Originally published in the Los Angeles Times Book Review, 13 January 2002.
The Final Frontier
A century ago, Frederick Jackson Turner delivered an address on "The Significance of the Frontier in American History" that changed the way America understood itself. Turner cast the frontier's history in a new light, making it a driver of national history and culture, and its closing a cause for alarm. Lawrence Lessig's The Future of Ideas should have been titled "The Significance of the Electronic Frontier in American History." Lessig sees the Internet as harboring a unique character that ac counts for its importance and is now under attack. Like Turner's "Frontier thesis," The Future of Ideas is a dazzlingly inventive work about familiar things. It deserves to change the way we think about the electronic frontier.
In Lessig's world, established corporations use any means to keep challengers down, including rewriting the rules and even outlawing disruptive innovation. But Lessig loves the "creative destruction" of innovation and sees the Internet as a realm in which the right to innovate (the term Microsoft used to brand its defense in the Federal antitrust suit) has been built-in, much as Constitutional rights are guaranteed to citizens.
It isn't obvious that the Internet should have become such a hotbed of creativity. When it was set up in the late 1960s, its purpose was to share data and programs, not to encourage entrepreneurship. For years, the phone system was far more attractive to technological tricksters and "phone phreaks." like John "Captain Crunch" Draper and Apple co- founder Steve Wozniak than the Internet. So why did the Internet become an arena for innovation in the 1990s?
The answer is that the Internet encourages innovation not because it renders traditional media and governments irrelevant, or because of the farsightedness of venture capitalists and because of twentysomething entrepreneurs who "get it" but because it is a commons.
Commons are things available to anyone who obeys the rules governing their use. Streets, highways and parks are commons open to everyone (though law- breakers can be removed). Ideas, languages and works in the public domain are part of a "content commons" and that inspiration and provide raw material for future creative works. The electromagnetic spectrum is a commons.
Commons are easy to comprehend, but their benefits are subtle and far-reaching. They are foundations for private enterprise and individual enrichment. Highways let manufacturers move goods without favoring one competitor over another. No one in the computer industry makes money off technical standards, but no one could make money without them. Some commons are finite– highways jam, parks crowd– but others become more valuable with use, not less: everyone owns Shakespeare because no one does.
As Lessig tells it, several factors have helped shaped the Internet commons. Its fundamental design -its architecture, as he and computer network designers put it-incorporates two features that shaped its character: First, the Internet was built around a common protocol (the "IP" in TCP/IP) that all computers could use when sending data and it In the 1960s, this let customized, isolated mainframes communicate, but it was used later to bring personal computers online.
Second, the Internet was designed so that the intelligence resided at the edges of the network, not the center. This "end-to-end" architecture is the reverse of the telephone system, in which dumb devices-your phone and fax machine-are connected together by an intelligent network. Some of the Internet's most important programs, like the Linux operating system and Apache Web servers, are non-commercial products developed by volunteers and supported by users.
Together, these commons account for the Inter net's extraordinary value. Anyone who obeys the technical rules can develop software and services that run on it. Just ask HTML inventor Tim Berners- Lee, Netscape cofounder Marc Andressen and Amazon.com founder Jeff Bezos. No application can be excluded for political reasons or protectionism. Success is bestowed by the marketplace, not by government policy or corporate patronage. The phone system couldn't match the Internet's dynamism, not despite its established position and power, but precisely because of them. To paraphrase Stewart Brand, innovation wants to be free.
Lessig's description of the Internet as commons, and his explanation of how public ownership (and sometimes no ownership at all) of resources advances innovation and private enterprise, is the most original and important part of "The Power of Ideas." Even those of us familiar with the Microsoft antitrust trial, Napster, open source software and the dot-com explosion will see them in new light after reading this book. (If you've been under a rock for the last five years, this book will get you up to speed.)
But the Internet I've just outlined, programmed to encourage innovation and give newcomers a fair chance, is endangered, Lessig says. "We are remaking cyberspace," he argues, "and these remakings will undermine the innovation we have seen so far." (99)
Like aliens in a video game, the challenges are coming from several directions. The shift from an Internet running off of telecom to broadband running through cable television wires threatens the open architecture of the Internet be cause Cable systems move data far more speedily than conventional telephone wires, but they also move the Internet from a regulatory environment that demanded openness and neutrality to one that does not. A cable company can design its system to work best with its own ISP, deny access to competitors or break software from other companies, and it'll all be legal; no phone company could have ever done those things.
Changes in copyright and patent law are also impoverishing the intellectual commons. The Founders recognized that inventors benefit from both ownership and public access to ideas, and wanted to allow authors and publishers to make a living but not exert monopoly control over their works. Copyright originally lasted 14 years; today it can last ten times as long, thanks to efforts by entertainment companies eager to defend their profits against new players, to keep valuable intellectual properties (like Mickey Mouse) out of the public domain, and to leverage their power in new arenas. Patent applicants traditionally have to reveal how their inventions worked, thereby allowing others to understand and extend the state of the art. But you can patent software with out revealing the source code that would make it comprehensible to humans. The notion of "fair use" of copyrighted materials for research and scholarly purposes is under attack as publishers work to develop technology to gain ever more perfect control over how content is distributed and used.
All of these developments bring us closer to the mercantilist economics of the 17th century, with its belief in the need for government-guaranteed monopolies, state-sanctioned trade secrets and perpetual copyright, than to modern capitalism. According to Lessig, they all threaten the open Internet, technological innovation, and creative expression.
They are part of a bigger story about the changing values of ideas and property rights. Cultural institutions like museums have jumped into the deep waters of the marketplace, in search of new riches or re placement for lost funding government and foundation funds. Hardly any major art museum today lacks a well-stocked gift shop and well-armed rights management office.
Even more dramatically, universities have mutated from dreamy spires into incubators of companies and products, thanks to rules allowing them to privatize discoveries made with public funds. Top schools now work aggressively to extract value from their intellectual assets and encourage faculty to start companies. (Today, half the faculty in Stanford's Computer Science department are reported to be millionaries, a demographic phenomenon without precedent in the history of academia.) Even liberal arts professors dream of leveraging course Web sites into distance- learning enterprises or multimedia CDs, or reaping the financial rewards of being a public intellectual.
"The Future of Ideas" concludes by with proposals defending the digital commons against further erosion. Given that we live in a world in which all kinds of intellectual work are being fenced off and sold, do his ideas stand a chance? Lessig is pessimistic, but the last 20 years have seen some remarkable experiments in public policy inspired by iconoclastic academics and thinkers. Each party has its own court intellectuals, but programs as diverse as spectrum auctions, pollution commodities trading, community policing have won true bipartisan support. This makes me think that Lessig's ideas could provide a foundation for real action.
The fact that Lessig himself is difficult to pin down ideologically may help the cause. He clerked for Richard Posner and Supreme Court justice Antonin Scalia, yet reads as if he absorbed more of the former's intellectual curiosity, and the latter's intellectual combativeness, than either's politics.
And perhaps the zeitgeit is shifting Lessig's way. Recent polls suggest that Americans have more respect for the government and public services, and few politicians would say they were declare themselves against innovation and for special interests. It might be impossible now to recover America's original great commons, the first frontier, but perhaps the electronic one still has a chance. But the history of America's original great commons, the first frontier, offers a caution. Today, the depopulation of the rural Midwest has left us with more uninhabited land than a century ago, but recovering the "frontier" is an impossibility. We should take care not to close our electronic frontier.