THE INTERNET USDER SIEGE

From: John Smith (d00rway@lycos.com)
Subject: The Internet Under Siege 
Newsgroups: alt.gathering.rainbow
Date: 2002-02-15 14:25:25 PST 


http://www.foreignpolicy.com/issue_novdec_2001/lessig.html

The Internet Under Siege

Who owns the Internet? Until recently, nobody. That's because,
although the Internet was "Made in the U.S.A.," its unique design
transformed it into a resource for innovation that anyone in the world
could use. Today, however, courts and corporations are attempting to
wall off portions of cyberspace. In so doing, they are destroying the
Internet's potential to foster democracy and economic growth
worldwide.

By Lawrence Lessig

The Internet revolution has ended just as surprisingly as it began.
None expected the explosion of creativity that the network produced;
few expected that explosion to collapse as quickly and profoundly as
it has. The phenomenon has the feel of a shooting star, flaring
unannounced across the night sky, then disappearing just as
unexpectedly. Under the guise of protecting private property, a series
of new laws and regulations are dismantling the very architecture that
made the Internet a framework for global innovation.

Neither the appearance nor disappearance of this revolution is
difficult to understand. The difficulty is in accepting the lessons of
the Internet's evolution. The Internet was born in the United States,
but its success grew out of notions that seem far from the modern
American ideals of property and the market. Americans are captivated
by the idea, as explained by Yale Law School professor Carol Rose,
that the world is best managed "when divided among private owners" and
when the market perfectly regulates those divided resources. But the
Internet took off precisely because core resources were not "divided
among private owners." Instead, the core resources of the Internet
were left in a "commons." It was this commons that engendered the
extraordinary innovation that the Internet has seen. It is the
enclosure of this commons that will bring about the Internet's demise.

This commons was built into the very architecture of the original
network. Its design secured a right of decentralized innovation. It
was this "innovation commons" that produced the diversity of
creativity that the network has seen within the United States and,
even more dramatically, abroad. Many of the Internet innovations we
now take for granted (not the least of which is the World Wide Web)
were the creations of "outsiders"-foreign inventors who freely roamed
the commons. Policymakers need to understand the importance of this
architectural design to the innovation and creativity of the original
network. The potential of the Internet has just begun to be realized,
especially in the developing world, where many "real space"
alternatives for commerce and innovation are neither free nor open.

Yet old ways of thinking are reasserting themselves within the United
States to modify this design. Changes to the Internet's original core
will in turn threaten the network's potential everywhere-staunching
the opportunity for innovation and creativity. Thus, at the moment
this transformation could have a meaningful effect, a
counterrevolution is succeeding in undermining the potential of this
network.

The motivation for this counterrevolution is as old as revolutions
themselves. As Niccolò Machiavelli described long before the Internet,
"Innovation makes enemies of all those who prospered under the old
regime, and only lukewarm support is forthcoming from those who would
prosper under the new." And so it is today with us. Those who
prospered under the old regime are threatened by the Internet. Those
who would prosper under the new regime have not risen to defend it
against the old; whether they will is still a question. So far, it
appears they will not.

The Neutral Zone

A "commons" is a resource to which everyone within a relevant
community has equal access. It is a resource that is not, in an
important sense, "controlled." Private or state-owned property is a
controlled resource; only as the owner specifies may that property be
used. But a commons is not subject to this sort of control. Neutral or
equal restrictions may apply to it (an entrance fee to a park, for
example) but not the restrictions of an owner. A commons, in this
sense, leaves its resources "free."

Commons are features of all cultures. They have been especially
important to cultures outside the United States-from communal tenure
systems in Switzerland and Japan to irrigation communities within the
Philippines. But within American intellectual culture, commons are
treated as imperfect resources. They are the object of "tragedy," as
ecologist Garrett Hardin famously described. Wherever a commons
exists, the aim is to enclose it. In the American psyche, commons are
unnecessary vestiges from times past and best removed, if possible.

For most resources, for most of the time, the bias against commons
makes good sense. When resources are left in common, individuals may
be driven to overconsume, and therefore deplete, them. But for some
resources, the bias against commons is blinding. Some resources are
not subject to the "tragedy of the commons" because some resources
cannot be "depleted." (No matter how much we use Einstein's theories
of relativity or copy Robert Frost's poem "New Hampshire," those
resources will survive.) For these resources, the challenge is to
induce provision, not to avoid depletion. The problems of provision
are very different from the problems of depletion-confusing the two
only leads to misguided policies.

This confusion is particularly acute when considering the Internet. At
the core of the Internet is a design (chosen without a clear sense of
its consequences) that was new among large-scale computer and
communications networks. Named the "end-to-end argument" by network
theorists Jerome Saltzer, David Clark, and David Reed in 1984, this
design influences where "intelligence" in the network is placed.
Traditional computer-communications systems located intelligence, and
hence control, within the network itself. Networks were "smart"; they
were designed by people who believed they knew exactly what the
network would be used for.

But the Internet was born at a time when a different philosophy was
taking shape within computer science. This philosophy ranked humility
above omniscience and anticipated that network designers would have no
clear idea about all the ways the network could be used. It therefore
counseled a design that built little into the network itself, leaving
the network free to develop as the ends (the applications) wanted.

The motivation for this new design was flexibility. The consequence
was innovation. Because innovators needed no permission from the
network owner before different applications or content got served
across the network, innovators were freer to develop new modes of
connection. Technically, the network achieved this design simply by
focusing on the delivery of packets of data, oblivious to either the
contents of the packets or their owners. Nor does the network concern
itself that all the packets make their way to the other side. The
network is "best efforts"; anything more is provided by the
applications at both ends. Like an efficient post office (imagine!),
the system simply forwards the data along.

Since the network was not optimized for any single application or
service, the Internet remained open to new innovation. The World Wide
Web is perhaps the best example. The Web was the creation of computer
scientist Tim Berners-Lee at the European Organization for Nuclear
Research (CERN) laboratory in Geneva in late 1990. Berners-Lee wanted
to enable users on a network to have easy access to documents located
elsewhere on the network. He therefore developed a set of protocols to
enable hypertext links among documents located across the network.
Because of end-to-end, these protocols could be layered on top of the
initial protocols of the Internet. This meant the Internet could grow
to embrace the Web. Had the network compromised its commitment to
end-to-end-had its design been optimized to favor telephony, for
example, as many in the 1980s wanted-then the Web would not have been
possible.

This end-to-end design is the "core" of the Internet. If we can think
of the network as built in layers, then the end-to-end design was
created by a set of protocols implemented at the middle layer-what we
might call the logical, or code layer, of the Internet. Below the code
layer is a physical layer (computers and the wires that link them).
Above the code layer is a content layer (material that gets served
across the network). Not all these layers were organized as commons.
The computers at the physical layer are private property, not "free"
in the sense of a commons. Much of the content served across the
network is protected by copyright. It, too, is not "free."

At the code layer, however, the Internet is a commons. By design, no
one controls the resources for innovation that get served across this
layer. Individuals control the physical layer, deciding whether a
machine or network gets connected to the Internet. But once connected,
at least under the Internet's original design, the innovation
resources for the network remained free.

No other large scale network left the code layer free in this way. For
most of the history of telephone monopolies worldwide, permission to
innovate on the telephone platform was vigorously controlled. In the
United States in 1956, AT&T successfully persuaded the U.S. Federal
Communications Commission to block the use of a plastic cup on a
telephone receiver, designed to block noise from the telephone
microphone, on the theory that AT&T alone had the right to innovation
on the telephone network.

The Internet might have remained an obscure tool of government-backed
researchers if the telephone company had maintained this control. The
Internet would never have taken off if ordinary individuals had been
unable to connect to the network by way of Internet service providers
(ISPs) through already existing telephone lines. Yet this right to
connect was not preordained. It is here that an accident in regulatory
history played an important role. Just at the moment the Internet was
emerging, the telephone monopoly was being moved to a different
regulatory paradigm. Previously, the telephone monopoly was
essentially free to control its wires as it wished. Beginning in the
late 1960s, and then more vigorously throughout the 1980s, the
government began to require that the telephone industry behave
neutrally-first by insisting that telephone companies permit customer
premises equipment (such as modems) to be connected to the network,
and then by requiring that telephone companies allow others to have
access to their wires.

This kind of regulation was rare among telecommunications monopolies
worldwide. In Europe and throughout the world, telecommunications
monopolies were permitted to control the uses of their networks. No
requirement of access operated to enable competition. Thus no system
of competition grew up around these other monopolies. But when the
United States broke up AT&T in 1984, the resulting companies no longer
had the freedom to discriminate against other uses of their lines. And
when ISPs sought access to the local Bell lines to enable customers to
connect to the Internet, the local Bells were required to grant access
equally. This enabled a vigorous competition in Internet access, and
this competition meant that the network could not behave strategically
against this new technology. In effect, through a competitive market,
an end-to-end design was created at the physical layer of the
telephone network, which meant that an end-to-end design could be
layered on top of that.

This innovation commons was thus layered onto a physical
infrastructure that, through regulation, had important commons-like
features. Common-carrier regulation of the telephone system assured
that the system could not discriminate against an emerging competitor,
the Internet. And the Internet itself was created, through its
end-to-end design, to assure that no particular application or use
could discriminate against any other innovations. Neutrality existed
at the physical and code layer of the Internet.

An important neutrality also existed at the content layer of the
Internet. This layer includes all the content streamed across the
network-Web pages, MP3s, e-mail, streaming video-as well as
application programs that run on, or feed, the network. These programs
are distinct from the protocols at the code layer, collectively
referred to as TCP/IP (including the protocols of the World Wide Web).
TCP/IP is dedicated to the public domain.

But the code above these protocols is not in the public domain. It is,
instead, of two sorts: proprietary and nonproprietary. The proprietary
includes the familiar Microsoft operating systems and Web servers, as
well as programs from other software companies. The nonproprietary
includes open source and free software, especially the Linux (or
GNU/Linux) operating system, the Apache server, as well as a host of
other plumbing-oriented code that makes the Net run.

Nonproprietary code creates a commons at the content layer. The
commons here is not just the resource that a particular program might
provide-for example, the functionality of an operating system or Web
server. The commons also includes the source code of software that can
be drawn upon and modified by others. Open source and free software
("open code" for short) must be distributed with the source code. The
source code must be free for others to take and modify. This commons
at the content layer means that others can take and build upon open
source and free software. It also means that open code can't be
captured and tilted against any particular competitor. Open code can
always be modified by subsequent adopters. It, therefore, is licensed
to remain neutral among subsequent uses. There is no "owner" of an
open code project.

In this way, and again, parallel to the end-to-end principle at the
code layer, open code decentralizes innovation. It keeps a platform
neutral. This neutrality in turn inspires innovators to build for that
platform because they need not fear the platform will turn against
them. Open code builds a commons for innovation at the content layer.
Like the commons at the code layer, open code preserves the
opportunity for innovation and protects innovation against the
strategic behavior of competitors. Free resources induce innovation.

An Engine of Innovation

The original Internet, as it was extended to society generally, mixed
controlled and free resources at each layer of the network. At the
core code layer, the network was free. The end-to-end design assured
that no network owner could exercise control over the network. At the
physical layer, the resources were essentially controlled, but even
here, important aspects were free. One had the right to connect a
machine to the network or not, but telephone companies didn't have the
right to discriminate against this particular use of their network.
And finally, at the content layer, many of the resources served across
the Internet were controlled. But a crucial range of software building
essential services on the Internet remained free. Whether through an
open source or free software license, these resources could not be
controlled.

This balance of control and freedom produced an unprecedented
explosion in innovation. The power, and hence the right, to innovate
was essentially decentralized. The Internet might have been an
American invention, but creators from around the world could build
upon this network platform. Significantly, some of the most important
innovations for the Internet came from these "outsiders."

As noted, the most important technology for accessing and browsing the
Internet (the World Wide Web) was not invented by companies
specializing in network access. It wasn't America Online (AOL) or
Compuserve. The Web was developed by a researcher in a Swiss
laboratory who first saw its potential and then fought to bring it to
fruition. Likewise, it wasn't existing e-mail providers who came up
with the idea of Web-based e-mail. That was co-created by an immigrant
to the United States from India, Sabeer Bhatia, and it gave birth to
one of the fastest growing communities in history-Hotmail.

And it wasn't traditional network providers or telephone companies
that invented the applications that enabled online chatting to take
off. The original community-based chatting service (ICQ) was the
invention of an Israeli, far from the trenches of network design. His
service could explode (and then be purchased by AOL for $400 million)
only because the network was left open for this type of innovation.

Similarly, the revolution in bookselling initiated by Amazon.com
(through the use of technologies that "match preferences" of
customers) was invented far from the traditional organs of publishers.
By gathering a broad range of data about purchases by customers,
Amazon-drawing upon technology first developed at MIT and the
University of Minnesota to filter Usenet news-can predict what a
customer is likely to want. These recommendations drive sales, but
without the high cost of advertising or promotion. Consequently,
booksellers such as Amazon can outcompete traditional marketers of
books, which may account for the rapid expansion of Amazon into Asia
and Europe.

These innovations are at the level of Internet services. Far more
profound have been innovations at the level of content. The Internet
has not only inspired invention, it has also inspired publication in a
way that would never have been produced by the world of existing
publishers. The creation of online archives of lyrics and chord
sequences and of collaborative databases collecting information about
compact discs and movies demonstrates the kind of creativity that was
possible because the right to create was not controlled.

Again, the innovations have not been limited to the United States.
OpenDemocracy.org, for example, is a London-based, Web-centered forum
for debate and exchange about democracy and governance throughout the
world. Such a forum is possible only because no coordination among
international actors is needed. And it thrives because it can engender
debate at a low cost.

This history should be a lesson. Every significant innovation on the
Internet has emerged outside of traditional providers. The new grows
away from the old. This trend teaches the value of leaving the
platform open for innovation. Unfortunately, that platform is now
under siege. Every technological disruption creates winners and
losers. The losers have an interest in avoiding that disruption if
they can. This was the lesson Machiavelli taught, and it is the
experience with every important technological change over time. It is
also what we are now seeing with the Internet. The innovation commons
of the Internet threatens important and powerful pre-Internet
interests. During the past five years, those interests have mobilized
to launch a counterrevolution that is now having a global impact.

This movement is fueled by pressure at both the physical and content
layers of the network. These changes, in turn, put pressure on the
freedom of the code layer. These changes will have an effect on the
opportunity for growth and innovation that the Internet presents.
Policymakers keen to protect that growth should be skeptical of
changes that will threaten it. Broad-based innovation may threaten the
profits of some existing interests, but the social gains from this
unpredictable growth will far outstrip the private losses, especially
in nations just beginning to connect.

Fencing Off the Commons

The Internet took off on telephone lines. Narrowband service across
acoustic modems enabled millions of computers to connect through
thousands of ISPs. Local telephone service providers had to provide
ISPs with access to local wires; they were not permitted to
discriminate against Internet service. Thus the physical platform on
which the Internet was born was regulated to remain neutral. This
regulation had an important effect. A nascent industry could be born
on the telephone wires, regardless of the desires of telephone
companies.

But as the Internet moves from narrowband to broadband, the regulatory
environment is changing. The dominant broadband technology in the
United States is currently cable. Cable lives under a different
regulatory regime. Cable providers in general have no obligation to
grant access to their facilities. And cable has asserted the right to
discriminate in the Internet service it provides.

Consequently, cable has begun to push for a different set of
principles at the code layer of the network. Cable companies have
deployed technologies to enable them to engage in a form of
discrimination in the service they provide. Cisco, for example,
developed "policy-based routers" that enable cable companies to choose
which content flows quickly and which flows slowly. With these, and
other technologies, cable companies will be in a position to exercise
power over the content and applications that operate on their
networks.

This control has already begun in the United States. ISPs running
cable services have exercised their power to ban certain kinds of
applications (specifically, those that enable peer-to-peer service).
They have blocked particular content (advertising from competitors,
for example) when that content was not consistent with their business
model. The model for these providers is the model of cable television
generally-controlling access and content to the cable providers' end.

The environment of innovation on the original network will change
according to the extent that cable becomes the primary mode of access
to the Internet. Rather than a network that vests intelligence in the
ends, the cable-dominated network will vest an increasing degree of
intelligence within the network itself. And to the extent it does
this, the network will increase the opportunity for strategic behavior
in favor of some technologies and against others. An essential feature
of neutrality at the code layer will have been compromised, reducing
the opportunity for innovation worldwide.

Far more dramatic, however, has been the pressure from the content
layer on the code layer. This pressure has come in two forms. First,
and most directly related to the content described above, there has
been an explosion of patent regulation in the context of software.
Second, copyright holders have exercised increasing control over new
technologies for distribution.

The changes in patent regulation are more difficult to explain, though
the consequence is not hard to track. Two decades ago, the U.S. Patent
Office began granting patents for software-like inventions. In the
late 1990s, the court overseeing these patents finally approved the
practice and approved their extension to "business methods." The
European Union (EU), meanwhile, initially adopted a more skeptical
attitude toward software patents. But pressure from the United States
will eventually bring the EU into alignment with American policy.

In principle, these patents are designed to spur innovation. But with
sequential and complementary innovation, little evidence exists that
suggests such patents will do any good, and there is increasing
evidence that they will do harm. Like any regulation, patents tax the
innovative process generally. As with any tax, some firms-large rather
than small, U.S. rather than foreign-are better able to bear that tax
than others. Open code projects, in particular, are threatened by this
trend, as they are least able to negotiate appropriate patent
licenses.

The most dramatic restrictions on innovation, however, have come at
the hands of copyright holders. Copyright is designed to ensure that
artists control their "writings" for a limited time. The aim is to
secure to copyright holders a sufficient interest to produce new work.
But copyright laws were crafted in an era long before the Internet.
And their effect on the Internet has been to transfer control over
innovation in distribution from many innovators to a concentrated few.

The clearest example of this effect is online music. Before the
Internet, the production and distribution of music had become
extraordinarily concentrated. In 2000, for example, five companies
controlled 84 percent of music distribution in the world. The reasons
for this concentration are many-including the high costs of
promotion-but the effect of concentration on artist development is
profound. Very few artists make any money from their work, and the few
that do are able to do so because of mass marketing from record
labels. The Internet had the potential to change this reality. Both
because the costs of distribution were so low, and because the network
also had the potential to significantly lower the costs of promotion,
the cost of music could fall, and revenues to artists could rise.

Five years ago, this market took off. A large number of online music
providers began competing for new ways to distribute music. Some
distributed MP3s for money (eMusic.com). Some built technology for
giving owners of music easier access to their music (mp3.com). And
some made it much easier for ordinary users to "share" their music
with other users (Napster). But as quickly as these companies took
off, lawyers representing old media succeeded in shutting them down.
These lawyers argued that copyright law gave the holders (some say
hoarders) of these copyrights the exclusive right to control how they
get used. American courts agreed.

To keep this dispute in context, we should think about the last
example of a technological change that facilitated a much different
model for distributing content: cable TV, which has been accurately
hailed as the first great Napster. Owners of cable television systems
essentially set up antenna and "stole" over-the-air broadcasts and
then sold that "stolen property" to their customers. But when U.S.
courts were asked to stop this "theft," they refused. Twice the U.S.
Supreme Court held that this use of someone else's copyrighted
material was not inconsistent with copyright law.

When the U.S. Congress finally got around to changing the law, it
struck an importantly illustrative balance. Congress granted copyright
owners the right to compensation from the use of their material on
cable broadcasts, but cable companies were given the right to
broadcast the copyrighted material. The reason for this balance is not
hard to see. Copyright owners certainly are entitled to compensation
for their work. But the right to compensation shouldn't translate into
the power to control innovation. Rather than giving copyright holders
the right to veto a particular new use of their work (in this case,
because it would compete with over-the-air broadcasting), Congress
assured copyright owners would get paid without having the power to
control-compensation without control.

The same deal could have been struck by Congress in the context of
online music. But this time, the courts did not hesitate to extend
control to the copyright holders. So the concentrated holders of these
copyrights were able to stop the deployment of competing distributors.
And Congress was not motivated to respond by granting an equivalent
compulsory right. The aim of the recording company's strategy was
plain enough: shut down these new and competing models of distribution
and replace them with a model for distributing music online more
consistent with the traditional model.

This trend has been supported by the actions of Congress. In 1998,
Congress passed the Digital Millennium Copyright Act (DMCA), which
(in)famously banned technologies designed to circumvent copyright
protection technologies and also created strong incentives for ISPs to
remove from their sites any material claimed to be a violation of
copyright.

On the surface both changes seem sensible enough. Copyright protection
technologies are analogous to locks. What right does anyone have to
pick a lock? And ISPs are in the best position to assure that
copyright violations don't occur on their Web sites. Why not create
incentives for them to remove infringing copyrighted material?

But intuitions here mislead. A copyright protection technology is just
code that controls access to copyrighted material. But that code can
restrict access more effectively (and certainly less subtly) than
copyright law does. Often the desire to crack protection systems is
nothing more than a desire to exercise what is sometimes called a
fair-use right over the copyrighted material. Yet the DMCA bans that
technology, regardless of its ultimate effect.

More troubling, however, is that the DMCA effectively bans this
technology on a worldwide basis. Russian programmer Dimitry Sklyarov,
for example, wrote code to crack Adobe's eBook technology in order to
enable users to move eBooks from one machine to another and to give
blind consumers the ability to "read" out loud the books they
purchased. The code Sklyarov wrote was legal where it was written, but
when it was sold by his company in the United States, it became
illegal. When he came to the United States in July 2001 to talk about
that code, the FBI arrested him. Today Sklyarov faces a sentence of 25
years for writing code that could be used for fair-use purposes, as
well as to violate copyright laws.

Similar trouble has arisen with the provision that gives ISPs the
incentive to take down infringing copyrighted material. When an ISP is
notified that material on its site violates copyright, it can avoid
liability if it removes the material. As it doesn't have any incentive
to expose itself to liability, the ordinary result of such
notification is for the ISP to remove the material. Increasingly,
companies trying to protect themselves from criticism have used this
provision to silence critics. In August 2001, for example, a British
pharmaceutical company invoked the DMCA in order to force an ISP to
shut down an animal rights site that criticized the British company.
Said the ISP, "It's very clear [the British company] just wants to
shut them up," but ISPs have no incentive to resist the claims.

In all these cases, there is a common pattern. In the push to give
copyright owners control over their content, copyright holders also
receive the ability to protect themselves against innovations that
might threaten existing business models. The law becomes a tool to
assure that new innovations don't displace old ones-when instead, the
aim of copyright and patent law should be, as the U.S. Constitution
requires, to "promote the progress of science and useful arts."

These regulations will not only affect Americans. The expanding
jurisdiction that American courts claim, combined with the push by the
World Intellectual Property Organization to enact similar legislation
elsewhere, means that the impact of this sort of control will be felt
worldwide. There is no "local" when it comes to corruption of the
Internet's basic principles. As these changes weaken the open source
and free software movements, countries with the most to gain from a
free and open platform lose. Those affected will include nations in
the developing world and nations that do not want to cede control to a
single private corporation. And as content becomes more controlled,
nations that could otherwise benefit from vigorous competition in the
delivery and production of content will also lose. An explosion of
innovation to deliver MP3s would directly translate into innovation to
deliver telephone calls and video content. Lowering the cost of this
medium would dramatically benefit nations that still suffer from weak
technical infrastructures.

Policymakers around the world must recognize that the interests most
strongly protected by the Internet counterrevolution are not their
own. They should be skeptical of legal mechanisms that enable those
most threatened by the innovation commons to resist it. The Internet
promised the world-particularly the weakest in the world-the fastest
and most dramatic change to existing barriers to growth. That promise
depends on the network remaining open to innovation. That openness
depends upon policy that better understands the Internet's past.

Lawrence Lessig is professor of law at Stanford University. He is
author of The Future of Ideas: The Fate of the Commons in the
Connected World (New York: Random House, 2001) and Code and Other Laws
of Cyberspace (New York: Basic Books, 1999).