 2 3 0 0 . h t m . Consumers Union (Gene Kimmelman): ht t p : / / w w w. c o n s u m e r s u n i o n . o r g Digital Millennium Copyright Act arch i v e operated by journalist Declan McCullagh: Media Access Project (Cheryl Leanza): ht t p : / / p o l i t e c h b o t . c o m / c g i - b i n / ht t p : / / w w w. m e d i a a c c e s s . o r g po l i t e c h . c g i ? n a m e = d m c a . Center for Digital Democracy (Jeff Chester): El e c t r onic Frontier Foundation, ht t p : / / w w w . ht t p : / / w w w. d e m o c r a t i c m e d i a . o r g eff . o r g, is actively involved in defending alleged violators of the DMCA.

75 Reader Resources

Gi l m o r e, John. “What’s Wrong with Content Moglen, Eben. “Free Software Matters: Pr otection.” Available at ht t p : / / w w w. t o a d . En f o r cing the GPL, I,” Linux User, August, co m / g n u / w h a t s w ro n g . h t m l . 2001. Available at ht t p : / / m o g l e n . l a w . Openlaw archive of legal cases involving co l u m b i a . e d u / p u b l i c a t i o n s / l u - 1 2 . h t m l . DeCSS and DVDs: ht t p : / / e o n . l a w. h a rv a rd . Moglen, Eben. “Free Software Matters: ed u / o p e n l a w / D V D / re s o u rc e s . h t m l En f o r cing the GPL, II,” Linux User Ni m m e r , David. “A Riff on Fair Use in the Se p t e m b e r , 2001. Available at ht t p : / / Digital Millennium Copyright Act,” 148 mo g l e n . l a w. c o l u m b i a . e d u / p u b l i c a t i o n s / University of Pennsylvania Law Review(2 0 0 0 ) . lu - 1 3 . h t m l . Public Knowledge, ht t p : / / w w w . O’ R e i l l y , Tim. “Open Source: The Model for pu b l i c k n o w l e d g e . o r g, is concerned about Collaboration in the Internet Age,” keynote pre s e r ving fair use principles in digital rights ad d r ess presented at the Computers management systems. Fr eedom and Privacy Conference, April 6, 2000. Available at ht t p : / / w w w. o p e n p 2 p . co m / p u b / a / n e t w o r k / 2 0 0 0 / 0 4 / 1 3 / Af firm Free Speech over Tra d e m a r k Law CF P k e y n o t e . h t m l ? p a g e = 1 . Fr oomkin, A. Michael. “The Collision of A COMMERCIAL LAWYER’S PERSPECTIVE ON GPL Trademarks, Domain Names and Due Pr ocess in Cyberspace,” Communications of Pe n a r czyk, Matthew J. “Open-Source the ACM, Februa r y 2001, pp. 91-97. So f t w a r e: Understanding the ‘Open’ Legal Issues,” Intellectual Prop e r ty and Tec h n o l o g y Law Update, July 2001. Available at ht t p : / / Pro m o te the General Public ww w. h k l a w. c o m / n e w s l e t t e r s . a s p ? I D = 2 0 3 . License in Softwa r e DISCUSSION OF THE GRAY AREAS Fr ee Software Foundation’s GNU General IN GPL ENFORC E M E N T Public License and a list of other similar Su rv e y o r , Jacques. “Open Source Wou n d s , ” open software licenses: ht t p : / / w w w. f s f . o rg / In t e r net Wor l d , June 15, 2001. li c e n s e s / l i c e n s e - l i s t . h t m l Wright, Bradley C. “Linux Users Risk El e c t r onic Frontier Foundation’s “Intellectual In f r i n g e m e n t , ” Intellectual Prop e r ty and Pro p e r ty Online: Patent, Trademark and Technology Law Journa l (August 2001). Copyright Archive.” Articles, debate and data of relevance from a leading advocate for the information commons: Ex p l o r e GPL-L i k e Licenses in Other Media ht t p : / / w w w. e ff . o rg / I P Cr eative Commons (Molly Van Houweling): ES S AYS ms v h @ p o b o x . c o m Be n k l e r , Yochai. “The Battle Over the El e c t r onic Frontier Foundation’s Open Audio Institutional Ecosystem in the Digital License (OAL): ht t p : / / w w w. e ff . o rg / En v i r onment,” 44 Communications of the IP / O p e n _ l i c e n s e s / e ff _ o a l . h t m l AC M (2001), pp. 84-90. Available at ht t p : / / EF F ’ s ref e r ence page for OAL alterna t i v e s : ww w. l a w. n y u . e d u / b e n k l e ry / C A C M . p d f . ht t p : / / w w w. e ff . o rg / I P / O p e n _ l i c e n s e s / Moglen, Eben. “Anarchism Triumphant: Free op e n _ a l t e rn a t i v e s . h t m l So f t w a r e and the Death of Copyright,” Fi r s t Mo n d a y , August 1999. Available at ht t p : / / mo g l e n . l a w. c o l u m b i a . e d u / p u b l i c a t i o n s / an a rc h i s m . h t m l .

76 Saving the Information Commons

The Free Music Public License: ht t p : / / w w w . The New Voices Initiative mu s i q u e - l i b re . c o m / f m p l . h t m l Reed Hundt’s initiative is also described in Essays explaining the motivation behind Free Bo l l i e r , David. “In Search of the Public Music Public License: ht t p : / / w w w . In t e r est in the New Media Environ m e n t , ” fre e - m u s i c . c o m / f re e m u s . h t m rep o r t of the Aspen Institute Forum on The Open Music Registry: ht t p : / / w w w . Communications and Society Program, 2002. op e n m u s i c re g i s t r y.o r g Ar ts Libre or Free Art License text: The Open Spectrum Proj e c t ht t p : / / a rt l i b re . o rg / l i c e n c e / l a l g b . h t m l Baran, Paul. “Visions of the 21st Century The Design Science License text: Communications: Is the Shortage of Radio ht t p : / / w w w. d s l . o rg / c o p y l e f t / d s l . t x t Sp e c t r um for Broadband Networks of the Open Content License: ht t p : / / w w w . Fu t u r e a Self Made Problem?” Keynote talk op e n c o n t e n t . o r g transcript from the Next Generation Networks conference, November 9, 1994. Available at ht t p : / / w w w. w i n l a b . ru t g e r s . IV . For tify the Information Commons: ed u / ~ c ro s e / b a r a n . h t m l . Ado p t Innovat i v e Policy Initiatives Be n k l e r , Yochai. “Overcoming Agoraphobia: Earning A Fair Return On Our Airwaves Building the Commons of the Digitally Networked Environment,” 11 Ha rv a r d Go r e Commission’s Advisory Committee on Jo u r nal of Law and Tec h n o l o g 287y (Win t e r Public Interest Obligations of Digital 1998). Available at ht t p : / / w w w. l a w. n y u . Television Broadcasters. “Ch a r ting the ed u / b e n k l e ry / a g o r a p h o b i a . p d f . Digital Broadcasting Future,” December 18, —————. “From Consumers to Users: 1998. Available at ht t p : / / w w w . Shifting the Deeper Struc t u r es of be n t o n . o rg / P I A C . Regulation Tow a r ds Sustainable Commons Ca l a b r ese, Michael. “Principles for Spectrum and User Access,” 52 Federal Communications Policy Reform,” working paper for the New Law Journa l 561 (2000). Available at America Foundation, November 2001. ht t p : / / w w w. l a w. i n d i a n a . e d u / f c l j / p u b s / Available at ht t p : / / w w w. n e w a m e r i c a . n e t . v5 2 / n o 3 / b e n k l e r 1 . p d f . Ge l l e r , Henry. “Earning a Fair Return on Our —————. “Siren Songs and Amish Ai r waves: A Proposal for a Spectrum Usage Ch i l d r en: Autonomy Information and Law,” Fee on Broadcasters,” working paper for the 76 New York University Law Review(A p r i l New America Foundation, May 2002. 2001). Available at ht t p : / / w w w. n y u . e d u / Available at ht t p : / / w w w. n e w a m e r i c a . n e t . pa g e s / l a w re v i e w / 7 6 / 1 / b e n k l e r. p d f . Hazlett, Thomas W. “Spectrum Flash Dance: The Digital Promise Proj e c t Eli Noam’s Proposal for ‘Open Access’ to Mi n o w , Newton and Lawrence Grossman. A Radio Waves,” 41 Jo u r nal of Law and Digital Gift to the Nation: Fulfilling the Ec o n o m i c (Octobers 1998). Available at Pr omise of the Digital and Internet Age(N e w ht t p : / / w w w. a e i . o rg / r a / r a h a z l 4 . p d f . York, NY: Century Foundation Press, 2001). The Digital Promise Project: ht t p : / / w w w . di g i t a l p ro m i s e . c o m .

77 Reader Resources

Lessig, Lawrence and Yochai Benkler. IN FO R M A TION CZAR PROP O S AL “Net Gains: Will Technology Make CBS Atkinson, Robert D. and Jacob Ulevich. Unconstitutional?” The New Republic, “Digital Government: The Next Step to December 14, 1998. Available at ht t p : / / w w w . Reengineering the Federal Governm e n t , ” th e n e w re p u b l i c . c o m / a rc h i v e / 1 2 9 8 / 1 2 1 4 9 rep o r t for the Prog r essive Policy Institute, 8/ b e n k l e r l e s s i g 1 2 1 4 9 8 . h t m l . Ma r ch 2, 2000. Available at ht t p : / / w w w . Noam, Eli M. “Taking the Next Step Beyond pp i o n l i n e . o rg / p p i _ c i . c f m ? k n l g A re a I D = Sp e c t r um Auctions: Open Spectrum 14 0 & s u b s e c I D = 2 9 0 & c o n t e n t I D = 6 0 6 . Access,” IEEE Communications Magazine, Senator Joseph Lieberma n ’ s “S.803 E- Vol. 33, December 1995. Available at Go v e r nment Act of 2001:” ht t p : / / ht t p : / / w w w. c o l u m b i a . e d u / d l c / w p / c i t i / c i t i frw e b g a t e . a c c e s s . g p o . g o v / c g i - b i n / no a m 2 1 . h t m l . ge t d o c . c g i ? d b n a m e = 1 0 7 _ c o n g _ Peha, Jon M. “The Path to Unified bi l l s & d o c i d = f : s 8 0 3 i s . t x t . p d f Coexistence in Unlicensed Spectrum , ” Em e r y, Gail Repsher. “Lawmakers, Industry IEEE Communicatons Magazine, April 2000. See Compromise On Federal CIO,” Available at ht t p : / / w w w. i e e e 8 0 2 . o rg / 1 6 / Was h Te c h . c o ,m August 24, 2001. Available at hu m a n / c o n t r i b / 8 0 2 1 6 h c - 0 0 _ 0 3 . p d f . ht t p : / / w w w. w a s h t e c h . c o m / n e w s / Werbach, Kevin. “Open Spectrum: The go v t i t / 9 9 3 4 - 1 . h t m l . Paradise of the Commons,” Release 1.0, Matthews, William. “Egovt bill draws November 20, 2001. doubters,” Federal Computer Wee k , July 12, 2001. Available at ht t p : / / w w w. f c w. c o m / fc w / a rt i c l e s / 2 0 0 1 / 0 7 0 9 / w e b - e g o v - 0 7 - Managing Government Information 12 - 0 1 . a s p . As If Citizens Mattere d CO NG R E S S I O N AL INFOR M A TION GENERAL GOVERNMENT INFOR M AT I O N ACCESS PROBLEMS Br own University’s E-Government Study: Co r n, David. “Filegate.gov,” Wire d , West, Darrell M. “State and Federal E- November 2000. Available at ht t p : / / w w w . Go v e r nment in the United States, 2001,” wi re d . c o m / w i re d / a rc h i v e / 8 . 1 1 / rep o r t for the Taubman Center for Public go v d o c s . h t m l . Po l i c y , Brown University. Available at ht t p : / / w w w. b ro w n . e d u / D e p a rt m e n t s / Ge r b e r , Eve. “How Congress Resists the Tau b m a n _ C e n t e r / p o l re p o rt s / Web,” Sl a t e , November 30, 1999. Ava i l a b l e eg o v t 0 1 u s . h t m l . at ht t p : / / w w w. s l a t e . m s n . c o m . n e t e l e c t i o n / en t r i e s / 9 9 - 1 1 - 3 0 _ 5 6 8 0 7 . a s p . Agenda for Access: An initiative of OMB Wat c h that seeks to identify and offer solutions to HearingRoom.com: ht t p : / / w w w . pr oblems in public access to governm e n t he a r i n g ro o m . c o m in f o r mation: ht t p : / / o m b w a t c h . o rg / a 4 a Senator John McCain’s Senate Resolution 21 The Intergo v e r nmental Tec h n o l o g y on “Congressional Openness:” ht t p : / / Leadership Consortium: General res o u rc e s frw e b g a t e . a c c e s s . g p o . g o v / c g i - b i n / g e t - on the use of technology to improve the do c . c g i ? d b n a m e = 1 0 7 _ c o n g _ b i l l s & availability of government Informa t i o n : do c i d = f : s r 2 1 i s . t x t . p d f ht t p : / / w w w. e x c e l g o v. o rg / t e c h c o n / in d e x . h t m FirstGov: ht t p : / / w w w. f i r s t g o v. g o v

78 Saving the Information Commons

Notes

In t ro d u c t i o n Ch a p ter Two 1 See Tom Rosenstiel and Bill Kovach, Warp Speed: America 10 Carl Shapiro and Hal R. Varian, In f o r mation Rules: A in the Age of Mixed Media(New York: Century Strategic Guide to the Network Economy(Cambridge, MA: Foundation Press, 1999). See also, the Project for Ha rv a r d Business School Publishing, 1998), p. 261.

Excellence in Journalism at the Columbia School of 11 The complexities of cooperating versus competing in set- Jo u r nalism; and a series of rep o r ts on journalism and ting technical standards are described in Carl Shapiro society (1998-2001) by David Bollier, published by the and Hal R. Varian, In f o r mation Rules: A Strategic Guide to Aspen Institute’s Communications and Society the Network Economy(Cambridge, MA: Harva r d Pr ogram. Available at Business School Press, 1999), esp. Chapter 8. ht t p : / / w w w. a s p e n i n s t i t u t e . o rg / c & s / p d f s / v a l u e s . p d f . 12 Paul Festa, “Critics Clamor for Web Services Standards , ” CNET News,F e b ru a r y 12, 2002. Available at Ch a p ter One ht t p : / / n e w s . c o m . c o m / 2 1 0 0 - 1 0 2 3 - 8 3 4 9 9 0 . h t m l .

2 Yochai Benkler, “Free as the Air to Common Use: First 13 See World Wide Web Consortium, “Backgrounders for Amendment Constraints on Enclosure of the Public W3C Patent Policy Framework,” August 20, 2001. Domain,” NYU Law Review408(May 1999), p. 408. Available at http://www.w 3 c . o rg / 2 0 0 1 / 0 8 / p a t e n t n e w s .

3 John B. Horrigan, “Online Communities: Networks 14 The Electronic Privacy and Information Center (EPIC) That Nurtu r e Long-Distance Relationships and Local outlined these privacy concerns in a letter to FTC Ties,” rep o r t for the Pew Internet & American Life Ch a i r man Timothy Muris on October 23, 2001. Pr oject, October 31, 2001. Available at Available at http://www.e p i c . o rg / p r i v a c y / c o n s u m e r / ht t p : / / w w w. p e w i n t e rn e t . o rg . MS_complaint.pdf and http://www.e p i c . o rg / p r i v a c y / 4 “To w a r d a Framework for Internet Accountability,” rep o r t consumer/MS_complaint2.pdf. See also for The Markle Foundation, 2001, p. i. ht t p : / / w w w. e p i c . o rg / p r i v a c y / c o n s u m e r / m i c ro s o f t .

5 See Lawrence Lessig, Code and Other Laws of Cyberspace 15 La w r ence Lessig, “Innovation, Regulation and the (New York, NY: Basic Books, 1999) and The Future of In t e r net,” American Pros p e c ,t vol. 11 no. 10, March 27, Ideas: The Fate of the Commons in a Connectedor l dW 2000. Available at http://www.p ro s p e c t . o rg / p r i n t (New York, NY: Random House, 2001). /V 1 1 / 1 0 / l e s s i g - l . h t m l .

6 Yochai Benkler, “Coase’s Penguin, or Linux and the 16 Patricia Aufderheide, “Walled Gardens of Enclosure Na t u r e of the Firm,” paper presented at the Duke Movement? The Debate Over the Public Interest in the University Law School Conference on the Public AOL Time War ner Merge r ,” paper presented at the Domain, November 9-11, 2001. In t e r national Communication Association conferen c e ,

7 Joel Garreau, “Flocking Together Through the Web,” May 27-28, 2001, p. 16. The Washington Post, May 9, 2001. 17 La w r ence Lessig, “The Future of Ideas: The Fate of the

8 Cited in Yochai Benkler, “Coase’s Penguin, or Linux and Commons in a Connectedo Wr l d ” (New York, NY: the Nature of the Firm,” paper presented at the Duke Random House, 2001). University Law School Conference on the Public 18 Associated Press v. United States, 326 U.S. 1, 20 (1945).

Domain, November 9-11, 2001. 19 Gene Kimmelman, Testimony before the Senate 9 Jonathan Burton, “Peer-to-Peer Grows Up and Gets a Committee on Commerce, Science and Tra n s p o rt a t i o n , Real Job,” The New York Times,June 13, 2001. on Media Consolidation,” July 17, 2001.

79 Notes

20 The news bias of the broadcast networks in covering their Ch a p ter Three corporate parents has been a long-standing journa l i s t i c 25 La w r ence Lessig, The Future of Ideas: The Fate of the criticism, periodically confirmed by fresh examples. See Commons in a Connectedo Wr l d (New York, NY: Random Elizabeth Lesly Stevens, “Mouse-ke-fear,” Br i l l ’ s Content, House, 2001), p. 250-251. December 1998/January 1999, pp. 94-103; Jake Sexton, 26 “Plutocracy and Plutonium: A Case Study of Ownership La w r ence Lessig, The Future of Ideas: The Fate of the Bias in Broadcast News,” which is available at Commons in a Connectedo Wr l d (New York, NY: Random ht t p : / / w w w. a s c . u p e n n . e d u / u s r / j s e x t o n / N e w s Wa t c h / House, 2001), pp. 330-331. Essays/cassini.htm. See also, “We Paid $3 Billion For 27 La w r ence Lessig, The Future of Ideas: The Fate of the These Stations. We’ll Decide What the News Is,” Commons in a Connectedo Wr l d (New York, NY: Random E x t r a !U p d a t e, June 1998. Available at House, 2001), pp. 249-250. ht t p : / / w w w. f a i r. o r g/extra/9806/foxbgh.html. 28 La w r ence Lessig, The Future of Ideas: The Fate of the 21 “O f f the Record: What Media Corporations Don’t Tel l Commons in a Connectedo Wr l d (New York, NY: Random You About Their Legislative Agendas,” rep o r t for the House, 2001), p. 252. Center for Public Integrity, 2000. 29 Cited in Robert S. Gree n b e rg e r , “High Court Agrees to 22 Ro b e r t W. McChesney and John Nichols, “The Making Review Extension of Copyright Shield,” The Wall Stree t of a Movement: Getting Serious About Media Reform, ” Jo u rn a l , Februa r y 20, 2002. The Nation, January 7/14, 2002, pp. 11-17. See also, 30 David Lange and Jennifer Lange Anderson, “Copyright, Ro b e r t W. McChesney, “Policing the Thinkable,” Op e n Fair Use and Tra n s f o r mative Critical Approp r i a t i o n , ” De m o c r a c ,y October 25, 2001. Available at paper presented at Duke University Law School ht t p : / / w w w. o p e n d e m o c r a c y. n e t / F o ru m / d o c u m e n t _ Co n f e r ence on the Public Domain, November 9-11, de t a i l s . a s p ? C a t I D = 5 & D o c I D = 7 5 4 . 2001. 23 Minority and female ownership of media outlets is 31 Julie E. Cohen, “Copyright and the Perfect Curve,” 53 remarkably small. In 2000, just 175 minority broa d c a s t - Vanderbilt Law Review(November 2000). ers owned 426 stations, or about 4 percent of America’s 32 A. Michael Froomkin, “The Collision of Tra d e m a r k s , 10,577 commercial radio stations, and just 23 owned Domain Names and Due Process in Cyberspace,” full-power commercial television stations, or about Communications of the ACM, Februa r y 2001, pp. 91-97. 1.9% of the country’ s 1,288 TV outlets. See, Kevin Taglang, “Still Charting the Digital Broa d c a s t i n g 33 Kate Silver, “Serving Up the McDictionary,” Las Veg a s Fu t u r e: An Update on the State of the DTV Wee k l y , May 29, 2001. Available at Transition,” Digital Voi c e ,s December, 19, 2001. ht t p : / / w w w. a l t e rn e t . o r g. See also, Michael Manoochehri, “Black History Makers of Tom o r row ® 24 Ro b e r t W. McChesney and John Nichols. “The Making This Phrase Owned by McDonalds!,” Fr ee Informa t i o n of a Movement: Getting Serious About Media Reform, ” Pro p e r ty Exchange, May 26, 2001. Available at The Nation, January 7/14, 2002, pp. 11-17. ht t p : / / w w w. f re e i p x . o rg .

34 A. Michael Froomkin, “The Collision of Tra d e m a r k s , Domain Names and Due Process in Cyberspace,” Communications of the ACM, Februa r y 2001, pp. 91-97.

35 “ICANN, Legitimacy and the Public Voice: Making Global Participation and Representation Work,” study for NGO and Academic ICANN, August 31, 2001. Available at http://www.n a i s p ro j e c t . o rg / re p o rt / f i n a l .

80 Saving the Information Commons

Ch a p ter Fou r 40 Michael Calabrese, “Battle Over the Airwaves: Principles for Spectrum Policy Reform,” working paper for the 36 Reed Hundt, keynote address at the Conference for the New America Foundation, November 2001, available at Second Century of the University of Pittsburgh School ht t p : / / w w w .newamerica.net. See also, Michael of Law, September 21, 1995. Available at Ca l a b r ese, “Unclog the Wir eless Pipelines,” Th e ht t p : / / w w w. b e n t o n . o rg / P o l i c y / T V / rh u n d t _ Washington Post, August 7, 2001. ne w p a r a d i g m . h t m l . 41 Michael Behar, “The Broadband Militia,” The Was h i n g t o n 37 Michael Calabrese, “The Great Airwaves Robbery,” issue Mo n t h l y , March 2002, available online at brief for the New America Foundation, November ht t p : / / w w w. w a s h i n g t o n m o n t h l y. c o m / f e a t u re s / 2001. Available at http://www.n e w a m e r i c a . n e t . 20 0 1 / 0 2 0 3 . b e h a r .html. See also, Brent Hurti g , 38 Br oadcast news programs were conspicuously silent about “B r oadband Cowboy,” Wire d , January 2002, a profile of the congressional giveaway of the “digital spectrum , ” Dewayne Hendricks effo r t to create an unlicensed wire- for example. See J.H. Snider and Benjamin I. Page, less network on the Chippewa res e r vation. Available at “Does Media Ownership Affect Media Stands? The ht t p : / / w w w. w i re d . c o m / w i re d / a rc h i v e / 1 0 . 0 1 / Case of the Telecommunications Act of 1996,” working he n d r i c k s _ p r. h t m l . paper for the North w e s t e r n University Institute for 42 An excellent overview of the technology and its use as a Policy Research 97-12. See also, J.H. Snider, “The commons can be found in Kevin Werbach, “Open Paradox of News Bias: How Local TV Broa d c a s t e r s Sp e c t r um: The Paradise of the Commons,” Release 1.0, Influence Telecommunications Policy,” paper pres e n t e d November 20, 2001. at the Telecommunications Policy Research Co n f e r ence, September 25, 2000. 43 BBC News, “What if the News was as Free as Air?” Ma r ch 18, 2002. Available at http://news.bbc.co.uk/ 39 He n r y Geller, “Earning a Fair Return on the Public’s hi / e n g l i s h / i n _ d e p t h / s c i _ t e c h / 2 0 0 0 / d o t _ l i f e / Ai r waves: A Proposal for a Spectrum Usage Fee on ne w s i d _ 1 8 7 8 0 0 0 / 1 8 7 8 3 0 9 . s t m . Br oadcasters,” working paper for the New America Foundation, May 2002. An early version of Geller’s idea 44 For a description of the CIO proposal, see Robert is set forth in Henry Geller, “Public Interest Regulation Atkinson and Jacob Ulevich, “Digital Government: The in the Digital TV Era,” 16 Ca r dozo Arts & Next Step to Reengineering the Federal Governm e n t , ” En t e r tainment Law Journa l 2-3 (1998). rep o r t for the Prog r essive Policy Institute, March 2, 2000. Available at http://www.p p i o n l i n e . o rg / p p i _ c i . c f m ? kn l g A re a I D = 1 4 0 & s u b s e c I D = 2 9 0 & c o n t e n t I D = 6 0 6 .

81