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Chapter 1. Introduction: A Moment of Opportunity and Challenge
Information, knowledge, and culture are central to human freedom and human development.
It seems passé today to speak of "the Internet revolution."
The change brought about by the networked information environment is deep.
A series of changes in the technologies, economic organization, and social practices of production in this environment has created new opportunities for how we make and exchange information, knowledge, and culture.
The rise of greater scope for individual and cooperative nonmarket production of information and culture, however, threatens the incumbents of the industrial information economy.
The Emergence of the Networked Information Economy
The most advanced economies in the world today have made two parallel shifts that, paradoxically, make possible a significant attenuation of the limitations that market-based production places on the pursuit of the political values central to liberal societies.
It is this second shift that allows for an increasing role for nonmarket production in the information and cultural production sector, organized in a radically more decentralized pattern than was true of this sector in the twentieth century.
The first shift means that these new patterns of production - nonmarket and radically decentralized - will emerge, if permitted, at the core, rather than the periphery of the most advanced economies.
It promises to enable social production and exchange to play a much larger role, alongside property- and market-based production, than they ever have in modern democracies.
The first part of this book is dedicated to establishing a number of basic economic observations.
The core distinguishing feature of communications, information, and cultural production since the mid-nineteenth century was that effective communication spanning the ever-larger societies and geographies that came to make up the relevant political and economic units of the day required ever-larger investments of physical capital.
The rise of the networked, computer-mediated communications environment has changed this basic fact.
The removal of the physical constraints on effective information production has made human creativity and the economics of information itself the core structuring facts in the new networked information economy.
It is easy to miss these changes.
Free software is but one salient example of a much broader phenomenon.
Without a broadly accepted analytic model to explain these phenomena, we tend to treat them as curiosities, perhaps transient fads, possibly of significance in one market segment or another.
Human beings are, and always have been, diversely motivated beings.
In the industrial economy in general, and the industrial information economy as well, most opportunities to make things that were valuable and important to many people were constrained by the physical capital requirements of making them.
In the networked information economy, the physical capital required for production is broadly distributed throughout society.
The result is that a good deal more that human beings value can now be done by individuals, who interact with each other socially, as human beings and as social beings, rather than as market actors through the price system.
Because the presence and importance of nonmarket production has become so counterintuitive to people living in market-based economies at the end of the twentieth century, part I of this volume is fairly detailed and technical; overcoming what we intuitively "know" requires disciplined analysis.
These should provide enough of an intuitive feel for what I mean by the diversity of production strategies for information and the emergence of nonmarket individual and cooperative production, to serve as the basis for the more normatively oriented parts of the book.
The emergence of precisely this possibility and practice lies at the very heart of my claims about the ways in which liberal commitments are translated into lived experiences in the networked environment, and forms the factual foundation of the political-theoretical and the institutional-legal discussion that occupies the remainder of the book.
Networked Information Economy and Liberal, Democratic Societies
How we make information, how we get it, how we speak to others, and how others speak to us are core components of the shape of freedom in any society.
How much a society constrains the democratic decision-making powers of the majority in favor of individual freedom, or to what extent it pursues social justice, have always been attributes that define the political contours and nature of that society.
The emergence of the networked information economy promises to expand the horizons of the feasible in political imagination.
The networked information economy improves the practical capacities of individuals along three dimensions:
This enhanced autonomy is at the core of all the other improvements I describe.
I begin, therefore, with an analysis of the effects of networked information economy on individual autonomy.
These ways in which autonomy is enhanced require a fairly substantive and rich conception of autonomy as a practical lived experience, rather than the formal conception preferred by many who think of autonomy as a philosophical concept.
Democracy: The Networked Public Sphere
The second major implication of the networked information economy is the shift it enables from the mass-mediated public sphere to a networked public sphere.
In chapters 6 and 7, I offer a detailed and updated analysis of this, perhaps the best-known and most contentious claim about the Internet's liberalizing effects.
This power they can either use themselves or sell to the highest bidder.
The empirical and theoretical literature about network topology and use provides answers to all the major critiques of the claim that the Internet improves the structure of the public sphere.
The networked public sphere has also begun to respond to the information overload problem, but without re-creating the power of mass media at the points of filtering and accreditation.
There are two core elements to these developments:
Justice and Human Development
Information, knowledge, and information-rich goods and tools play a significant role in economic opportunity and human development.
From a more substantive and global perspective focused on human development, the freedom to use basic resources and capabilities allows improved participation in the production of information and information-dependent components of human development.
All these efforts are aimed at solving one of the most glaring problems of poverty and poor human development in the global information economy:
A Critical Culture and Networked Social Relations
The networked information economy also allows for the emergence of a more critical and self-reflective culture.
In the past decade, a number of legal scholars - Niva Elkin Koren, Terry Fisher, Larry Lessig, and Jack Balkin - have begun to examine how the Internet democratizes culture.
Following this work and rooted in the deliberative strand of democratic theory, I suggest that the networked information environment offers us a more attractive cultural production system in two distinct ways:
Together, these mean that we are seeing the emergence of a new folk culture - a practice that has been largely suppressed in the industrial era of cultural production - where many more of us participate actively in making cultural moves and finding meaning in the world around us.
These practices make their practitioners better "readers" of their own culture and more self-reflective and critical of the culture they occupy, thereby enabling them to become more self-reflective participants in conversations within that culture.
This also allows individuals much greater freedom to participate in tugging and pulling at the cultural creations of others, "glomming on" to them, as Balkin puts it, and making the culture they occupy more their own than was possible with mass-media culture.
In these senses, we can say that culture is becoming more democratic: self-reflective and participatory.
Throughout much of this book, I underscore the increased capabilities of individuals as the core driving social force behind the networked information economy.
This heightened individual capacity has raised concerns by many that the Internet further fragments community, continuing the long trend of industrialization.
A substantial body of empirical literature suggests, however, that we are in fact using the Internet largely at the expense of television, and that this exchange is a good one from the perspective of social ties.
We use the Internet to keep in touch with family and intimate friends, both geographically proximate and distant.
To the extent we do see a shift in social ties, it is because, in addition to strengthening our strong bonds, we are also increasing the range and diversity of weaker connections.
Following Manuel Castells and Barry Wellman, I suggest that we have become more adept at filling some of the same emotional and context-generating functions that have traditionally been associated with the importance of community with a network of overlapping social ties that are limited in duration or intensity.
Four Methodological Comments
There are four methodological choices represented by the thesis that I have outlined up to this point, and therefore in this book as a whole, which require explication and defense.
Much of the discussion revolves around the choice between markets and nonmarket social behavior.
Liberal political theory must first recognize and understand it before it can begin to renegotiate its agenda for the liberal state, progressive or otherwise.
The Role of Technology in Human Affairs
The first methodological choice concerns how one should treat the role of technology in the development of human affairs.
The idea is simple to explain, and distinct from a naïve determinism.
The Role of Economic Analysis and Methodological Individualism
It should be emphasized, as the second point, that this book has a descriptive methodology that is distinctly individualist and economic in orientation, which is hardly the only way to approach this problem.
Economic Structure in Liberal Political Theory
The third point has to do with the role of economic structure in liberal political theory.
My analysis in this regard is practical and human centric.
By this, I mean to say two things:
Organizations, communities, and other external structures are pervasively necessary for human beings to flourish and to act freely and effectively.
This does mean, however, that I think of these structures only from the perspective of their effects on human beings.
Their value is purely derivative from their importance to the actual human beings that inhabit them and are structured - for better or worse - by them.
As a practical matter, this places concern with market structure and economic organization much closer to the core of questions of freedom than liberal theory usually is willing to do.
Liberals have tended to leave the basic structure of property and markets either to libertarians - who, like Friedrich Hayek, accepted its present contours as "natural," and a core constituent element of freedom - or to Marxists and neo-Marxists.
I treat property and markets as just one domain of human action, with affordances and limitations.
Their presence enhances freedom along some dimensions, but their institutional requirements can become sources of constraint when they squelch freedom of action in nonmarket contexts.
Calibrating the reach of the market, then, becomes central not only to the shape of justice or welfare in a society, but also to freedom.
Whither the State?
The fourth and last point emerges in various places throughout this book, but deserves explicit note here.
What I find new and interesting about the networked information economy is the rise of individual practical capabilities, and the role that these new capabilities play in increasing the relative salience of nonproprietary, often nonmarket individual and social behavior.
In my discussion of autonomy and democracy, of justice and a critical culture, I emphasize the rise of individual and cooperative private action and the relative decrease in the dominance of market-based and proprietary action.
Where in all this is the state?
For the most part, as you will see particularly in chapter 11, the state in both the United States and Europe has played a role in supporting the market-based industrial incumbents of the twentieth-century information production system at the expense of the individuals who make up the emerging networked information economy.
Most state interventions have been in the form of either captured legislation catering to incumbents, or, at best, well-intentioned but wrongheaded efforts to optimize the institutional ecology for outdated modes of information and cultural production.
In the traditional mapping of political theory, a position such as the one I present here - that freedom and justice can and should best be achieved by a combination of market action and private, voluntary (not to say charitable) nonmarket action, and that the state is a relatively suspect actor - is libertarian.
Perhaps, given that I subject to similar criticism rules styled by their proponents as "property" - like "intellectual property" or "spectrum property rights" - it is anarchist, focused on the role of mutual aid and highly skeptical of the state.
(It is quite fashionable nowadays to be libertarian, as it has been for a few decades, and more fashionable to be anarchist than it has been in a century.)
The more modest truth is that my position is not rooted in a theoretical skepticism about the state, but in a practical diagnosis of opportunities, barriers, and strategies for achieving improvements in human freedom and development given the actual conditions of technology, economy, and politics.
I have no objection in principle to an effective, liberal state pursuing one of a range of liberal projects and commitments.
Here and there throughout this book you will encounter instances where I suggest that the state could play constructive roles, if it stopped listening to incumbents for long enough to realize this.
These include, for example, municipal funding of neutral broadband networks, state funding of basic research, and possible strategic regulatory interventions to negate monopoly control over essential resources in the digital environment.
However, the necessity for the state's affirmative role is muted because of my diagnosis of the particular trajectory of markets, on the one hand, and individual and social action, on the other hand, in the digitally networked information environment.
The particular economics of computation and communications; the particular economics of information, knowledge, and cultural production; and the relative role of information in contemporary, advanced economies have coalesced to make nonmarket individual and social action the most important domain of action in the furtherance of the core liberal commitments.
Given these particular characteristics, there is more freedom to be found through opening up institutional spaces for voluntary individual and cooperative action than there is in intentional public action through the state.
Nevertheless, I offer no particular reasons to resist many of the roles traditionally played by the liberal state.
I offer no reason to think that, for example, education should stop being primarily a state-funded, public activity and a core responsibility of the liberal state, or that public health should not be so.
I have every reason to think that the rise of nonmarket production enhances, rather than decreases, the justifiability of state funding for basic science and research, as the spillover effects of publicly funded information production can now be much greater and more effectively disseminated and used to enhance the general welfare.
The important new fact about the networked environment, however, is the efficacy and centrality of individual and collective social action.
In most domains, freedom of action for individuals, alone and in loose cooperation with others, can achieve much of the liberal desiderata I consider throughout this book.
From a global perspective, enabling individuals to act in this way also extends the benefits of liberalization across borders, increasing the capacities of individuals in nonliberal states to grab greater freedom than those who control their political systems would like.
By contrast, as long as states in the most advanced market-based economies continue to try to optimize their institutional frameworks to support the incumbents of the industrial information economy, they tend to threaten rather than support liberal commitments.
Once the networked information economy has stabilized and we come to understand the relative importance of voluntary private action outside of markets, the state can begin to adjust its policies to facilitate nonmarket action and to take advantage of its outputs to improve its own support for core liberal commitments.
The Stakes of It All: The Battle Over the Institutional Ecology of the Digital Environment
No benevolent historical force will inexorably lead this technological-economic moment to develop toward an open, diverse, liberal equilibrium.
If the transformation I describe as possible occurs, it will lead to substantial redistribution of power and money from the twentieth-century industrial producers of information, culture, and communications - like Hollywood, the recording industry, and perhaps the broadcasters and some of the telecommunications services giants - to a combination of widely diffuse populations around the globe, and the market actors that will build the tools that make this population better able to produce its own information environment rather than buying it ready-made.
None of the industrial giants of yore are taking this reallocation lying down.
The technology will not overcome their resistance through an insurmountable progressive impulse.
The reorganization of production and the advances it can bring in freedom and justice will emerge, therefore, only as a result of social and political action aimed at protecting the new social patterns from the incumbents' assaults.
It is precisely to develop an understanding of what is at stake and why it is worth fighting for that I write this book.
I offer no reassurances, however, that any of this will in fact come to pass.
The battle over the relative salience of the proprietary, industrial models of information production and exchange and the emerging networked information economy is being carried out in the domain of the institutional ecology of the digital environment.
In a wide range of contexts, a similar set of institutional questions is being contested:
We see this battle played out at all layers of the information environment: the physical devices and network channels necessary to communicate; the existing information and cultural resources out of which new statements must be made; and the logical resources - the software and standards - necessary to translate what human beings want to say to each other into signals that machines can process and transmit.
Its central question is whether there will, or will not, be a core common infrastructure that is governed as a commons and therefore available to anyone who wishes to participate in the networked information environment outside of the market-based, proprietary framework.
This is not to say that property is in some sense inherently bad.
Property, together with contract, is the core institutional component of markets, and a core institutional element of liberal societies.
It is what enables sellers to extract prices from buyers, and buyers to know that when they pay, they will be secure in their ability to use what they bought.
It underlies our capacity to plan actions that require use of resources that, without exclusivity, would be unavailable for us to use.
But property also constrains action.
The rules of property are circumscribed and intended to elicit a particular datum - willingness and ability to pay for exclusive control over a resource.
They constrain what one person or another can do with regard to a resource; that is, use it in some ways but not others, reveal or hide information with regard to it, and so forth.
These constraints are necessary so that people must transact with each other through markets, rather than through force or social networks, but they do so at the expense of constraining action outside of the market to the extent that it depends on access to these resources.
Commons are another core institutional component of freedom of action in free societies, but they are structured to enable action that is not based on exclusive control over the resources necessary for action.
For example, I can plan an outdoor party with some degree of certainty by renting a private garden or beach, through the property system.
Alternatively, I can plan to meet my friends on a public beach or at Sheep's Meadow in Central Park.
I can buy an easement from my neighbor to reach a nearby river, or I can walk around her property using the public road that makes up our transportation commons.
Each institutional framework - property and commons - allows for a certain freedom of action and a certain degree of predictability of access to resources.
Their complementary coexistence and relative salience as institutional frameworks for action determine the relative reach of the market and the domain of nonmarket action, both individual and social, in the resources they govern and the activities that depend on access to those resources.
Now that material conditions have enabled the emergence of greater scope for nonmarket action, the scope and existence of a core common infrastructure that includes the basic resources necessary to produce and exchange information will shape the degree to which individuals will be able to act in all the ways that I describe as central to the emergence of a networked information economy and the freedoms it makes possible.
At the physical layer, the transition to broadband has been accompanied by a more concentrated market structure for physical wires and connections, and less regulation of the degree to which owners can control the flow of information on their networks.
The emergence of open wireless networks, based on "spectrum commons," counteracts this trend to some extent, as does the current apparent business practice of broadband owners not to use their ownership to control the flow of information over their networks.
Efforts to overcome the broadband market concentration through the development of municipal broadband networks are currently highly contested in legislation and courts.
The single most threatening development at the physical layer has been an effort driven primarily by Hollywood, over the past few years, to require the manufacturers of computation devices to design their systems so as to enforce the copyright claims and permissions imposed by the owners of digital copyrighted works.
Should this effort succeed, the core characteristic of computers - that they are general-purpose devices whose abilities can be configured and changed over time by their owners as uses and preferences change - will be abandoned in favor of machines that can be trusted to perform according to factory specifications, irrespective of what their owners wish.
The primary reason that these laws have not yet passed, and are unlikely to pass, is that the computer hardware and software, and electronics and telecommunications industries all understand that such a law would undermine their innovation and creativity.
At the logical layer, we are seeing a concerted effort, again headed primarily by Hollywood and the recording industry, to shape the software and standards to make sure that digitally encoded cultural products can continue to be sold as packaged goods.
The Digital Millennium Copyright Act and the assault on peer-to-peer technologies are the most obvious in this regard.
More generally information, knowledge, and culture are being subjected to a second enclosure movement, as James Boyle has recently explored in depth.
The freedom of action for individuals who wish to produce information, knowledge, and culture is being systematically curtailed in order to secure the economic returns demanded by the manufacturers of the industrial information economy.
A rich literature in law has developed in response to this increasing enclosure over the past twenty years.
It started with David Lange's evocative exploration of the public domain and Pamela Samuelson's prescient critique of the application of copyright to computer programs and digital materials, and continued through Jessica Litman's work on the public domain and digital copyright and Boyle's exploration of the basic romantic assumptions underlying our emerging "intellectual property" construct and the need for an environmentalist framework for preserving the public domain.
It reached its most eloquent expression in Lawrence Lessig's arguments for the centrality of free exchange of ideas and information to our most creative endeavors, and his diagnoses of the destructive effects of the present enclosure movement.
This growing skepticism among legal academics has been matched by a long-standing skepticism among economists (to which I devote much discussion in chapter 2).
The lack of either analytic or empirical foundation for the regulatory drive toward ever-stronger proprietary rights has not, however, resulted in a transformed politics of the regulation of intellectual production.
Only recently have we begun to see a politics of information policy and "intellectual property" emerge from a combination of popular politics among computer engineers, college students, and activists concerned with the global poor; a reorientation of traditional media advocates; and a very gradual realization by high-technology firms that rules pushed by Hollywood can impede the growth of computer-based businesses.
This political countermovement is tied to quite basic characteristics of the technology of computer communications, and to the persistent and growing social practices of sharing - some, like p2p (peer-to-peer) file sharing, in direct opposition to proprietary claims; others, increasingly, are instances of the emerging practices of making information on nonproprietary models and of individuals sharing what they themselves made in social, rather than market patterns.
These economic and social forces are pushing at each other in opposite directions, and each is trying to mold the legal environment to better accommodate its requirements.
We still stand at a point where information production could be regulated so that, for most users, it will be forced back into the industrial model, squelching the emerging model of individual, radically decentralized, and nonmarket production and its attendant improvements in freedom and justice.
Social and economic organization is not infinitely malleable.
Neither is it always equally open to affirmative design.
The actual practices of human interaction with information, knowledge, and culture and with production and consumption are the consequence of a feedback effect between social practices, economic organization, technological affordances, and formal constraints on behavior through law and similar institutional forms.
These components of the constraints and affordances of human behavior tend to adapt dynamically to each other, so that the tension between the technological affordances, the social and economic practices, and the law are often not too great.
During periods of stability, these components of the structure within which human beings live are mostly aligned and mutually reinforce each other, but the stability is subject to shock at any one of these dimensions.
Sometimes shock can come in the form of economic crisis, as it did in the United States during the Great Depression.
Often it can come from an external physical threat to social institutions, like a war.
Sometimes, though probably rarely, it can come from law, as, some would argue, it came from the desegregation decision in Brown v. Board of Education.
Sometimes it can come from technology; the introduction of print was such a perturbation, as was, surely, the steam engine.
The introduction of the high-capacity mechanical presses and telegraph ushered in the era of mass media.
The introduction of radio created a similar perturbation, which for a brief moment destabilized the mass-media model, but quickly converged to it.
In each case, the period of perturbation offered more opportunities and greater risks than the periods of relative stability.
During periods of perturbation, more of the ways in which society organizes itself are up for grabs; more can be renegotiated, as the various other components of human stability adjust to the changes.
To borrow Stephen Jay Gould's term from evolutionary theory, human societies exist in a series of punctuated equilibria.
The periods of disequilibrium are not necessarily long.
A mere twenty-five years passed between the invention of radio and its adaptation to the mass-media model.
A similar period passed between the introduction of telephony and its adoption of the monopoly utility form that enabled only one-to-one limited communications.
In each of these periods, various paths could have been taken.
Radio showed us even within the past century how, in some societies, different paths were in fact taken and then sustained over decades.
After a period of instability, however, the various elements of human behavioral constraint and affordances settled on a new stable alignment.
During periods of stability, we can probably hope for little more than tinkering at the edges of the human condition.
This book is offered, then, as a challenge to contemporary liberal democracies.
We are in the midst of a technological, economic, and organizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society.
How we shall live in this new environment will in some significant measure depend on policy choices that we make over the next decade or so.
To be able to understand these choices, to be able to make them well, we must recognize that they are part of what is fundamentally a social and political choice - a choice about how to be free, equal, productive human beings under a new set of technological and economic conditions.
As economic policy, allowing yesterday's winners to dictate the terms of tomorrow's economic competition would be disastrous.
As social policy, missing an opportunity to enrich democracy, freedom, and justice in our society while maintaining or even enhancing our productivity would be unforgivable.
1. Barry Wellman et al., "The Social Affordances of the Internet for Networked Individualism," JCMC 8, no. 3 (April 2003).
2. Langdon Winner, ed., "Do Artifacts Have Politics?" in The Whale and The Reactor: A Search for Limits in an Age of High Technology (Chicago: University of Chicago Press, 1986), 19-39.
3. Harold Innis, The Bias of Communication (Toronto: University of Toronto Press, 1951). Innis too is often lumped with McLuhan and Walter Ong as a technological determinist. His work was, however, one of a political economist, and he emphasized the relationship between technology and economic and social organization, much more than the deterministic operation of technology on human cognition and capability.
4. Lawrence Lessig, Code and Other Laws of Cyberspace (New York: Basic Books, 1999).
5. Manuel Castells, The Rise of Networked Society (Cambridge, MA, and Oxford: Blackwell Publishers, 1996).