January 5, 2007  ·  Lessig


So I’m looking for some examples of sites or companies that fit this particular way of carving up the world. This matrix builds upon stuff I’ve been talking about. But to be clear, let me begin by defining the categories:

RO v. RW environments

This is a distinction between the primary use intended for creative work that the site makes available. It answers the question: “What can you do with the content on this site?”

RO means the primary use intended is “read only” — the content is offered for the purpose of consumption; there’s no invitation to add content back, or to modify the content offered.

RW means the primary use intended is “read/write” — the content is offered in a way that invites others to add or modify the content that is offered. RW sites can be more or less RW: some invite contributions to the site without permitting modification of content offered.

Commercial v. Sharing environments

This is distinction between the objectives of the site. It is a fuzzy distinction, but the core difference is this:

Commercial sites aim primarily to make money. They are usually run by commercial enterprises, and they measure their success in financial terms.

Sharing sites are not aimed primarily at making money. It’s not that creators and users of these sites are communists. It’s just that creators and users of these sites do things other than (try to) make money at least part of the day. Think of the Wall Street mogul who teaches Sunday School (and there are these).

Maybe the best way to feel the distinction between a sharing and commercial site is to imagine the role of money in each: There’s nothing weird about the owner of a commercial site offering her employees more money in exchange for more work. There would be something very weird in our Wall Street mogul trying to opt out of Sunday School one week by offering each of the kids $50. Money is normal in one context; it is out of place in the other.

It’s fairly easy to build a list of examples of each of these four categories. I’ve done that here.

But what I’m particularly interested in is the combination of these two distinctions — the matrix above. I’d be grateful for more examples to fit within each of these four boxes. I’ve built a stub for that list here.

Now obviously, this is social space, not logical space, so the matrix does not describe everything. And indeed, the most interesting category I’m keen to explore are hybrids between commercial and sharing sites — plainly commercial organizations that try to exploit (in the best sense of that term) a sharing economy. The key to success with the hybrid is to exploit without poisoning the sharing community. Linux is the most familiar example of this: Sharing economy motives push many, perhaps most, to contribute; but plainly commercial entities (RedHat, IBM) are trying to exploit that sharing economy.

I’ve got a stub to collect examples of hybrids here, with a bit more explanation about what they are.

Importantly: My aim here is descriptive, not normative. It is to see a wide range of examples to begin puzzling through what makes the most successful within each work. For these purposes, the only evil is force or fraud, and none of the four kinds I’ve mapped need rely upon either. So please direct the flame wars about good and bad elsewhere.

May 21, 2006  ·  Lessig

So the recent struggles about network neutrality have led me to recognize something I hadn’t quite seen before. And that something in turn makes more puzzling the debates that have been raised around network neutrality.

The something to recognize is that in a fundamental sense, fair use (FU) and network neutrality (NN) are the same thing. They are both state enforced limits on the property rights of others. In both cases, the limits are slight — the vast range of uses granted a copyright holder are only slightly restricted by FU; the vast range of uses allowed a network owner are only slightly restricted by NN. And in both cases, the line defining the limits is uncertain. But in both cases, those who support each say that the limits imposed on the property right are necessary for some important social end (admittedly, different in each case), and that the costs of enforcing those limits are outweighed by the benefits of protecting that social end.

So from this perspective, it is easy to understand those who reject FU and NN (who are they?). And it is easy to understand those who embrace FU and NN. What gets difficult is understanding those who embrace one while rejecting the other — at least when that rejection is articulated in terms of “government regulation.”

For there is a consistency problem for those who embrace FU while arguing against “government regulation to support NN.” For FU and NN are both “government regulations” — each government defined limits on government granted property rights. In both cases, a government official (a court, or the FCC) is telling a property owner “this use of your property is opposed by the state.” And while there are important differences in the way FU and NN get administered, if anything, FU is more vague, more complex, more expensive, and more uncertain than the regulations being called for under NN.

So too are other arguments advanced against NN also available FU. NN opponents say the market will take care of the problem — that people won’t use networks that don’t give them the freedom they want. But the same could be said about copyright — if Madonna’s too restrictive, you could try Lyle Lovett. Some say there’s not a showing of market power with NN sufficient to justify state intervention. But on that standard, could there ever be a justification for FU? Who could possibly have enough culture as to have that amount of market power over culture? And finally, NN opponents say NN would sap the incentives from network owners, and they won’t build fast networks. But again, the same argument is made against FU — that giving up perfect control destroys the incentives of copyright holders. In both cases, the arguments are the same — on the one side, the call for perfect control over a property right; on the other, the demand for some limit in the exercise of a property right.

There’s also a consistency problem of course for those who embrace NN and criticize FU (me, for example). For the reasons I’m critical of FU are exactly the reasons people are fearful of NN. That recognition has helped me understand the nature of the concern about NN. But again, having lived the legal battles over fair use, and watched the regulatory battles over NN(‘s equivalent), I don’t see how anyone can be categorical in embracing FU while rejecting NN.

No doubt, some of those who embrace FU while rejecting NN (or the other way round) do so because the value said to be protected by each is not, in their view, sufficiently strong. That difference wouldn’t raise questions about consistency. It would simply reflect differences in values.

But then let’s hear that debate. Let’s hear people who say competition in applications and content isn’t important. Or that it doesn’t raise issues of free speech. Or whatever other reasons might be advanced to argue that government shouldn’t intervene here. Such arguments would at least be progress in a debate that seems to me so far just stuck in a confusion.

December 29, 2005  ·  Lessig

In this paper, Michael Heller introduced the concept of the “anticommons” — a resource subject to many different “property-like” claims, thus leading to its underutilization. The context was post-Soviet Russia. That context made it sound remote. But the idea was soon domesticated in this paper by Heller and Eisenberg appearing in Science. And then the concept got its most important play in a paper by Nobel Prize winning (and conservative) economist James Buchanan and Yong Yoon, titled Symmetric Tragedies.

That’s all fantastically good theory. Here, however, is the anticommons in practice. There are many more examples like this. I’ll make it a practice of collecting them. Maybe enough examples will get the thick-political types to recognize (as the very much not thick Buchanan recognizes) that the issue of IP reform is not about whether you favor property or not, but whether THE PARTICULAR FORM OF PROPERTY the government has crafted operates efficiently.

(Thanks for the pointer, Tom!)

October 13, 2005  ·  Lessig

So Veni Markovski, source of many many great things, especially in Bulgaria (including cc-Bulgaria), asked me to mention a film, The Optimists, which will debut in New York on October 21st. The film is about the Bulgarian conspiracy to save Jews from concentration camps. Veni says it is a fantastic movie.

(For the record: I don’t do movie recommendations except if they come from Veni. So if you ever want your movie mentioned on my blog, don’t ask me. Ask Veni.)

August 22, 2004  ·  Tim Wu

Doug Lichtman is an information law scholar at University of Chicago and one of the best of our generation (I recommend in particular his information platforms piece). He and I agree on many things, but disagree on some too. And when you boil things down, the differences come down to something simple: our views on timing.

Doug believes that property rights are tantamount to government promises. If, say, government promises to grant patents that last 20 years, it needs to stand by those promises to maintain the credibility of the system, and the incentives to invest in it. So even if someone comes along who might make better use of the patented technology, that’s too bad. To use an old phrase, these are rights that are vested.

Myself, I am inclined toward anoter position: that the question of who “comes to the nuisance” shouldn’t always matter. Imagine someone wanted to open a restaurant next to your house, and that the restaurant is loud and odiferous. On the one hand, we might say that since the restaurant is ruining the value of your property, you ought be allowed to stop it or ask for damages. That seems to make some sense. But we can reverse the question and ask whether are letting you, the homeowner, ruin the business and social value of the restaurant, just because you got there “first.” For yes there is some value to honoring the promises inherent in property rights, but not a value that always transcends looking for the highest use of a given asset.

The translation of this position into copyright and telecom law is simple. In general, copyright owners were already “there,” and the electronics industry and the Internet came, and began ruining an otherwise peaceful existence. Tivo, for example, comes along and wrecks the value of DVDs sales, something the owners of copyright had counted on. Or, more obviously, uncontrolled P2P filesharing wrecks the value of existing copyrights.

In Doug’s view, the government, to preserve incentives, must stand up for the rights it promised, to whomever it promised first. In my view, that promise is always conditional — and if more valuable uses come later, they should sometimes win out (for Constitutional law buffs, think Charles River Bridge). It may be that values stressed in Doug’s position are more compelling for patents (which are after all, much shorter) and mine for copyright. But in general, how you feel about this question can help explain much of how you feel about law and technological change.

(Thanks also to Washington attorney Matthew Schurers, who also formulates the question this way).

August 21, 2004  ·  Tim Wu

Technologists are divided in some ways, but united by a common faith. Stated simply, we worship innovation. Openist, deregulationist, libertarian, or cyber-anarchist all take innovation as deliverance. Our battles are mostly internecine warfare, fights about how best to achieve that common goal.

But how often do we ask ourselves: Why? What is the �end� importance of innovation? Is it more than just liking new stuff? How, if at all, does innovation connect with, say, human happiness?

There are certainly some answers to this last question. Joseph Schumpeter, patron saint to the church, gives among the most important. His idea is that constant innovation, and not price competition is what drives growth under capitalism. While thinking capitalism doomed, he nonetheless recognized as its virtue the �process of industrial mutation … that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one.” So if we believe that economic growth is what makes societies happy, promoting innovation can be this way linked to human ends.

Another view runs like this: we are happier if we have reason to believe that the future will be better than the past. Stated simply, ongoing innovation makes us feel that way. When you read about a possible cure for cancer or that cell phone numbers are now portable, you think, one maybe day we�ll be free of disease, premature death, and cell phone extortion. And that feels nice.

Whether people really are happier now than in Ancient Rome or the Han Dynasty is somewhat irrelevant to this belief. We just want to feel like there is some ideal future out there, which we are slowly drifting toward, even if it is not necessarily attainable in this life.

A third, maybe the most obvious answer, is that the stuff invented, like hair-dryers or the electric toothbrush, makes our lives easier and simpler, and hence happier. That’s convincing, particularly in the field of toiletries, and particularly if you’ve spent any time in the developing world.

But what is still missing — what none of these answers do is ask how valuable innovation is compared with other priorities. At its worst, innovationists can beccome obssessed with change for change’s sake, and addicted to the thrill of the new. Which would be fine, except for these days technology policy and public policy have merged. And Wired magazine is hardly Cicerco. A teenage fascination with new stuff isn’t necessarily so great when the happiness of the many are at issue.

Consider a question that professor Brett Fischman asks his class about the internet, the central monument for innovationists: �What actually makes the Internet valuable to society?�

This question stopped me for awhile. Measured in social value, surely some of the oldest applications, like email, relatively untouched by innovation, produce most of the network’s present social value. Sure, I think VoIP over powerlines would be pretty cool (thanks Adam Thierer). But compared to finding old friends, staying in touch, and everything else that email does, there is no serious comparison. Logic like this suggests that faith in innovation is a faith out of touch with human ends. Perhaps making what is obviously useful � like email � reach more people is more important than constantly reinventing, redestroying, or finally writing the perfect debugger.

I do think the criticisms can be rebutted. Email, after all, was an invention, and required the right environment for it to come about. Innovationists don’t always think about nothing else. But those who share a faith in the importance of innovation should be sure that what we fight hardest for is not just the abstract beauty of new technologies, but ideals that actually have some connection to human ends.

August 17, 2004  ·  Tim Wu

Economists who study government (public choice theorists) have since the 1970s been interested in the “Loser’s Paradox.” Can it help explain the content of our copyright and telecommunications laws?

Economists have noted that a surprising amount of government support goes to ailing sectors instead of expanding sectors. Classically, agriculture, textiles, clothing, footwear, steel and shipbuilding are the examples of industries on perpetual life support. Each has been in decline for decades, yet get more help from Government than any other. Conversely, expanding industries, like the high-tech industry, rarely if ever receive government assistance. In short, economists conclude, Government picks losers.

There are several explanation for why this is. One, associated with economist Anne Kruger, is that governments have an “identity bias” — they care more about people who lose jobs than people who fail to get jobs. Another, from economists Richard E. Baldwin and Fr�d�ric Robert-Nicoud holds that losers don’t fear market entry and so lobby harder. As a consequence, “it is not that government policy picks losers, it is that losers pick government policy.”

That’s the theory. Can the Loser’s paradox help explain the content of the copyright and telecommunications laws? I’ve long thought so. A crucial thing to understand that its not entertainment or communications that are in decline. People are probably willing to spend as much as they ever were to be entertained. Rather, it is specific technlogies or channels of distribution that are threatened– most clearly, the model of the shiny disk. These declining industries that ceaselessly demand, and get, government protection.

So seeing things this way you can appreciate that there’s not much a conceptual difference between something like the Induce Act on the one hand, and the farm subsidies for corn corners on the other. Each case features an industry that desparately wants to slow the arrival of more competitive rivals. And each are in truth, slowly dying industries whose ongoing decay poisions our economy.

August 17, 2004  ·  Tim Wu

So how often do you actually visit sites in other countries? How about in other languages?

If you’re like many users, the answer may “not that often” (apologies to the foreign readers of Lessig Blog). Its a small sign of the Balkanization of the Internet, a process that is happening faster than anyone is noticing. What we once called a global internet is becoming, for many practical purposes, a collection of nation-state networks, still linked by the internet protocol, but for many purposes, separate. Some of the evidence:

– In China, beyond censorship, the amount of actual data flowing in and out as compared to within the country is diminishing. A fairly recent study found 72% of information used to be domestic. And China’s non-IP “169″ intranet — think the AOL walled garden turned into a jungle — is getting nearly as large as the actual Chinese internet. And why not — unlike AOL, its 80% cheaper, and has most of the Chinese content.

– Every-improving geolocation software have made big sites like Google national. As Esther Dyson writes of Google, “Google has now significantly upgraded its geographic targeting. When an advertiser buys an AdWord, it can specify geography, not just by city or region as it can now, but by a radius around a specific address or by specific geographic boundaries.” With that kind of precision, Google can easily cater to distinct national interests.

– Australia is considering a country-wide government filter, designed, for now, to keep out hard-core porn.

– Europe’s privacy laws, and cases like this one, make hosting separate web services for Europe a consideration.

– Amercian IP enforcement, as everyone reading this blog knows, makes shielding content from the U.S. markets make sense. Ditto for Australian libel laws.

– Bandwidth differences are hindering inter-connectivity. Countries like S. Korea are largely broadband, while others are mixed, and still others are primarily narrowband. Its tough for narrowband users to access sites in countries that assume broadband.

That this is happening doesn’t answer whether its a good or bad thing. So good, bad, reversable, inevitable? All this happens also to be the subject of my current book, so I’d love to hear it.

UPDATE: From the Comments
“There is significant irony in term used here – balkanization. … In short, internet is maybe the only thing that has not been balkanized in the Balkans.”
-Veljko Kukulj
“The Balkanization of the internet is one of the great things about it…. A healthy internet is not one where netizens click uninterestedly to sites of all the nations, it�s one where netizens participate.” – Branko Collin
“Right now I�d love to be able to visit the BBCs five live channels of Olympic coverage � but the ip^2 walls are preventing us. That�s an interesting story of balkanization in itself.” – James Howison
“[From China] In fact, the ongoing People�s War against Pornography did not rely that much on technology but on email addresses and phone numbers where concerned citizens could complain.” – Fons Tuinstra