each of these three applications (intellectual property, privacy, and free speech), I will offer my view about how these choices should be made. But I do this under some duress and encourage you to simply ignore what I believe. It will be short, and summary, and easy to discard. It is the balance of the book — and, most importantly, the claim that we have a choice to make — that I really want to stick.
Anonymity
Cohen, it seems to me, is plainly right about anonymity, and the Cohen Theorem is inspirational. However efficient the alternative may be, we should certainly architect cyberspaces to ensure anonymity — or more precisely, pseudonymity — first. If the code is going to monitor what I do, then at least it should not know that it is “I” that it is monitoring. I am less troubled if it knows that “14AH342BD7” read such and such; I am deeply troubled if that number is tied back to my name.
Cohen is right for a second reason as well: All of the good that comes from monitoring could be achieved while protecting privacy. It may take a bit more coding to build in routines for breaking traceability; it may take more planning to ensure that privacy is protected. But if those rules are embedded up front, the cost would not be terribly high. It is far cheaper to architect privacy protections now rather than retrofit for them later.
The Commons
By “the Commons” I mean a resource that anyone within a relevant community can use without seeking the permission of anyone else. Such permission may not be required because the resource is not subject to any legal control (it is, in other words, in the public domain). Or it may not be required because permission to use the resource has already been granted. In either case, to use or to build upon this resource requires nothing more than access to the resource itself[66].
In this sense, the questions about the scope and reach of copyright law ask whether our future will protect the intellectual commons that it did in the past. Again, it did so in the past because the friction of control was too great. But now that that friction is gone, will we preserve or destroy the commons that used to exist?
My view is that it ought to be preserved.
We can architect cyberspace to preserve a commons or not. (Jefferson thought that nature had already done the architecting, but Jefferson wrote before there was code.) We should choose to architect it with a commons. Our past had a commons that could not be designed away; that commons gave our culture great value. What value the commons of the future could bring us is something we are just beginning to see. Intellectual property scholars saw it — long before cyberspace came along — and laid the groundwork for much of the argument we need to have now[67]. The greatest work in the law of cyberspace has been written in the field of intellectual property. In a wide range of contexts, these scholars have made a powerful case for the substantive value of an intellectual commons[68].
James Boyle puts the case most dramatically in his extraordinary book Shamans, Software, and Spleens[69]. Drawing together both cyberspace and noncyberspace questions, he spells out the challenge we face in an information society — particularly the political challenge[70]. Elsewhere he identifies our need for an “environmental movement” in information policy — a rhetoric that gets people to see the broad range of values put at risk by this movement to propertize all information. Boyle’s work has inspired many others to push a similar agenda of freedom[71].
That freedom would limit the law’s regulation over the use and reuse of culture. It would resist perfect control over use; it would free a wide range of reuse. It would build through affirmative protections for freedom the liberty that friction gave us before. It would do so because it believes in the values this freedom stands for, and it would demonstrate the value in that freedom by enabling the communities that freedom would itself enable.
But this freedom could be constructed either through changes in the law or voluntarily. That is, the law could be rebalanced to encourage the freedom thought important, or this property could be redeployed to effect the freedom thought important.
The second strategy was the technique of the Free Software Movement, described in Chapter 8. Using copyright law, Stallman deployed a software license that both preserved the four freedoms of free software, and also required that those modifying and distributing free software distribute the modifications freely. This license thus effects a software commons, since the software is available to all to use, and this software commons has become a critical raw material fueling the digital age.
More recently, Stallman’s idea has been copied by others seeking to rebuild a commons in cyberspace. The Wikipedia project, for example, has built — to the astonishment of most — an extraordinary online encyclopedia solely through the volunteer efforts of thousands, contributing essays and edits in a public wiki. The product of that work is now protected perpetually (yes, I know, only for a “limited time”, but don’t correct me about that little detail) through a copyright license that, like the GPL, requires any modification to be distributed freely as well. (More on Wikipedia in Chapter 12.)
And so too has Creative Commons used private law to build an effective public commons. Again, following Stallman, Creative Commons offers copyright holders a simple way to mark their creative work with the freedoms they intend it to carry. That mark is a license which reserves to the author some rights, while dedicating to the public rights that otherwise would have been held privately. As these licenses are nonexclusive and public, they too effectively build a commons of creative resources that anyone can build upon.
Though I have spent a great deal of my time helping to build the Creative Commons, I still believe private action alone is not enough. Yet there is value in learning something from what this private action produces, as its lesson may help policy makers recraft copyright law in the future.
Chapter 11. Privacy
The conclusion of Part 1 was that code could enable a more regulable cyberspace; the conclusion of Part 2 was that code would become an increasingly important regulator in that more regulable space. Both conclusions were central to the story of the previous chapter. Contrary to the early panic by copyright holders, the Internet will become a space where intellectual property can be more easily protected. As I’ve described, that protection will be effected through code.
Privacy is a surprisingly similar story. Indeed, as Jonathan Zittrain argued in an essay published in the Stanford Law Review[1], the problems of privacy and copyright
