BENKLER.DOC 10/10/03 9:37 AM Lecture FREEDOM IN THE COMMONS: TOWARDS A POLITICAL ECONOMY OF INFORMATION YOCHAI BENKLER† I. A MOMENT OF OPPORTUNITY In 1999, George Lucas released a bloated and much maligned “prequel” to the Star Wars Trilogy, called The Phantom Menace. In 2001, a disappointed Star Wars fan made a more tightly cut version, which almost eliminated a main sidekick called Jar-Jar Binks and sub- tly changed the protagonist—rendering Anakin Skywalker, who was destined to become Darth Vader, a much more somber child than the movie had originally presented. The edited version was named “The Phantom Edit.” Lucas was initially reported amused, but later clamped down on distribution.1 It was too late. The Phantom Edit had done something that would have been unimaginable a decade earlier. One creative individual took Hollywood’s finished product as raw material and extracted from within it his own film. Some, at least, thought it was a better film. Passed from one person to another, the film became a samizdat cultural object in its own right. The Phantom Edit epitomizes both the challenge and the prom- ise of what has variously been called “the new economy,” “the infor- mation economy,” or, more closely tied to the recent technological perturbation, “the Internet economy.” It tells us of a hugely success- ful company threatened by one creative individual—a fan, not an en- emy. It tells us of the tremendous potential of the Internet to liberate Copyright © 2003 by Yochai Benkler. This Article is released under the Public Library of Sci- ence Open-Access License and the Creative Commons Attribution License. † Professor of Law, Yale Law School. The lecture was originally delivered as the Second Annual Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School on March 26, 2002. I am indebted to Jamie Boyle, David Lange, and Jerry Reichman for inviting me to give the lecture and for their thoughtful comments. I am also indebted to Bruce Ackerman, Ed Baker, Jack Balkin, and Owen Fiss for their comments on the written version. 1. Richard Fausset, A Phantom Menace?, L.A. TIMES, June 1, 2002, Part 6 (Calendar), at 1; J. Hoberman, I Oughta Be In Pictures, N.Y. TIMES, July 15, 2001, § 6 (Magazine), at 13. BENKLER.DOC 10/10/03 9:37 AM 1246 DUKE LAW JOURNAL [Vol. 52:1245 individual creativity and enrich social discourse by thoroughly democ- ratizing the way we produce information and culture. And it tells us how powerful proprietors can weigh in to discipline this unruly crea- tivity; to silence the many voices it makes possible. In this Lecture, I want to outline two fundamental social aspects of the emerging economic-technological condition of the networked information economy: the economic—concerned with the organiza- tion of production and consumption in this economy, and the politi- cal—concerned with how we pursue autonomy, democracy, and social justice in this new condition. We have seen over the past few years glimpses of this emerging economy and of its emerging political im- plications. We have seen the surprising growth of free software, an oasis of anarchistic production that is beating some of the world’s richest corporations at their own game—making reliable high-quality software.2 We have seen a Russian computer programmer jailed for weeks in the United States pending indictment for writing software that lets Americans read books that they are not allowed to read.3 These and many other stories sprinkled throughout the pages of the technology sections of our daily newspapers hint at a deep transfor- mation that is taking place, and at an epic battle over how this trans- formation shall go and who will come out on top when the dust set- tles. Let us, then, talk about this transformation. Let us explore the challenge that the confluence of technological and economic factors has presented for the liberal democratic societies of the world’s most advanced market economies. Let us think about how we might under- stand the stakes of this transformation in terms of freedom and jus- tice. In a nutshell, in the networked information economy—an econ- omy of information, knowledge, and culture that flow through society over a ubiquitous, decentralized network—productivity and growth can be sustained in a pattern that differs fundamentally from the in- dustrial information economy of the twentieth century in two crucial characteristics. First, nonmarket production—like the Phantom Edit, produced by a fan for the fun of it—can play a much more important 2. For a good general history of the emergence of free software, see generally GLYN MOODY, REBEL CODE: [THE INSIDE STORY OF LINUX AND THE OPEN SOURCE REVOLUTION] (2001). 3. Amy Harmon, New Visibility for 1998 Copyright Protection Law, with Online Enthusi- asts Confused and Frustrated, N.Y. TIMES, Aug. 13, 2001, at C4. BENKLER.DOC 10/10/03 9:37 AM 2003] FREEDOM IN THE COMMONS 1247 role than it could in the physical economy. Second, radically decen- tralized production and distribution, whether market-based or not, can similarly play a much more important role. Again, the Phantom Edit is an example of such decentralized production—produced by one person rather than by a corporation with a chain of command and an inventory of property and contract rights to retain labor, capital, finance, and distribution outlets. In both these ways, the networked information economy can be more open and admit of many more di- verse possibilities for organizing production and consumption than could the physical economy. As free software has shown us, these modes of production are not a plaything. Most of what we do on the Internet runs on software produced by tens of thousands of volun- teers, working together in a way that is fundamentally more closely related to the fan who wrote the Phantom Edit than to the LucasArts Entertainment Company. None of this is to say that nonmarket and decentralized produc- tion will completely displace firms and markets. That is not the point. The point is that the networked information economy makes it possi- ble for nonmarket and decentralized models of production to increase their presence alongside the more traditional models, causing some displacement, but increasing the diversity of ways of organizing pro- duction rather than replacing one with the other. This diversity of ways of organizing production and consumption, in turn, opens a range of new opportunities for pursuing core political values of liberal societies—democracy, individual freedom, and social justice. These values provide three vectors of political morality along which the shape and dimensions of any liberal society can be plotted. Because, however, they are often contradictory rather than comple- mentary, the pursuit of each of these values places certain limits on how we conceive of and pursue the others, leading different liberal societies to respect them in different patterns. It would be difficult, for example, to say whether the United States or Germany is more “liberal,” though we could coherently say that Germany respects so- cial justice more than the United States and that the United States re- spects individual autonomy more than Germany. It would also be fairly simple to say that both are more “liberal” along all three di- mensions than, say, Saudi Arabia. An underlying efficient limit on how we can pursue any mix of arrangements to implement our commitments to democracy, auton- omy, and equality, however, has been the pursuit of productivity and growth. As the great ideological divides of the nineteenth and twenti- BENKLER.DOC 10/10/03 9:37 AM 1248 DUKE LAW JOURNAL [Vol. 52:1245 eth centuries seem to fade, we have come to toil in the fields of politi- cal fulfillment under the limitation that we should not give up too much productivity in pursuit of these values. Singapore is perhaps an extreme example of this tradeoff, but all nations with advanced capi- talist economies are making some such tradeoff. Predictions of how well we will be able to feed ourselves are a central consideration in thinking about whether, for example, to democratize wheat produc- tion or to make it more egalitarian. Much though some may value the political vision of the yeoman farmer, we have not been willing to abandon the economies of scale captured by agribusiness. Efforts to advance workplace democracy have also often foundered on the shoals—real or imagined—of these limits, as have many plans for re- distribution in the name of social justice. Market-based production has often seemed simply too productive to tinker with. The most advanced economies have now made two parallel shifts that attenuate the limitations that market-based production places on the pursuit of core liberal political values. The first move, in the making for over a century, is the move to the information economy— an economy centered on information (financial services, accounting, software, science) and cultural (films, music) production, and the ma- nipulation of symbols (e.g., from making sneakers to branding them and manufacturing the cultural significance of the Swoosh). The sec- ond move, of more recent vintage, is the move to a communications environment built on cheap processors with high computation capa- bilities, interconnected in a pervasively networked environment—the phenomenon we associate with the Internet. This second shift allows nonmarket production to play an increasing role in the information and cultural production sector, organized in a radically more decen- tralized pattern than was true of this sector in the twentieth century. The first shift means that the surprising patterns of production made possible by the networked environment—both nonmarket and radi- cally decentralized—will emerge, if permitted to emerge, at the core, rather than at the periphery, of the most advanced economies.