DOKK Library

Freedom in the Commons: Towards a Political Economy of Information

Authors Yochai Benkler

License CC-BY

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                                 YOCHAI BENKLER†

                        I. A MOMENT OF OPPORTUNITY
     In 1999, George Lucas released a bloated and much maligned
“prequel” to the Star Wars Trilogy, called The Phantom Menace. In
2001, a disappointed Star Wars fan made a more tightly cut version,
which almost eliminated a main sidekick called Jar-Jar Binks and sub-
tly changed the protagonist—rendering Anakin Skywalker, who was
destined to become Darth Vader, a much more somber child than the
movie had originally presented. The edited version was named “The
Phantom Edit.” Lucas was initially reported amused, but later
clamped down on distribution. It was too late. The Phantom Edit had
done something that would have been unimaginable a decade earlier.
One creative individual took Hollywood’s finished product as raw
material and extracted from within it his own film. Some, at least,
thought it was a better film. Passed from one person to another, the
film became a samizdat cultural object in its own right.
     The Phantom Edit epitomizes both the challenge and the prom-
ise of what has variously been called “the new economy,” “the infor-
mation economy,” or, more closely tied to the recent technological
perturbation, “the Internet economy.” It tells us of a hugely success-
ful company threatened by one creative individual—a fan, not an en-
emy. It tells us of the tremendous potential of the Internet to liberate

Copyright © 2003 by Yochai Benkler. This Article is released under the Public Library of Sci-
ence Open-Access License and the Creative Commons Attribution License.
      † Professor of Law, Yale Law School. The lecture was originally delivered as the Second
Annual Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School on March
26, 2002. I am indebted to Jamie Boyle, David Lange, and Jerry Reichman for inviting me to
give the lecture and for their thoughtful comments. I am also indebted to Bruce Ackerman, Ed
Baker, Jack Balkin, and Owen Fiss for their comments on the written version.
      1. Richard Fausset, A Phantom Menace?, L.A. TIMES, June 1, 2002, Part 6 (Calendar), at
1; J. Hoberman, I Oughta Be In Pictures, N.Y. TIMES, July 15, 2001, § 6 (Magazine), at 13.
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individual creativity and enrich social discourse by thoroughly democ-
ratizing the way we produce information and culture. And it tells us
how powerful proprietors can weigh in to discipline this unruly crea-
tivity; to silence the many voices it makes possible.
      In this Lecture, I want to outline two fundamental social aspects
of the emerging economic-technological condition of the networked
information economy: the economic—concerned with the organiza-
tion of production and consumption in this economy, and the politi-
cal—concerned with how we pursue autonomy, democracy, and social
justice in this new condition. We have seen over the past few years
glimpses of this emerging economy and of its emerging political im-
plications. We have seen the surprising growth of free software, an
oasis of anarchistic production that is beating some of the world’s
richest corporations at their own game—making reliable high-quality
software. We have seen a Russian computer programmer jailed for
weeks in the United States pending indictment for writing software
that lets Americans read books that they are not allowed to read.
These and many other stories sprinkled throughout the pages of the
technology sections of our daily newspapers hint at a deep transfor-
mation that is taking place, and at an epic battle over how this trans-
formation shall go and who will come out on top when the dust set-
      Let us, then, talk about this transformation. Let us explore the
challenge that the confluence of technological and economic factors
has presented for the liberal democratic societies of the world’s most
advanced market economies. Let us think about how we might under-
stand the stakes of this transformation in terms of freedom and jus-
      In a nutshell, in the networked information economy—an econ-
omy of information, knowledge, and culture that flow through society
over a ubiquitous, decentralized network—productivity and growth
can be sustained in a pattern that differs fundamentally from the in-
dustrial information economy of the twentieth century in two crucial
characteristics. First, nonmarket production—like the Phantom Edit,
produced by a fan for the fun of it—can play a much more important

     2. For a good general history of the emergence of free software, see generally GLYN
     3. Amy Harmon, New Visibility for 1998 Copyright Protection Law, with Online Enthusi-
asts Confused and Frustrated, N.Y. TIMES, Aug. 13, 2001, at C4.
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role than it could in the physical economy. Second, radically decen-
tralized production and distribution, whether market-based or not,
can similarly play a much more important role. Again, the Phantom
Edit is an example of such decentralized production—produced by
one person rather than by a corporation with a chain of command and
an inventory of property and contract rights to retain labor, capital,
finance, and distribution outlets. In both these ways, the networked
information economy can be more open and admit of many more di-
verse possibilities for organizing production and consumption than
could the physical economy. As free software has shown us, these
modes of production are not a plaything. Most of what we do on the
Internet runs on software produced by tens of thousands of volun-
teers, working together in a way that is fundamentally more closely
related to the fan who wrote the Phantom Edit than to the LucasArts
Entertainment Company.
      None of this is to say that nonmarket and decentralized produc-
tion will completely displace firms and markets. That is not the point.
The point is that the networked information economy makes it possi-
ble for nonmarket and decentralized models of production to increase
their presence alongside the more traditional models, causing some
displacement, but increasing the diversity of ways of organizing pro-
duction rather than replacing one with the other.
      This diversity of ways of organizing production and consumption,
in turn, opens a range of new opportunities for pursuing core political
values of liberal societies—democracy, individual freedom, and social
justice. These values provide three vectors of political morality along
which the shape and dimensions of any liberal society can be plotted.
Because, however, they are often contradictory rather than comple-
mentary, the pursuit of each of these values places certain limits on
how we conceive of and pursue the others, leading different liberal
societies to respect them in different patterns. It would be difficult,
for example, to say whether the United States or Germany is more
“liberal,” though we could coherently say that Germany respects so-
cial justice more than the United States and that the United States re-
spects individual autonomy more than Germany. It would also be
fairly simple to say that both are more “liberal” along all three di-
mensions than, say, Saudi Arabia.
      An underlying efficient limit on how we can pursue any mix of
arrangements to implement our commitments to democracy, auton-
omy, and equality, however, has been the pursuit of productivity and
growth. As the great ideological divides of the nineteenth and twenti-
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eth centuries seem to fade, we have come to toil in the fields of politi-
cal fulfillment under the limitation that we should not give up too
much productivity in pursuit of these values. Singapore is perhaps an
extreme example of this tradeoff, but all nations with advanced capi-
talist economies are making some such tradeoff. Predictions of how
well we will be able to feed ourselves are a central consideration in
thinking about whether, for example, to democratize wheat produc-
tion or to make it more egalitarian. Much though some may value the
political vision of the yeoman farmer, we have not been willing to
abandon the economies of scale captured by agribusiness. Efforts to
advance workplace democracy have also often foundered on the
shoals—real or imagined—of these limits, as have many plans for re-
distribution in the name of social justice. Market-based production
has often seemed simply too productive to tinker with.
      The most advanced economies have now made two parallel shifts
that attenuate the limitations that market-based production places on
the pursuit of core liberal political values. The first move, in the
making for over a century, is the move to the information economy—
an economy centered on information (financial services, accounting,
software, science) and cultural (films, music) production, and the ma-
nipulation of symbols (e.g., from making sneakers to branding them
and manufacturing the cultural significance of the Swoosh). The sec-
ond move, of more recent vintage, is the move to a communications
environment built on cheap processors with high computation capa-
bilities, interconnected in a pervasively networked environment—the
phenomenon we associate with the Internet. This second shift allows
nonmarket production to play an increasing role in the information
and cultural production sector, organized in a radically more decen-
tralized pattern than was true of this sector in the twentieth century.
The first shift means that the surprising patterns of production made
possible by the networked environment—both nonmarket and radi-
cally decentralized—will emerge, if permitted to emerge, at the core,
rather than at the periphery, of the most advanced economies. Per-
mitting these patterns to emerge could therefore have a profound ef-
fect on our conceptions of the ultimate limits on how social relations
can be organized in productive, growth-oriented economies.
      Together these shifts can move the boundaries of liberty along all
three vectors of liberal political morality. They enable democratic dis-
course to flow among constituents, rather than primarily through con-
trolled, concentrated, commercial media designed to sell advertising,
rather than to facilitate discourse. They allow individuals to build
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their own windows on the world, rather than seeing it largely through
blinders designed to keep their eyes on the designer’s prize. They al-
low passive consumers to become active users of their cultural envi-
ronment, and they allow employees, whose productive life is marked
by following orders, to become peers in common productive enter-
prises. And they can ameliorate some of the inequalities that markets
have often generated and amplified.
      There is no benevolent historical force, however, that will inexo-
rably lead the technological-economic moment to develop towards an
open, diverse, liberal equilibrium. If the transformation occurs, it will
lead to substantial redistribution of power and money from the twen-
tieth-century, industrial producers of information, culture, and com-
munications—like Hollywood, the recording industry, and the tele-
communications giants—to a widely diffuse population around the
globe. None of the industrial giants of yore are going to take this re-
distribution lying down. Technology will not overcome their resis-
tance through some insurmountable progressive impulse. The reor-
ganization of production, and the advances it can bring in democracy,
autonomy, and social justice will emerge, if it emerges, only as a result
of social and political action. To make it possible, it is crucial that we
develop an understanding of what is at stake and what are the possi-
ble avenues for social and political action. But I have no illusions, and
offer no reassurances, that any of this will in fact come to pass. I can
only say that without an effort to focus our attention on what matters,
the smoke and mirrors of flashy toys and more convenient shopping
will be as enlightening as Aldous Huxley’s soma and feelies, and as
socially constructive as his orgy porgy.
      Let us think, then, of our being thrust into this moment as a
challenge. We are in the midst of a technological, economic, and or-
ganizational 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 largely depend on policy
choices that we will make over the next decade or two. To be able to
understand these choices, to be able to make them well, we must un-
derstand that they are part of a social and political choice—a choice
about how to be free, equal, and productive human beings under a
new set of technological and economic conditions. As economic pol-
icy, letting yesterday’s winners dictate the terms of economic compe-
tition tomorrow is disastrous. As social policy, missing an opportunity
to enrich democracy, freedom, and equality in our society, while
maintaining or even enhancing our productivity, is unforgivable.
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A. How We Got Here
      For over 150 years, new communications technologies have
tended to concentrate and commercialize the production and ex-
change of information, while extending the geographic and social
reach of information distribution networks. When large-volume me-
chanical presses and the telegraph were introduced, newspapers
changed from small-circulation, local efforts, into mass media—in-
tended to reach ever larger and more dispersed audiences. Of practi-
cal necessity, as the size of the audience and its geographic and social
dispersion increased, public discourse adapted to an increasingly one-
way model. Information and opinion flowed from ever more capital-
intensive commercial and professional producers to consumers who,
over time, became passive and undifferentiated. This model was eas-
ily adopted and amplified by radio, television, and later, cable and
satellite communications.
      The Internet presents the possibility of a radical reversal of this
long trend. It is the first modern communications medium that ex-
pands its reach by decentralizing the distribution function. Much of
the physical capital that embeds the intelligence in the network is dif-
fused and owned by end users. Network routers and servers are not
qualitatively different from the computers that end users use, unlike
broadcast stations or cable systems that are vastly different from the
televisions to which they transmit. What I hope to persuade you of
today is that this basic change in the material conditions of informa-
tion and cultural production and distribution can have quite substan-
tial effects on how we perceive and pursue core values in modern lib-
eral societies.
      In the wake of the hype-economy of the late 1990s, it is all too
easy to treat any such claim about an Internet “revolution” as a fig-
ment of an overstimulated imagination. The dazed economy makes it
seem as though the major leap—if there ever was one—has already
happened, and that “normal”—gradual, predictable, nondisruptive—
technological progression has set in. But to think so would be a mis-
take. It would be a mistake not, primarily, in the domain of techno-
logical prognostication. It would be a mistake of paying too much at-
tention to e-commerce and stock values, which are reflections of the
utility of the new medium to old modes of production and exchange.
What we need instead is a focus on the basic characteristics of the
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2003]             FREEDOM IN THE COMMONS                               1251

medium around which information and cultural production can now
be organized, and on how this medium interacts with an economy that
has advanced to the stage where information and cultural production
form its core.
     For the moment, I will suggest that we call the combination of
these two trends—the radical decentralization of intelligence in our
communications network and the centrality of information, knowl-
edge, culture, and ideas to advanced economic activity—the net-
worked information economy. By “networked information economy,”
I mean to describe an emerging stage of what in the past has been
called more generally “the information economy” or “the information
society.” I would use the term in contradistinction to the earlier stage
of the information economy, which one could call the “industrial in-
formation economy.”
     The “information economy,” conjuring up the Big Five (accounting
firms or recording companies, your choice), began as a response to the
dramatic increase in the importance of usable information as a means of
controlling our economy. James Beniger’s study of what he called The
Control Revolution showed how the dramatic increase in physical pro-
duction and distribution capabilities in the nineteenth century created a
series of crises of control over the material world—crises resolved
through the introduction of more efficient modes of producing and using
information to control physical processes and the human behavior that
relates to them. Ranging from the introduction of telegraph to control
the rolling stock of railroads, which, as Chandler has shown, made
Western Union the first nationwide prototype for modern corporate or-
ganization, to the invention of double-entry bookkeeping, scientific
management, and brand advertising, that economy was largely driven by
a concern with control of material flows into, through, and out of the
new, unmanageably productive factories. The “cultural” offshoots of that
moment—Hollywood, the broadcast networks, and the recording indus-
try—were also built around maintaining control over the use and trans-
mission paths of their products. For the first time, music or performance
could be captured in a thing, a thing that could be replicated millions of
times, and which therefore had to be made to capture the attention and
imagination of millions. This first stage might best be thought of as the
“industrial information economy.”

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      “The networked information economy” denotes a new stage of
the information economy, to succeed this older industrial stage. It is a
stage in which we can harness many more of the richly diverse paths
and mechanisms for cultural transmission that were muted by the
capital structure of communications, a capital structure that had led to
the rise of the concentrated, controlled form, whether commercial or
state-run. The most important aspect of this new stage is the possibil-
ity it opens for reversing the control focus of the information econ-
omy. In particular, it permits the reversal of two trends in cultural
production, trends central to the project of control: concentration and
commercialization. Although the claim that the Internet leads to
some form or another of “decentralization” is not new, the funda-
mental role played in this transformation by the emergence of non-
market, nonproprietary production and distribution is often over-
looked, if not willfully ignored.
      I imagine you sitting there, managing a bemused nod at my uto-
pianism as you contemplate AOL Time Warner, or Microsoft’s share
in Comcast’s purchase of AT&T Broadband. Decentralization and
nonmarket production indeed! But bear with me. That the dinosaurs
are growing bigger in response to ecological changes does not mean
that, in the end, it will not be these warm-blooded furry things that
will emerge as winners.
      What, then, would make one think that sustaining productivity
and growth are consistent with a shift towards decentralized and
nonmarket-based modes of production? And how would these or-
ganizational characteristics affect the economic parameters within
which practical political imagination and fulfillment must operate in
the digitally networked environment?
      Certain characteristics of information and culture lead us to un-
derstand them as “public goods” in the technical economic meaning
of the term, rather than as pure “private goods” or standard “eco-
nomic goods.” Economists usually describe “information” as “nonri-
val.” The analytic content of the term applies to all cultural forms,
and it means that the marginal cost of producing information, knowl-
edge, or culture is zero. Once a scientist has established a fact, or once
Tolstoy has written War and Peace, neither the scientist nor Tolstoy
need spend a single second on producing additional War and Peace
manuscripts or studies for the one-hundredth, one-thousandth, or
one-millionth user. Economists call such goods “public,” because a
market will never produce them if priced at their marginal cost—zero.
Given that welfare economics claims that a market is producing a
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2003]                 FREEDOM IN THE COMMONS                                          1253

good efficiently only when it is pricing the good at its marginal cost, a
good that can never be sold both at a positive price and at its marginal
cost is fundamentally a candidate for substantial nonmarket produc-
      Information has another quirky characteristic in the framework
of mainstream welfare economics—it is both the input and the output
of its own production process. This has important implications that
make property rights and market-based production even less appeal-
ing as the exclusive mechanisms for information and cultural produc-
tion than they would have been if the sole quirky characteristic of in-
formation were the public goods problem. These characteristics form
the standard economic justification for the substantial role of gov-
ernment funding, nonprofit research, and other nonproprietary pro-
duction in our information production system, and have been under-
stood as such at least since Nobel Laureate Kenneth Arrow identified
them in this context four decades ago.
      The standard problems that economics reveals with purely mar-
ket-based production of information and culture have now been cou-
pled with a drastic decline in the physical capital costs associated with
production and distribution of this public good. As I mentioned, one
primary input into information or cultural production is pre-existing
information, which is itself a public good. The other inputs are human
creativity and the physical capital necessary to generate, fix, and
communicate transmissible units of information and culture—like a
recording studio or a television network. Ubiquitously available
cheap processors have radically reduced the necessary capital input
costs. What can be done now with a desktop computer would once
have required a professional studio. This leaves individual human
beings closer to the economic center of our information production
system than they have been for over a century and a half. And what
places human beings at the center is not something that is homogene-
ous and largely fungible among people—like their physical capacity
to work or the number of hours they can stay awake. Those fungible
attributes of labor were at the center of the industrial model that
Fredrick Taylor’s scientific management and Henry Ford’s assembly
line typified. Their centrality to industrial production in the physical
economy was an important basis for concentration and the organiza-

    6. Kenneth J. Arrow, Economic Welfare and the Allocation of Resources for Invention, in
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tion of production in managed firms. In contrast, human beings are
central in the networked information economy because of attributes
in which they differ widely—creativity, wisdom, taste, social experi-
ence—as well as their effort and attention. And human beings use
these personal attributes not only in markets, but also in nonmarket
relations. From our homes to our communities, from our friendships
to our play, we live life and exchange knowledge and ideas in many
more diverse relations than those mediated by the market. In the
physical economy, these relationships were largely relegated to spaces
outside of our production system. The promise of the networked in-
formation economy and the digitally networked environment is to
bring this rich diversity of living smack into the middle of our econ-
omy and our productive lives.
     In the physical economy, we settled more or less on two modes
of making production decisions. The first was the market. The second
was corporate hierarchy. Markets best coordinated some economic
activities, while managers were better at organizing others. The result
was that most individuals lived their productive life as part of corpo-
rate organizations, with relatively limited control over how, what, or
when they produced; and these organizations, in turn, interacted with
each other largely through markets. We came to live much of the rest
of our lives selecting from menus of goods, heavily advertised to us to
try to fit our consumption habits to the decisions that managers had
made about investment in product lines.

B. Examples of Change
     What is emerging in the networked information economy is a
wider scope for two very different phenomena. The first is a much-
expanded role for nonmarket enterprises familiar to us from the real
world—both professional, like National Public Radio, nonprofit aca-
demic research, philharmonic orchestras, or public libraries, and non-
professional, like reading groups or fan clubs. The second phenome-
non is radical decentralization, which can be seen at the simplest level
in the information available on the World Wide Web from an amaz-
ing variety of individuals and networks of individuals. The most radi-
cally new and unfamiliar element in this category is commons-based
peer production of information, knowledge, and culture, whose most
visible instance has been free software. Here, digital networks seem
to be permitting the emergence of radically new relationships be-
tween individuals and their information environment, and, more
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2003]                  FREEDOM IN THE COMMONS                                            1255

dramatically, radically new roles that individuals play in the produc-
tion process.
      The role of nonmarket enterprises in information and cultural
production has always been great, though appreciation for its central-
ity has waned over the past two decades. Think, most obviously, of
science and news. In science, perhaps more than in any other cultural
form, the nonprofit academic enterprise, funded by government
grants, philanthropy, and teaching, has been the center of basic sci-
ence, while market-based research was at the periphery. In most
fields, the best scientists make the most fundamental advances in aca-
demic settings. Firms then take this science, refine it, and then apply
it. They do very valuable and important work, but the core of the sci-
entific enterprise has been people who forgo monetary rewards and
work instead for glory, immortality, or the pure pleasure of learning
something new. If you think of news, the story is more mixed, with
commercial providers like the New York Times or CNN playing a
tremendously important role. Still, public professional producers—
like NPR or PBS in the United States, or the BBC in the United King-
dom—play a crucial role, far beyond what we usually see in, for ex-
ample, automobile or wheat production.
      The difference that the digitally networked environment makes
is its capacity to increase the efficacy, and therefore the importance,
of many more, and more diverse, nonmarket producers. A Google
search for “presidential debates,” for example, shows CNN as the
first commercial site to show up, but it is tenth on the list, while C-
SPAN, a nonprofit funded by commercial cable providers shows up
fifth. Both are preceded and surrounded by nonmarket organizations,
like the Commission on Presidential Debates, a museum, an academic
site, and a few political action sites. If you search for “democracy” in
Google, PBS is the first media organization to show up, at ninth
place, and no commercial entity shows up until a story in The Atlantic
magazine some ninety-five links into the search. A number of the
most highly ranked sites are nonprofit sites devoted to disseminating
information about candidates. Consider for example what Democra-
cyNet, the League of Women Voters website, created for the city-

     7. For a more complete description of commons-based peer production, see generally Yo-
chai Benkler, Coase’s Penguin, or, Linux and the Nature of the Firm, 112 YALE L.J. 369 (2002).
     8. The following sentences describe the state of the searches at the time this Lecture was
delivered, in March of 2002.
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council elections in Raleigh, North Carolina in 2001. What one sees
as compared to, say, the local television news broadcasts—is a facility
that allows individuals to post questions in writing to the candidates
and that allows the candidates to respond directly. For example, we
see each candidate’s response to the question of whether or not there
should be a living-wage ordinance. The site does not provide pages on
pages of analysis—one might see a line or two, although some candi-
dates may have written more in response to questions that are more
central to their agenda. But you actually see the difference between
the candidates on this particular question. It is worth going to the site
and looking around. The point here is that because of the low capital
costs, a nonprofit organization is capable of providing information
down to the level of city council elections that is richer than anything
we have gotten from the commercial broadcast media. There is, then,
both an increase in the number of nonmarket producers and an in-
crease in their effectiveness.
     The networked information economy departs more dramatically
from the industrial information economy in the possibilities it opens
for radically decentralized collaborative production, a phenomenon I
call “peer production.” Peer production describes a process by which
many individuals, whose actions are coordinated neither by managers
nor by price signals in the market, contribute to a joint effort that ef-
fectively produces a unit of information or culture. Now this is not
completely new. Science is built by many people contributing incre-
mentally—not operating on market signals, not being handed their
research marching orders by their dean—but independently deciding
what to research, bringing their collaboration together, and creating
science. The Oxford English Dictionary was created in roughly the
same way in the nineteenth century—laboriously and over many
years. But what we see in the networked information economy is a
dramatic increase in the importance and the centrality of information
produced in this way.
     Free software has become the quintessential instance of peer
production in the past few years. Over 85 percent of emails are routed
using the sendmail software that was produced and updated in this
way. Over the past six years the Apache web server software has risen
from being nonexistent to capturing over 60 percent of the market in
server software. Choosing the server software that runs one’s site is

   9. DemocracyNet, at (last visited Apr. 12, 2003) (on file with the
Duke Law Journal).
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not a situation in which a few hundred or a few thousand dollars will
cause a company to adopt a particular application, but superior per-
formance will, and it is in such a market that we see tremendous
adoption of software produced by peer production. Similarly, Win-
dows NT and Sun’s Solaris are steadily losing ground to the
GNU/Linux operating system, which is produced in this way and al-
ready runs on some 30 percent of servers connected to the Web.
     While free software is the most visible instance of peer produc-
tion, in fact, peer production is ubiquitous in the digitally networked
environment. We see it happening all around. Think of the web itself.
Go to Google, and plug in any search request. The particular collec-
tion of information you see did not exist before you actually ran the
search, and now it exists on your search page. How was it produced?
One nonprofit, another person who is a hobbyist, a third company
that has as part of its business model to provide certain information
for free—all sorts of individuals and groups, small and large, combine
on your Google results page to provide you the information you
     But we also see this phenomenon occur less diffusely as well.
The Mars “clickworkers” project was an experiment run by NASA
that allowed 85,000 people to collaborate on mapping Mars craters.11
People looked at images of Mars’s surface online and mapped craters,
and after six months, when NASA did an analysis comparing the re-
sults from the Internet to the mapping done by the trained Ph.D.s
they had used previously, they described the outcomes as “practically
indistinguishable.”12 Massive multiplayer online games, like Ever-
Quest or Ultima Online, are another example. There, thousands or
tens of thousands of people play a game whose effect is to tell a story
together, instead of going to the movies and receiving the story as a
finished good.13
     Or compare “Wikipedia” (, an online ency-
clopedia produced by distributed contributors, to,
produced by Columbia Encyclopedia. Look up the term “copyright”
on and you see “right granted by statute to the

    10. The descriptions in the following paragraphs are capsules of more complete descrip-
tions of these peer production enterprises in Benkler, supra note 7, at 381–400. Documentation
and references for the descriptions can similarly be found there.
    11. Id. at 384 (citation omitted).
    12. Id.
    13. Id. at 389–90.
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author,” etc., and there is a bit of analysis, and some discussion of the
Berne Convention, for example, and so on. Now we go to Wikipedia,
enter the same search term, and we see a similar copyright discussion.
One might agree or disagree with it, as one might, as a professional,
agree or disagree with any short encyclopedia definition. But it is
there, it is plausible, it may even be better than the definition offered
in, and it is collaboratively produced by about 2000
     But how are we supposed to know whether any of this is any
good? What creates relevance and accreditation? The Internet also
provides instances of relevance and accreditation happening through
distributed peer production. Two examples are the Open Directory
Project (, a collaboration of about 40,000 people working to
create a human-edited directory based on the model of Yahoo, and
Slashdot, a technology news site collaboratively produced by about
250,000. Again let me just give you a feel. Let us use the directory to
find Internet law journals. Yahoo lists three Internet-related law
journals under the relevant category: Internet Law Journal, Journal of
Online Law, and Pike and Fischer Internet Law and Regulation. For
comparison, there are twenty-nine different Internet law journals un-
der the same category in the Open Directory Project, including all the
law school journals. Slashdot is another extremely sophisticated ex-
ample of how relevance is manufactured by people essentially voting
and commenting on one another. Slashdot uses a system of peer re-
view, not among a small group of academics, but among a quarter of a
million users.
     This Friday, for example, there was some discussion on Slashdot
of something near and dear to the hearts of some people here, the Se-
curity Systems Standards and Certification Act (SSSCA), an exten-
sion of the Digital Millennium Copyright Act (DMCA) that would
effectively require all hardware to be designed so that it could enforce
intellectual property rights or restrictions imposed by intellectual
property owners. We see a post early on, listing some sources on ef-
fects of the SSSCA, and then over the next two days, 792 comments

    14. Id. at 393–96 (citing Open Source Dev. Network, Inc., Slashdot: News for Nerds, Stuff
That Matters, at
    15. This was circulated as a staff working draft around the date that the Lecture was given.
Copies of the then-circulating draft can be found at A later ver-
sion of this bill was introduced as Consumer Broadband and Digital Television Promotion Act,
S. 2048, 107th Cong. (2002).
    16. Pub. L. No. 105-304, 112 Stat. 2860 (1998) (codified in scattered sections of 17 U.S.C.).
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2003]            FREEDOM IN THE COMMONS                               1259

were created by different people reading the story. How do we know
which of these 792 we might want to read? They are all peer re-
viewed, and we can organize them in the order in which they were
ranked by the peer reviewers—by other users who say whether the
comment is high or low quality, relevant or irrelevant, etc. It is not
that one person votes it up or down, but ten, fifteen, or maybe more
people vote, and the comment moves according to their combined
judgments. At the top of the list, for example, we see a list of things
you ought to take into consideration in writing your congressperson
to tell them to oppose this bill, including strategic considerations: “if
your congress-critter is a democrat, do this, and if your congress-
critter is a republican, do that”—and then continued discussions
about whether the letter should be typed or handwritten, and so on,
again organized in terms of how useful the conversation is determined
to be by the system of peer review. Managing the flow of comments
from a quarter of a million users is an immensely complex task, and
one that Slashdot performs, like the Open Directory Project, through
radically distributed production.
      How do these decentralized relevance- and accreditation-
production enterprises compare to market mechanisms for ascer-
taining relevance? Perhaps most interesting in this regard is the com-
petition between Google and Overture. Google ranks search results
based on counting “votes,” as it were, that is, based on how many
other websites point to a given site. The more people who think your
site is sufficiently valuable to link to it, the higher you are ranked by
Google’s algorithm. Again, accreditation occurs on a widely distrib-
uted model, in this case produced as a byproduct of people building
their own websites and linking to others. Overture is a website that
has exactly the opposite approach. It ranks sites based on how much
the site pays the search engine. So we have a little experiment, the
market vs. distributed voting. How do these compare?
      Here is what Google produces when we search for “Barbie”: We
see, with “Activities and Games for Girls Online!”, and
we see, with “Barbie, Barbie dolls, Barbie doll
magazine, etc.,” but then very quickly we start seeing sites like adios-, “A Body Image Site for Every Body.” We see more Bar-
bie collectibles, but then we see “Armed and Dangerous, Extra Abra-
sive: Hacking Barbie with the Barbie Liberation Organization.”
Further down we see “The Distorted Barbie,” and all sorts of other
sites trying to play with Barbie.
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     What happens when we run the same search on Overture, the
search engine used by, which is the Internet portal produced
by Disney? We get “Barbies, New and Preowned” at Internet-, BarbieTaker wholesale Barbie store, “Toys for All Ages” at, and so on. The Barbie Liberation Organization is no-
where to be found. Whether Overture is better than Google’s list de-
pends on whether you are shopping for Barbie dolls or interested in
understanding Barbie as a cultural phenomenon, but it certainly is not
normatively neutral, and it certainly offers a narrower range of in-
formation sources. Unsurprisingly, different things emerge when the
market determines relevance than when people vote on what is most
important to them. For those who find the choices of market actors a
persuasive source of insight, it is at least interesting to note that AOL
replaced Overture with Google as its search engine in 2002, and uses
the Open Directory Project database for its directory.

C. The Impact of the Change
     In all these communities of production, individuals band to-
gether, contributing small or large increments of their time and effort
to produce things they care about. They do so for a wide range of rea-
sons—from pleasure, through socially and psychologically rewarding
experiences, to economic calculation aimed at receiving consulting
contracts or similar monetary rewards. At this point, what is impor-
tant to see is that these efforts mark the emergence of a new mode of
production, one that was mostly unavailable to people in either the
physical economy (barring barn raising and similar traditional collec-
tive efforts in tightly knit communities) or in the industrial informa-
tion economy. In the physical world, capital costs and physical dis-
tance—with its attendant costs of communication and transportation—
mean that most people cannot exercise much control over their
productive capacities, at least to the extent that to be effective they
must collaborate with others. The digitally networked environment
enables more people to exercise a greater degree of control over their
work and productive relationships. In doing so, they increase the
productivity of our information and cultural production system
beyond what an information production system based solely on the
proprietary industrial model could produce.

  17.   Benkler, supra note 7, at 392.
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2003]             FREEDOM IN THE COMMONS                               1261

     Assume, for a moment, that you are willing to accept, even pro-
visionally, my basic economic claim that the information and culture
component of our economy will be able to sustain, or even improve,
productivity and growth, while at the same time allowing individuals
to participate in many more diversely organized productive enter-
prises, both market-based and nonmarket-based, than was possible in
the industrial information economy. How does the possibility of re-
ducing the extent to which information and culture is owned, and in-
creasing the extent to which it is produced outside the commercial,
concentrated system, affect the domains of democracy, autonomy,
and social justice?
     Recall my little mapping of liberal societies relative to each other
along vectors of how well they fulfilled the core liberal values of
autonomy, democracy, and social justice. You could imagine Saudi
Arabia perhaps somewhere close to the origin, and you could imagine
the U.S. and Germany placed elsewhere, with the U.S. higher up
along the autonomy axis, the two of them roughly equivalent on the
dimension of democracy, though in different ways, and Germany far-
ther out on the social-justice axis. In practical political debate, pro-
ductivity intersects with these three dimensions, creating an efficient
limit on the possibility of pragmatic fulfillment of different values. We
are not going to move toward democratic wheat production because
we want to eat bread. We have severe limits, in the United States in
particular, on social justice, which are usually justified in terms of
productivity. Productivity sets a limit on the political imagination.
     Now, if it is the case, as I suggest, that productivity can be sus-
tained with nonproprietary and nonmarket production, and if it is the
case, as I will suggest to you in the remainder of the talk, that (1) pro-
prietary- and market-based production have systematic dampening
effects on democracy, autonomy, and social justice, and (2) nonpro-
prietary commons-based production, as well as other nonmarket pro-
duction, alleviate these dampening effects, then two things follow.
First, if the networked information economy is permitted to emerge
from the institutional battle, it will enable an outward shift of the
limits that productivity places on the political imagination. Second, a
society committed to any positive combination of the three values
needs to adopt robust policies to facilitate these modes of production,
because facilitating these modes of production does not represent a
choice between productivity and liberal values, but rather an oppor-
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tunity actually to relax the efficient limit on the plausible set of politi-
cal arrangements available given the constraints of productivity.
     So let me speak about the relationship between democracy,
autonomy, and social justice and the choice between a more concen-
trated and commercial information and cultural production system
and one that is more decentralized and includes more nonmarket

A. Democracy
      The industrial model of mass media communications that domi-
nated the twentieth century suffers from two types of democratic
deficits that could be alleviated by a greater role for commons-based
production. The first deficit concerns effective political participation,
the second deficit concerns cultural politics, or the question of who
gets to decide the cultural meaning of social choices and conditions.
Both deficits, and the potential role of emerging trends in information
production in redressing them, are already present in the examples I
gave of the emergence of nonmarket and radically decentralized pro-
duction. DemocracyNet and Adios Barbie are the most obvious.
      The primary thrust of the first deficit is the observation that in
the mass-mediated environment only a tiny minority of players gets to
participate in political public discourse and to affect decisionmaking
directly. As Howard Jonas, chairman of a growing telecommunica-
tions company, incautiously described his ambitions, “Sure I want to
be the biggest telecom company in the world, but it’s just a commod-
ity. . . . I want to be able to form opinion. By controlling the pipe, you
can eventually get control of the content.” The high cost of mass
media communications translates into a high cost of a seat at the table
of public political debate, a cost that renders individual participation
all but impossible. The digitally networked environment makes it pos-
sible for many individuals and groups of similar beliefs to band to-
gether, express their views, organize, and gain much wider recogni-
tion than they could at a time when gaining recognition required
acceptance by the editors of the mass media.
      This claim is the most familiar of the political economy claims
that I will make here. It largely tracks the fairly well-known critique
of mass media and democracy, in particular regarding media concen-

    18.   Ann Wozencraft, For IDT, The Bid Flameouts Light Its Fire, N.Y. TIMES, Jan. 28, 2002,
at C4.
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2003]                  FREEDOM IN THE COMMONS                                               1263

tration, that has been part of academic and public discourse over me-
dia policy throughout at least the second half of the twentieth cen-
tury. The primary difference represented in my position is that the
solutions that the Internet makes possible are radically different from
those that dominated the twentieth-century debate. In the second half
of the twentieth century, concerns about the effects of mass media on
political discourse resolved into support for government regulation of
the mass media. In the United States, solutions took the form of lim-
ited regulation of media companies—such as the fairness doctrine in
broadcast or various carriage requirements in cable. In Europe, they
took the form of more extensive government ownership or control of
these media. These regulatory solutions, however, created opportuni-
ties for government abuse and political manipulation, while at the end
of the day providing a pale reflection of widespread participation in
      The possibility of sustainable, widely accessible and effective
communications by individuals or groups, organized on- or offline,
makes possible direct democratic discourse. It creates direct means
for the acquisition of information and opinion. It offers the tools for
its production and dissemination to a degree unattainable in the mass-
mediated environment, no matter how well regulated. Now, this
widespread, cacophonous constellation of voices is not everyone’s
idea of an attractive democracy. When the Los Angeles Times and the
Washington Post sued a conservative website called The Free Repub-
lic Forum for copyright violations, the judge clearly had in mind the
role of “the Press” in the industrial model as central to democratic
discourse, while regarding discourse among actual individual con-
stituents as secondary.20 The website enabled conservative partici-
pants to post stories they had read in various papers and then com-
ment on these stories—sometimes about the liberal prejudices of the
very media outlet they used. The newspapers argued that engaged

that advertising distorts and diminishes the mass media’s contribution to a free and democratic
society and suggesting solutions); C. EDWIN BAKER, MEDIA, MARKETS, AND DEMOCRACY
(2002) (discussing what a lack of paternalism and a commitment to democracy means for media
OF SHOW BUSINESS (1985) (lamenting the centrality of television as the preeminent American
news medium).
    20. See Los Angeles Times v. Free Republic, No. CV–7840 MMM (AJWx), 2000 U.S. Dist.
LEXIS 5669, at *38–39 (C.D. Cal. Apr. 5, 2000) (holding that the “[d]efendants have not met
their burden of demonstrating that verbatim copying of all or a substantial portion of plaintiffs’
articles is necessary to achieve their critical purpose”).
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discourse may well be fine, but not with their materials. The judge
agreed, and prohibited the site from posting copies of the newspa-
pers’ stories as part of its discussion forum. In the judge’s mind, the
only serious threat to democracy would arise if the newspapers were
prevented from making as much money as possible to fund their
journalistic role. The actual political discourse that she was inhibiting
took a back seat in her democratic calculus.
     The Free Republic case crystallizes the democratic stakes in the
debate over the relative role of nonproprietary, nonmarket produc-
tion and the exchange of information. Maintaining a heavily market-
based system requires definition and enforcement of property rights.
These rights, in turn, usually take the form of burdening individual
constituents and groups in their own exchanges, so that they may be
made to pay the market-based provider. The core questions from the
perspective of democratic theory are these: what are the respective
roles of large, commercial media and smaller scale, nonmarket fora in
democracy? Which is more valuable to democratic discourse? The
strongest arguments in favor of strong media come from Sunstein and
Netanel. Sunstein’s core claim is that the mass media provide a com-
mon language, a common agenda, and a set of images with which to
create a common discourse. Without these, he argues, we shall be a
nation of political narcissists, incapable of true political discourse.
Netanel’s most important claim is that the resources and market-
based economic heft that the commercial mass media have is abso-
lutely necessary, in the presence of powerful government and power-
ful business interests, to preserve the independence and critical force
of the Fourth Estate as watchdog of our democratic system of gov-
     The relationship between democracy and the structure of infor-
mation production cannot, however, be considered as though we were
designing an ideal state. The beginning of the twenty-first century is
not typified by a robust public sphere populated by newspaper read-
ers debating the news of the day and commentary in the idealized cof-
feehouses of London. Today’s society is a thoroughly unattractive sys-
tem for democratic communication, where money talks and
everybody who wants to speak must either raise vast sums of money
or rely on a large endowment. The commercial mass media that we

   21. CASS SUNSTEIN, REPUBLIC.COM 99–103 (2001).
   22. Neil Weinstock Netanel, Market Hierarchy and Copyright in Our System of Free Ex-
pression, 53 VAND. L. REV. 1879, 1919 (2000).
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2003]                 FREEDOM IN THE COMMONS                                            1265

actually have suffer from two major deficits—the Berlusconi effect
(or, more charitably the Bloomberg effect), of powerful media own-
ers using their media to achieve political power, and the Baywatch ef-
fect, the depoliticization of public conversation. To ask the creators of
“Survivor” and “Who Wants to Marry a Millionaire?” to be the
source of our common political discourse is sad. To rely on them to be
the Cerberus of a democracy otherwise conceived as lifeless enough
to be largely a power struggle among bureaucratic and business elites
is tragic. As against this backdrop, the shift to a networked informa-
tion economy is a substantial improvement. The wealth of detailed in-
formation made possible through DemocracyNet, the richness of
conversation on a site like Kuro5hin perhaps will not change the po-
litical world, but they will offer substantial outlets for more attractive
democratic practices and information flows than we saw in the twen-
tieth century.
      What radical decentralization of information production prom-
ises is the correction of some of the main maladies of the electronic
mass media—the centralization of power to make meaning, the in-
creased power of corporate interest in influencing the agenda, and the
inescapable sound-bite character of the discussion.
      The second democratic deficit of the mass-mediated communica-
tions environment concerns what some, like Niva Elkin Koren and
William Fisher, have called “semiotic democracy,” a term originally
developed by John Fiske to describe the extent to which a medium
permits its users to participate in structuring its message. In the mass
media model, a small group of actors, focused on maintaining and
shaping consumer demand, has tremendous sway over the definition
of meaning in society—what symbols are used and what they signify.
The democracy implicated by this aspect is not political participation
in formal governance, but rather the extent to which a society’s con-
stituents participate in making sense of their society and their lives. In
the mass media environment, meaning is made centrally. Commercial
mass media owners, and other professional makers of meaning who

    23. Kuro5hin, Front Page, at (last visited Apr. 12, 2003) (on file
with the Duke Law Journal).
    24. Niva Elkin-Koren, Cyberlaw and Social Change: A Democratic Approach to Copyright
Law in Cyberspace, 14 CARDOZO ARTS & ENT. L.J. 215, 233 (1996). Elkin-Koren called it par-
ticipation in meaning-making processes.
    25. William Fisher, Theories of Intellectual Property, in NEW ESSAYS IN THE LEGAL AND
POLITICAL THEORY OF PROPERTY 193 (Stephen R. Munzer ed., 2001).
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can buy time from them, largely define the terms with which we think
about life and develop our values. Television sitcoms, Barbie dolls,
and movies define the basic set of symbols with which most of us can
work to understand our lives and our society. In the pervasively net-
worked environment, to the contrary, meaning can be produced col-
laboratively, by anyone, for anyone. Again, as with public political
discourse, this will result in a more complicated and variegated, per-
haps less coherent, story about how we should live together as con-
stituents of society. But it will be a picture that we made, not one
largely made for us and given to us finished, prepackaged, and mas-
sively advertised as “way cool.”

B. Autonomy
     Autonomy, or individual freedom, is the second value that I sug-
gest can be substantially served by increasing the portion of our in-
formation environment that is a commons and by facilitating non-
market production. Autonomy means many things to many people,
and some of these conceptions are quite significantly opposed to oth-
ers. Nonetheless, from an autonomy perspective the role of the indi-
vidual in commons-based production is superior to property-based
production almost regardless of the conception one has of that value.
     First, the mass media model, and its core of an owned and con-
trolled communications infrastructure, provides substantial opportu-
nities for individuals to be manipulated by the owners of the media.
That is, for any number of business reasons, media owners can decide
to disclose or reveal information to their consumers, or change the ef-
ficacy with which certain information is available to certain users.
When they do so, they can, if they choose to, shape the options that
individuals know about. For example, in a 1999 technical white pa-
per, Cisco Systems described a new router that it planned to sell to
cable broadband providers. The paper described a variety of advan-
tages that this “policy router” could offer providers. For example, if
users decided that they wanted to subscribe to a service that “pushes”
information to their computer, the Cisco paper tells the broadband

    27. Center for Digital Democracy, Cisco 1999 White Paper: Controlling Your Network—A
Must for Cable Operators, at (last
visited Apr. 12, 2003) (on file with the Duke Law Journal).
BENKLER.DOC                                                                      10/10/03 9:37 AM

2003]                  FREEDOM IN THE COMMONS                                             1267

     You could restrict the incoming push broadcasts as well as subscrib-
     ers’ outgoing access to the push site to discourage its use. At the
     same time, you could promote your own or a partner’s services with
     full speed features to encourage adoption of your services.

For example, AOL Time Warner could, as a practical matter, speed
up access to, while slowing down Fox News. News Corp.
would be left to pursue a similar deal with Comcast, and so forth.
     Such shaping of the information flow to an individual in order to
affect what the individual knows about, and thereby to affect that
person’s likely behavior, is quite plainly an offense against the indi-
vidual’s substantive capacity to plan and pursue a life plan that is his
own, rather than scripted for him by another. When the opportunities
to manipulate in this way emerge as a product of laws and public pol-
icy—such as an FCC decision not to require cable broadband opera-
tors to allow competitors to offer services that, for example, might re-
frain from using policy routers is a crisp example —the affront to
autonomy should be recognized under more or less any conception of
autonomy. Conversely, policies that introduce into the network sig-
nificant commons-based elements, over which no one exercises con-
trol and which are therefore open for any individual to use to build
their own window on the world, represent an important mechanism
for alleviating the autonomy deficit created by an exclusively proprie-
tary communications system.
     Second, decentralization of information production and distribu-
tion has the capacity qualitatively to increase both the range and di-
versity of information individuals can access. In particular, the com-
mercial mass media model has generally presented a relatively
narrow range of options about how to live, and these options have
been mostly variations on the mainstream. This is so largely because
the economies of that model require large audiences to pay attention
to anything distributed, constraining the content to that which would
fit and attract large audiences. Decentralization of information pro-
duction, and in particular expansion of the role of nonmarket produc-
tion, makes information available from sources not similarly con-
strained by the necessity of capturing economies of scale. This will not

   28. Id.
   29. FCC Appropriate Regulatory Treatment for Broadband Access to the Internet over
Cable Facilities, 67 Fed. Reg. 18848 (Apr. 17, 2002); FCC Inquiry Concerning High-Speed Ac-
cess to the Internet over Cable and Other Facilities; Internet over Cable Declaratory Ruling, 67
Fed. Reg. 18907 (Apr. 17, 2002).
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necessarily increase the number of different ways people will actually
live, but it will increase the number of different ways of living that
each one knows about, and thereby enhance their capacity to choose
      A different type of effect of commons-based nonmarket produc-
tion, in particular peer production, on autonomy is relevant only
within a narrower set of conceptions of autonomy—those usually
called “substantive.” These are conceptions of autonomy that recog-
nize that individuals are always significantly constrained—by genes,
environment, and social and economic constraints—and consider the
institutions of a society in terms of their effect on the relative role that
individuals can play in planning and pursuing their own life plan. The
networked information economy promises the possibility of an ex-
pansion of elements of autonomous choice into domains previously
more regimented by the decisions of firm managers in the market. In
particular, the shift can alter two central organizational constraints on
how our lives are shaped—the organization of production and the or-
ganization of consumption. Much of our day-to-day time is occupied
with, and much of our well being shaped by, production and con-
sumption, work and play. In the twentieth century, the economics of
mass production led to a fairly regimented workday for most people,
at the end of which most people went into a fairly regimented pattern
of consumption and play at the mall or in front of the television set.
Autonomy in these domains was largely limited to consumer sover-
eignty—that is, the ability to select finished goods from a range of
products available in usefully reachable distribution channels.
      Peer production and otherwise decentralized nonmarket produc-
tion can fundamentally alter the producer/consumer relationship with
regard to culture, entertainment, and information. We are seeing the
emergence of a new category of relationship to information produc-
tion and exchange—that of “users.” Users are individuals who are
sometimes consumers, sometimes producers, and who are substan-
tially more engaged participants, both in defining the terms of their
productive activity and in defining what they consume and how they
consume it. To the extent that people spend more of their production
and consumption time in this ambiguous category of “user,” they can
have a greater autonomy in self-defining their productive activity, and
in making their own consumption goods. The substantive capacity of
individuals to control how their life goes—day to day, week to
week—would increase to cover aspects of life previously unavailable
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2003]             FREEDOM IN THE COMMONS                                1269

for self-governance by individuals seeking to put together an
autonomously conceived and lived life.

C. Justice
     Finally, as we think about the relationship between the structure
of information and cultural production and liberal society, there is the
question of how the transition to more commons-based production
will affect social justice, or equality. Here in particular it is important
to retain a cautious perspective as to how much can be changed by
reorganizing our information production system. Raw poverty and
social or racial stratification will not be substantially affected by these
changes. Education will do much more than a laptop and a high speed
Internet connection in every home, though these might contribute in
some measure to avoiding increasing inequality in the advanced
economies, where opportunities for both production and consump-
tion may increasingly be known only to those connected.
     For some individuals and societies, where access to capital, not
education, is a primary barrier to development, however, there is
some promise that a substantial commons in the information econ-
omy will provide valuable opportunities. Linux, for example, is
spreading more quickly in China and Southeast Asia than in North
America, and is widely used to train software engineers. I doubt,
though, that it will lead to a fundamental change in the structural and
historical reasons for the sustained existence of poverty in advanced
economies, or for the sustained gap between developed and devel-
oping nations. So my consideration of the benefits of the transition to
a digitally networked environment, when talking about equality, is
less ambitious than it was with regard to democracy and freedom,
both of which are more centrally affected by the structure of the in-
formation and cultural environment we inhabit as citizens and indi-
viduals. I simply hope to identify those improvements in this domain
that I see as possible, recognizing that they are likely modest.
     There are a number of potential benefits—in terms of social jus-
tice—to organizing a substantial component of our communications
and information environment as a commons, in which nonmarket
production can take on a more important role. These gains fall into
categories that might be understood as liberal—or concerned with
equality of opportunity in some form or another—and social-
democratic, or concerned with the universal provision of relatively
substantial elements of welfare.
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      A central attribute of liberal theories of justice is that they treat
differences in wealth as permissible, while providing some justifica-
tion for redistribution in the form of compensating for undeserved
wealth differentials. John Rawls’s theory of justice, for example, both
requires and limits redistribution to the extent necessary to make the
worst-off class as well off as it can be. In Bruce Ackerman’s theory
of social justice, inequality can in principle be justifiable if and when
it arises from the different outcomes people reach by following their
life plans with equal endowments and under equal constraints, such as
those imposed by genetic or educational background or by access to
transactional facilities.31 As a practical matter, this translates into re-
distribution plans aimed at alleviating these baseline inequalities—
none of which meet his core requirement of being justifiable in
neutral terms—in the constraints under which individuals pursue their
      Under either of these theories, exclusive rights in ideas or ex-
pressions, or for that matter in communications infrastructure, are
unjustifiable to the extent that they are not plainly necessary to sus-
tain productivity and growth. In Rawls’s framework, we would not
justify exclusive rights in information, culture, or communications fa-
cilities if doing so would raise the cost of access, unless we knew that
doing so would increase productivity so as, given appropriate redistri-
bution, to improve the condition of those worst off in society. But if it
appears, as it is beginning to appear, that enabling substantial com-
mons-based production will enhance, rather than retard, productivity
and growth, then to the extent that this is true, justice (as well as
growth) would require us to prefer a framework where all are equally
privileged to use a set of information and communications resources
and outputs to one where all resources and outputs in these domains
are subject to a price.
      The argument for creating commons wherever sustainable is
clearer still in Ackerman’s framework. First, commons in infrastruc-
ture and information and cultural resources form a baseline equal en-
dowment, available for all to use in pursuit of their goals. They form a
resource set that somewhat ameliorates the real-world constraints on
the attainment of justice in a liberal society—to wit, the inequality in
wealth that meets us when we are born into society. Commons in in-
formation and communications facilities are no panacea for inequality
in initial endowments, but they do provide a relatively simple and sus-
  30.   JOHN RAWLS, A THEORY OF JUSTICE 11–17 (1971).
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tainable way of giving everyone equal access to one important set of
resources. Second, commons in communications infrastructure pro-
vide a transactional setting that ameliorates some of the inequalities
in transactional capabilities that Ackerman identifies as a focus for
liberal redistribution. Differences in the capacity to acquire informa-
tion about the world, to transmit one’s own preferences or proposals,
and to form and reform common enterprises with others can signifi-
cantly disadvantage an individual’s opportunities to go through life on
equal footing with others. If AOL Time Warner differentiates be-
tween what is easily accessible to users and what is not, and sells that
differentiation either to high-end users or to marketers, then one’s
wealth endowment will be a substantial determinant of the flexibility
and quality of the communications and transactional constraints one
faces. A ubiquitously available high-speed commons in the network,
and open access to resources and outputs of the information produc-
tion system, mute this effect.
      Less clear is the contribution made by policies aimed at realizing
the viability of commons-based nonmarket production to equality in
the “social-democratic” sense of providing decent access to a substan-
tial level of services to everyone, regardless of wealth. There is, of
course, Sen’s baseline argument that famines do not occur in democ-
racies, and hence the improvement in the quality of democratic dis-
course may lead to some improvement in the minimal endowments
available to everyone. Beyond this derivative from democracy, how-
ever, the effects of the emergence of commons-based and nonmarket
production have two different transmission media—the market and
nonmarket sectors. The expansion in scope and efficacy of the non-
market sector suggests that in the domain of information, knowledge,
and culture, a more substantial level of services and goods will be
available from sources insensitive to the wealth of users, which relate
instead to more evenly distributed attributes—some intangible, like
desires or values shared with providers, others tangible, like time or
attention. Insofar as this is true, increasing the role of commons-based
nonmarket production will serve the social-democratic conception of
      The effect on market providers is more muted, and largely re-
sides in the improvement of the functioning of the market in informa-
tion and culture that would result from decentralization. Specifically,

   32. Amartya Sen, The Economics of Life and Death, SCI. AM., May 1993, at 40; Amartya
Sen, Freedoms and Needs, NEW REPUBLIC, Jan. 10 & 17, 1994, at 31, 34.
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intellectual property rights, and rights in traditional wired infrastruc-
ture and those emerging in wireless infrastructure, usually function as
more or less limited monopoly rights. Universal service policies and
fair use rights in copyright have served only partially to counteract
the market power these rights have created and sustained. My pro-
posals for a core common infrastructure are likely to lower the capital
costs of resources necessary for information and cultural production
for market providers as well as for nonmarket actors.
     Building such a commons would therefore add a more competi-
tive layer of goods and services from market-based sources, as well as
nonmarket sources, thereby providing a wider range of information
and cultural goods at lower cost. On the consumption side this has an
unusual flavor as an argument within a social-democratic framework.
Proposing a mechanism that will increase competition and decrease
the role of government-granted and regulated monopolies is not ex-
actly the traditional social-democratic way. But lower prices are a
mechanism for increasing the welfare of those at the bottom of the
economic ladder, and in particular, competition in the provision of a
zero-marginal-cost good, to the extent it eventually drives the direct
price of access and use to zero, will have this effect. More impor-
tantly, access to such resources, free of the usual capital constraints,
will permit easier access to production opportunities for some in
populations traditionally outside the core of the global economy—
particularly in developing nations. Such access could provide, over
the long term, somewhat greater equity in the distribution of wealth
globally, as producers in peripheral economies take these opportuni-
ties to compete through a globally connected distribution medium,
access to which is relatively unaided by wealth endowments.

D. The Battle over the Institutional Ecology
     We are in the midst of a pitched political battle over the spoils of
the transformation to a digitally networked environment and an
economy increasingly centered on the production and exchange of in-
formation, knowledge, and culture. Stakeholders from the older in-
dustrial information economy are using legislation, litigation, and in-
ternational treaties to retain the old structure of organizing
production so that they can continue to control the empires they built
in the old production system. Copyright law and other intellectual
property, broadcast law and spectrum management policy, e-
commerce law and domain-name management are all being tugged
and warped to fit the size of the industrial model organizations of yes-
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2003]            FREEDOM IN THE COMMONS                               1273

teryear. In the process, they are stifling the potential evolution of
widely distributed and nonmarket-based information production and
exchange. The Leviathan that combines ownership over all three lay-
ers of the communications environment—AOL Time Warner—offers
a glimpse at the logical alternative to an open commons. It exempli-
fies a fully integrated, proprietary information production and ex-
change system that, in order to extract the social value of the human
communication it makes possible, controls all layers of the informa-
tion environment in which its consumers operate.
      What decentralized and nonmarket information production gen-
erally, and peer production in particular, need, is a space free of the
laws developed to support market- and hierarchy-based production.
In the late eighteenth and early nineteenth centuries, market-based
production was replacing artisan and guild-based production, and law
developed the framework that that transition needed—modern prop-
erty and contract law. In the late nineteenth and early twentieth cen-
turies, larger-scale production in corporate hierarchies was necessary
to coordinate the complex production decisions that technology had
made possible. Law developed to accommodate these properties by
developing corporate law, antitrust law, labor law, securities laws, and
later, consumer protection law. Some of the newer laws had to con-
flict with, and partly displace, contract and property law. One exam-
ple is the power that corporate law gives managers to make decisions
independent of the wishes of those traditionally seen as “the owners”
of the corporation, its shareholders. Similarly, labor law and con-
sumer protection law partially displaced contract law. National policy
too was harnessed to advance railroad construction, electrification,
and eventually the highway system that this new, larger-scale system
of production and distribution of material goods required.
      As we enter the twenty-first century, law and policy must once
again develop to accommodate newly emerging modes of production.
The primary need is to develop a core common infrastructure—a set
of resources necessary to the production and exchange of informa-
tion, which will be available as commons—unowned and free for all
to use in pursuit of their productive enterprises, whether or not mar-
ket-based. Building the core common infrastructure will require a
combination of both legal and policy moves to develop a series of sus-
tainable commons in the information environment, stretching from
the very physical layer upon which it rests—the radio frequency spec-
trum—to its logical and content layers. The idea is not to replace the
owned infrastructure, but rather to build alongside it an open alterna-
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tive. Just as roads do not replace railroads or airport landing slots, the
core common infrastructure will be open to be used by all, and biased
in favor of none.
      At the physical layer, we should focus on two primary policy ob-
jectives. The first is to permit the free utilization of radio frequencies,
so as to develop a market in end-user-owned equipment that will cre-
ate an ownerless network. The dramatic emergence of WiFi over the
past year or so points in the general direction, but metaphorically,
think of this option as one that replaces railroads—owned and man-
aged infrastructure—with sidewalks, roads, and highways—infrastruc-
ture that is open for all who have the necessary equipment—a car,
bike, or legs. The main difference is that the infrastructure in spec-
trum will be built by individual and private equipment owners, more
like the Internet than like the public highway system, and will have an
even more decentralized capital investment structure than the Inter-
net because physical connectivity itself will be provided coopera-
tively, by individuals.
      The second policy in the physical-layer objective is to begin to
move towards public investment in open infrastructure, alongside the
private infrastructure. A variety of municipalities, frustrated with the
slow rate of broadband deployment, in particular in the last mile,
have begun to work on deploying fiber to the home networks. Chi-
cago CityNet is probably the most ambitious effort, in terms of scope,
hoping to use the city’s own purchasing power to drive investment in
fiber, which would then be available on a nondiscriminatory basis for
all to use.
      At the logical and content layer, we are confronted with the en-
closure movement that James Boyle has so eloquently described and
criticized, and that David Lange saw many years ago when he first
shone a light on the public domain. This movement encompasses a
series of moves in the DMCA, the SSSCA, and the Uniform Com-
puter Information Transactions Act;36 the struggles over trademark
dilution, software and business methods patents, and database protec-

    33. City of Chicago, Chicago CivicNet, at (last visited Apr.
21, 200) (on file with the Duke Law Journal).
    34. James Boyle, The Second Enclosure Movement and the Construction of the Public Do-
main, 66 LAW & CONTEMP. PROBS. 33, 33–74 (Winter/Spring 2003).
    35. David Lange, Recognizing the Public Domain, 44 LAW & CONTEMP. PROBS. 147, 147,
150 (Autumn 1981).
    36. UCITA Online, at (last visited Apr. 21, 2003) (on file with
the Duke Law Journal).
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2003]                 FREEDOM IN THE COMMONS                                           1275

tion, which no one has discussed more completely and lucidly than
Jerry Reichman; the move to create all sorts of common-law doc-
trines regarding linking and trespass to chattels; the question of copy-
right-term extension; the idea of RAM copies; the emerging “right to
read” movement that Jessica Litman diagnosed years ago;38 and the
shift toward criminalization in information law (which emerges be-
cause when you shift towards a networked information economy, eve-
ryone can potentially be a competitor because of radical decentraliza-
tion of production, and the only way to control an entire population is
through criminal law) that she diagnosed more recently.39 All these
trends are aspects of the fight over the enclosure movement, which is
the main institutional battleground where the conflict between the
industrial information giants and the emerging networked informa-
tion economy is being fought.
     In all these fields, we must restrain the ever-onward surge of
prohibition and regulation on cultural production that has pervaded
the 1990s. At all these places, we must protect and expand the public
domain and the right of all human beings to be creative in the cultural
environment into which fate has delivered them. At the logical layer
in particular, we could also adopt more active policies, similar to
those we have for public funding of science. Most promising in this
regard are ideas for introducing a National Software Foundation,
perhaps within the National Science Foundation, that will fund soft-
ware development projects on condition that the fruits be licensed as
free software, and the adoption of a government procurement policy
that would require that software written under government contract
be released as free software.
     These are all very specific changes—in spectrum and broadband
infrastructure deployment policy, and in exclusive rights to informa-
tion and related regulatory arrangements—changes intended to clear
a legal space for a sustainable commons in the information environ-
ment. But these are all contingent proposals, good for today, hope-
fully for tomorrow. My more general point is, I believe, more stable.

   37. E.g., J. H. Reichman and Paul Uhlir, Database Protection at the Crossroads: Recent De-
velopments and Their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793, 794–838
   38. Jessica Litman, The Exclusive Right to Read, 13 CARDOZO ARTS & ENT. L.J. 29, 32–33
   39. Jessica Litman, Electronic Commerce and Free Speech, 1 J. ETHICS & INFO. TECH. 213,
219 (1999), available at
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     We are at a moment in our history at which the terms of freedom
and justice are up for grabs. We have an opportunity to improve the
way we govern ourselves—both as members of communities and as
autonomous individuals. We have an opportunity to be more just at
the very core of our economic system. The practical steps we must
take to reshape the boundaries of the possible in political morality
and to improve the pattern of liberal society will likely improve pro-
ductivity and growth through greater innovation and creativity. In-
stead of seizing these opportunities, however, we are sleepwalking.
We shuffle along, taking small steps in the wrong direction, guided by
large political contributions, lobbyists, and well-financed legal argu-
ments stretching laws written for a different time, policy arguments
fashioned for a different economy. The stakes are too high, however,
for us to take our cues from those who are well adapted to be winners
in the economic system of the previous century. The patterns of press
culture became settled for five hundred years within fifty years of
Gutenberg’s invention; radio had settled on the broadcast model
within twenty-five years of Marconi’s invention. Most of the major
decisions that put the twentieth century broadcast culture in place
were made in the span of six years between 1920 and 1926. The time
to wake up and shape the pattern of freedom and justice in the new
century is now.