The document explores Stuart Hall's theoretical framework for understanding communication processes, particularly in relation to television. It emphasizes a four-stage model of communication—production, circulation, consumption, and reproduction—highlighting the relative autonomy of each stage and the influence of institutional power relations on meaning. Hall argues for a semiotic approach to communication, which challenges traditional behavioral perspectives and encourages further ethnographic research into audience reception and meaning construction.

1. T h e
G u l t u r a l S t u d i e s
R e a d e r
Edited by
S I M O N D U R I N G
EI
London and New York
6 stuart nau
E N C O D I N G i . D E C O D I N G
model has been criticized for its linearity -
sender/message/receiver - for
its concentration on the level of message exchange and for the
absence
of a structured conception of the different moments as a
complex
structure of relations. But it is also possible (and useftrl) to
ttrinl of this
process in terms of a structure produced and sustained tfuough
the
articulation of linked but distinctive moments - productiory
circulation,
distribution/consumption, reproduction. This would be to think
of the
process as a 'complex structure in dominance', sustained
tfuough the

2. articulation of conlected practices, each of which, however,
retains its
distinctiveness and has its own specific modality, its own forms
ald
conditions of existence.
The 'obiect' of these practices is meanings and messages in the
form
of sign-vehicles of a specific icind organized, like any form of
commurf-
cation or language, through the operation of codes within the
syntag-
matic chain of a discourse. The apparatuses, relations and
practices of
production thus issue, at a certain moment (the moment of
,productiorr,/
circulation') in the form of symbolic vehicles constituted within
the rules
of 'language'. It is in this discursive form that the circulation of
the
'product' takes place. The process thus requires, at the
production end,
its material instruments - its 'means' - as well as its own sets of
social
(production) relations - the organization and combination of
practices
within media apparatuses. But it is in the discursizte form that
the
circulation of the product takes place, as well as its distribution
to
different audiences. Once accomplished, the discourse must
then be
translated - transformed, again - into social practices if the
circuit is to
be both completed and effective. If no 'meaning' is taken, there
can be

3. no 'consumption'. If the meaning is not articulated in practice, it
has no
effect. The value of this approach is that while each of the
moments, in
articulation, is necessary to the circujt as a whole, no one
moment can
fully guarantee the next moment with which it is articulated.
Since each
has its specific modality and conditions of existence, each can
constitute
its own break or interruption of the 'passage of forms' on whose
conti-
nuity the flow of effective production (that is, 'reproductionl)
depends.
Thus while in no way wanting to limit research to 'following
only
those leads which emerge from content analysis', we must
recognize
that the discursive form of the message has a privileged position
in the
communicative exchange (from the viewpoint of circulation),
and that
the moments of 'encoding' and 'decoding', though only
'relativeiy
autonomous' in relation to the communicative process as a
whole, are
detnminnte moments. A 'raw' historical event cannot, in that
form, be
Encoding, decoding
EDITOR'S INTRODUCTION
Stuart Hall's influential essay offers a densely theoretical
account of how

4. messages are produced and disseminated, referring particularly
to television.
He suggests a four-stage theory of communication: production,
circulation,
use (which here he calls distribution or consumption), and
reproduction" For
him each stage is 'relatively autonomous' from the others. This
means that the
coding of a message does control its reception but not
transparentty - each
stage has its own determining limits and possibilities. The
concept ot relative
autonomy allows him to argue that polysemy is not the same as
pluralism:
messages are not open to any interpretation or use whatsoever-
just because
each stage in the circuit limits possibilities in ttJe next.
In actual social existence, Hall goes on to argue, messages have
a
'complex structure of dominance' because at each stage they are
,imprinled'
by institutional power relations. Furthermore, a message can
only be received
at a particular stage it it is recognizable or appropriate - though
there is space
for a message to be used or understood at least somewhat
against the grain.
This means that power relations at the point ot production, tor
example, will
loosely fit those at the point of consumption. In this way, the
communication
circuit is also a circuit which reproduces a Dattern of
domination.
This analysis allows Hall to insert a semiotic paradigm into a

5. social
framework, clearing the way both for further textualist and
ethnographic work.
His essay has been particutarly important as a basis on which
tieldwork like
David Morley's has proceeded.
Fufther reading: Hall 1977,1980; Morley i 980, 1999.
S.D.
Traditionally, mass-communications research has
concepfualized the
process of communication in terms of a circulation circuit or
loop. This
S T U A R T H A L L
Eansmitted by, say, a-television newscast'
Events can only be signified
Jihin the aural-visual forms of the televisual discourse' In the
moment
when a historical event passes under the sign of discourse, it is
subject
to all the complex formal 'rules' by which language signifies' To
Put it
oaradoxically, the event must become a 'story' before it can
become a
iommunicatioe eoent. In that moment the formal sub-rules of
discourse
are 'in dominance', without, of course, subordinating out of

6. existence
the historical event so signified, the social relations in which
the rules
are set to work or the social and political consequences of the
event
having been signified in this way. The 'message form' is the
necessary
'form of appearance' of the event in its passage from source to
receiver.
Thus the transposition into and out of the 'message form' (or the
mode
of s)'rnbolic exchange) is not a random'moment', which we can
take up
or ignore at our convenience. The 'message form' is a
determinate
moment; though, at another level, it comprises the surface
movements
of the communications system only and requires, at another
stage, to be
integrated into the social relations of the communication
process as a
whole, of which it forrns only a part.
From this general perspective, we may cmdely characterize the
television communicative process as follows. The institutional
structur€s
of broadcasting, with their practices and networks of
production, their
organized relations and technical infrastructures, are required to
Pro-
duce a programme. Production, here, constructs the message. In
one
sense, then, the chcuit begins here. Of course, the production
process is
not without its 'discursive' aspect: it, too, is frarned throughout
by

7. meanings and ideas: knowledge-in-use concerning the routines
of pro-
duction, historically defined technical skills, professional
ideologies,
institutional knowledge, definitions and assumptions,
assumptions
about the audience and so on frame the constitution of the
programme
through this production structure. Further, though the
production
skuctures of television odginate the television discourse, they
do not
constitute a dosed system. They draw topics, treatments,
agendas,
events, personnel, images of the audience, 'definitions of the
situationj
from other sources and other discursive formations within the
wider
socio-cultural and political structure of which they are a
differentiated
part. Philip Elliott has expressed this point succinctly, within a
more
traditional framework, in his discussion of the way in which the
audience is both the 'source' and the 'receiver' of the television
message.
Thus - to borrow Marx's terms - circulation and reception are,
indeed,
'moments' of the production process in television and are
reincorpor-
E N C O D I N G . D E C O D I N G
ated, via a number of skewed and structured 'feedbacks', into
the
production process itself. The consumption or reception of the
television

8. message is thus also itself a 'moment' of the production process
in its
larger sense, though the latter is 'predominant' because it is the
'point of
departure for the realization' of the message. Production and
reception
of the television message are not, therefore, identical, but they
are
related: they are differentiated moments within the totality
formed by
the social relations of the communicative process as a whole.
At a certain point, however, the broadcasting structures must
yield
encoded messages in the form of a meaningful discourse. The
institution-societal relations of production must pass under the
discur-
sive rules of language for its product to be'realized'. This
initiates a
further differentiated moment, in which the formal rules of
discourse
and language are in dominance. Before this message can have
an 'effecf
(however defined), satisfy a 'need' or be put to a 'use', it must
first be
appropriated as a meaningful discourse and be meaningfully
decoded. It
is this set of decoded meanings which 'have an effect',
influence,
entertain, instruct or persuade, with very complex perceptual,
cogni-
tive, emotional, ideological or behavioural consequences. In a
'determi-
nate' moment the structure employs a code and yields a
'message': at
another determinate moment the 'message', via its decodings,

9. issues
into the structure of social practices. We are now fully aware
that this re-
entry into the practices of audience reception and 'use' cannot
be
understood in simple behavioural terms. The typical processes
ident-
ified in positivistic research on isolated elements - effects, uses,
'gratifi-
cations' - are themselves framed by structures of understanding,
as well
as being produced by social and economic relations, which
shape their
'realizationi at the reception end of the chain and which permit
the
meanings signified in the discourse to be transposed into
practice or
consciousness (to acquire social use value or political
effectivity).
Clearly, what we have labelled in the diagram @elow) 'meaning
strucfures 1' and 'meaning structures 2' may not be the same.
They do
not constitute an'immediate identif. The codes of encoding and
decoding may not be perfectly symmetrical. The degrees of
symmetry -
that is, the degrees of 'understanding' and 'misunderstanding' in
the
communicative exchange - depend on the degrees of
symmetry/asyrrr
metry (relations of equivalence) established between the
positions of the
'personifications', encoder-producer and decoder-receiver. But
this in
tum depends on the degrees of identity/non-identity between the
codes

10. which perfectly or imperfectly transmit, interrupt or
systematically
S T U A R T H A L L
,r'/'^"#tml:;*X
,
encodilS
,/ mearung
,/ structures 1
frameworks
of knowledge
relations
of production
technical
infrastructure
decoding '.
mearun8
structures 2
frameworks
of knowledge
relations
of production
technical

11. infrastructure
distort what has been transmitted. The lack of fit between the
codes has
a great deal to do with the structural differences of relation and
position
between broadcasters. and audiences, but it also has something
to do
with the aslanmetry between the codes of 'source' and 'receiver'
at the
moment of transformation into and out of the discursive form.
What are
called 'distortions' or 'misunderstandings' adse preciseiy
fromthe lack of
equioalencebetween the two sides in the commuricative
exchange. Once
again, this defines the 'relative autonomy', but
'determinateness', of the
entry and exit of the message in its discursive moments.
The application of this rudimentary paradigm has already begun
to
transform our ulderstanding of the older term, television
'content'. We
are just beginning to see how it might also transform our
understanding
of audience reception, 'reading' and response as well.
Beginnings and
endings have been announced in communications research
before, so
we must be cautious. But there seems some ground for thinking
that a
new and exciting phase in so-called audience research, of a
quite new
kind, may be opening up. At either end of the communicative
chain the

12. use of the semiotic paradigm promises to dispel the lingering
behaviour-
ism which has dogged mass-media research for so long,
especially in
its approach to content. Though we know the television
programme is
not a behavioural input, like a tap on the knee cap, it seems to
have been
atnost impossible for traditional researchers to conceptualize
the corr-
municative process without lapsing into one or other variant of
low-
flying behaviourism. We know, as Gerbner has remarked, that
representations of violence on the TV screen 'are not violence
but
E N C O D I N G , D E C O D I N G
messages about violence': but we have continued to research the
ques-
tion of violence, for example, as iI we were unable to
comprehend this
epistemological distinction.
The televisual sign is a complex one. It is itseu constituted by
the
combination of two types of discourse, visual and aural.
Moreover, it is
an iconic sign, in Peirce's terminology, because 'it possesses
some of the
properties of the thing represented'. This is a point which has
led to a
great deal of confusion and has provided the site of intense
controversy
in the study of visual language. Since the visual discourse
translates a

13. three-dimensional world into two-dimensional planes, it cannot
of
corrse, be the referent or concept it signifies. The dog in the
film can
bark but it cannot bite! Reality exists outside language, but it is
con-
stantly mediated by and through language: and what we can
know and
say has to be produced in and through discourse. Dscursive
'knowl-
edge' is the product not of the transparent representation of the
'real' in
language but of the articulation of language on real relations
and con-
ditions. Thus there is no intelligible discourse without the
operation of a
code. Iconic signs are therefore coded signs too - even if the
codes here
work differently from those of other signs. There is no degree
zero in
language. Naturalism arrd'realism'- the apparent fidelity of the
rep-
resentation to the thing or concept represented - is the result,
the effect,
of a cefain specific articulation of language on the 'real'. It is
the result
of a discursive practice.
Certain codes may, of course, be so widely distributed in a
specific
language comrnunity or culture, and be learned at so early an
age, that
they appear not to be constructed - the effect of an articulation
between
srgn and referent - but to be 'naturally' given. Simple visual
signs

14. aPpear to have achieved a 'near-universality' in this sense:
though
evidence remains that even apparently 'natural' visual codes are
culfure-
specific. However, this does not mean that no codes have
intervened;
rather, that the codes have been profo lundly ruturalized. The
operation of
naturalized codes reveals not the transpatencv and ,naturalness,
of
language but the depth, the habituatior, and the near-
universality of the
codes in use. They produce apparently 'natural, recognitions.
This has
the (ideological) effect of concealing the practices of coding
which are
present. But we must not be fooled by appearances. Actually,
what
naturalized codes demonstrate is the degree of habituation
produced
when there is a fundamental alignment and reciprocity - an
achieved
equivalence - between the encoding and decoding sides of an
exchange
of meanings. The functioning of the codes on the decoding side
will
S T U A F | T H A L L
frequently assume the status of naturalized perceDtions, This
leads us to
think that the visual sign for 'cow' actually r:s (raiher than
represents) lhe
anirnal, cow. But if we thhk of the visual representation of a

15. cow in a
manual on animal husbandry - and, even more, of the linguistic
sign
'cow' - we can see that both, in different degrees, are albitrury
wlth
respect to the concept of the animal they represent. The
articulation of
an arbitrary sign - whether visual or verbal - with the concept of
a
referent is the product not of nature but of convention, and the
conven-
tionalism of discourses requires the intervention, the support, of
codes.
Thus Eco has argued that iconic signs 'look like obiects in the
real world
because they reproduce the conditions (that is, the codes) of
perception
in the viewer'. These 'conditions of perception' are, however,
the result
of a highly coded, even if vtutually unconscious, set of
operations -
decodings. This is as true of the photographic or televisual
image as it is
of any other sign. Iconic signs are, however, particularly
r,llnerable to
being 'read' as natural because visual codes of perception are
very
widely distributed and because this type of sign is less arbitrary
than a
linguistic sign: the linguistic sign, 'cow', possesses none of the
properties
of the thing represented, whereas the visual sign appears to
possess
some of those properties.
This may help us to clarify a confusion in current linguistic

16. theory
and to define precisely how some key terms are being used in
this
article. Lingnistic theory frequently employs the distinction
'denotation'
and 'connotation'. The term 'denotation' is widely equated with
the
literal meaning of a sign: because this literal meaning is almost
univer-
sally recognized, especially when visual discourse is being
employed,
'denotation' has often been confused with a literal transcription
of
'reality'in language - and thus with a 'natural sign', one
pioduced
without the interqention of a code. 'Connotation', on the other
hand, is
employed simply to refer to less fixed and therefore more
conventiona-
Iized and changeable, associative meanings, which clearly vary
frorn
instance to instance and therefore must depend on the
intervention of
codes.
We do not use the distinction - denotation/connotation - in this
way. From our point of view, the distinction is an analytic one
only . It is
useful, in analysis, to be able to apply a rough rule of thumb
which
distinguishes those aspects of a sign which appear to be taken,
in any
language community at any point in time, as its 'literal' meaning
(deno-
tation) from the more associative meanings for the sign which it
is

17. possible to generate (connotation). But analytic distinctions
must not be
E N C O O I N G , D E C O D I N G
confused with distinctions in the real world. There will be very
few
instances in which signs organized in a discourse sig ly only
their
'literal' (that is, near-universally consensualized) meaning. In
actual
discourse most signs will combine both the denotative and the
connota-
llrve aspects (as redefined above). It may, then, be asked why
we retain
the distinction at all. It is largely a matter of analytic value. It
is because
signs appear to acquire their full ideological value - appear to
be open to
articulation with wider ideological discourses and meanings - at
the
level of their 'associative' meanings (that is, at the connotative
level) -
for here 'meanings' are not apparently fixed in natural
perception (that
is, they are not fully naturalized), and their fluidity of meaning
and
association can be more fully exploited and transformed. So it is
at the
connotative lnel of the sign that situational ideologies alter and
trans-
form signi{ication. At this level we can see more clearly the
active
intervention of ideologies in and on discourse: here, the sign is
open to
new accentuations and, in Volo5inov's terms, enters fully into

18. the
struggle over meanings - the class struggle in language. This
does not
mean that the denotative or 'literal meaning is outside ideology-
Indeed, we could say that its ideological value is strongly fixed
-becatse
it has become so fully universal and'natural'. The terms
'denotation'
and 'connotation', then, are merely useful analytic tools for
distinguish-
ing, in particular contexts, between not the presence/absence of
ideo-
logy in language but the different levels at which ideologies and
discourses intersect.
The level of connotation of the visual sign, of its contextual
refer-
ence and positioning in different discursive fields of meaning
and
association, is the point where already coded signs intersect
with the deep
semantic codes of a culture and take on additional, more active
ideologi-
cal dimensions. We might take an example from advertising
discourse.
Here, too, there is no 'purely denotative', and certainly no
'natural',
representation. Every visual sign in advertising connotes a
quality,
situation, value or inference, which is present as an implication
or
implied meaning, depending on the connotational positioning.
In
Barthes's example, the sweater always signifies a'warm garment'
(deno-
tation) and thus the activity/value of'keeping warm'. But it is

19. also
possible, at its more connotative levels, to signify'the coming of
winter'
or 'a cold day'. And, in the specialized sub-codes of fashion,
sweater
rnay also connote a fashionable style of hnute couture or,
alternatively, an
informal style of dress. But set against the right visual
background and
positioned by the romantic sub-code, it may connote 'long
autumn walk
S T U A R T H A L L
in the woods'. Codes of this order clearly contract relations for
the sign
with the wider universe of ideologies in a society. These codes
are the
means by which power and ideology are made to signify in
particular
discourses. They refer signs to the 'maps of meaning' into which
any
culture is classified; and those 'maps of social reality' have the
whole
range of social meanings, practices, and usages, power and
interest
'written in' to them. The connotative levels of signifiers,
Barthes
remarked, 'have a close communication with culture,
knowledge, his-
tory, and it is through them, so to speak, that the environmental
world
invades the linguistic and semantic system. They are, if you
like, the

20. fragments of ideology'.
The so-called denotative IneI of tl:.e televisual sign is fixed by
certain, very complex (but limited or 'closed') codes. But its
connotative
leoel, thortgh also bounded, is more open, subiect to more
active frazs-
formations, which exploit its polysemic values. Any such
already constr-
tuted sign is potentially transformable into more than one
connotative
configuration. Polysemy must not, however, be confused with
plural-
ism. Connotative codes are not eql.Jal among themselves. Any
society/
culture tends, with varying degrees of closure, to impose its
classifi-
cations of the social and cultural and politicai world. These
constitute a
dominant culturnl order, though it is neither univocal nor
uncontested.
This question of the 'skucture of discourses in dominance' is a
cmcial
point. The different areas of social life appear to be mapped out
into
discursive domains, hierarchically organized into dominant or
preferred
meanings. New, problematic or troubling events, which breach
our
expectancies and run counter to out 'common-sense constructs',
to our
'taken-for-granted' knowledge of social structures, must be
assigned to
their discursive domains before they can be said to'make sense'.
The
most comnon way of 'mapping' them is to assign the new to

21. some
domain or other of the existing'maps of problematic social
reality'. We
say dominant, not 'deterrnined', because it is always possible to
order,
classify, assign and decode an event within more than one
'mapping'.
But we say 'dominant' because there exists a pattern of
'preferred
readings'; and .hese both have the
institutionaUpoliticaVideological
order imprinted in them and have themselves become
institutionalized.
The domains of 'preferred meanings' have the whole social order
em-
bedded in them as a set of meanings, practices and beliefs: the
everyday
knowledge of social structures, of 'how things work for all
practical
purposes in this culture', the rank order of power and interest
and the
structure of legitimations, limits and sanctions. Thus to clarify a
'misun-
E N C O D t N G , D E C O D T N G
derstanding' at the connotative level, we must refer, through the
codes,
to the orders of social life, of economic and political power and
of
ideology. Further, since these mappings are 'structured in
dominance'
but not closed, the communicative process consists not in the
unproble-
matic assignment of every visual item to its given position
within a set of

22. prearranged codes, but of peformntitse rules - nrJes of
competence and
use, of logics-in-use - which seek actively to enlorce or pre-fer
one
semantic domain over another and rule items into and out of
their
appropriate meaning-sets. Formal semiology has too often
neglected
this practice of interpretatire unrk, tho'tg! this constitutes, in
fact, the
real relations of broadcast practices in television.
In speaking of dominant mennings, then, we are not talking
about a
one-sided process which govems how all events will be
signified. It
consists of the 'work' required to enforce, win plausibfity for
and
command as legitimate a decoding of the event within the lirrLit
of
dominant definitions in which it has been connotatively
signified. Temi
has remarked:
By the word ruding we mean not only the capacity to identify
and
decode a certain number of signs, but also the subjective
capacity to
put them into a creative relation between themselves and with
other
signs: a capacity which is, by itself, the condition for a
complete
awareness of one's total ennronmenr,
Our quarrel here is with the notion of 'subjective capaclty', as if
the

23. referent of a televisional discourse were an objective fact but
the in-
terpretative level were an individualized and private matter.
Quite the
opposite seems to be the case. The televisual practice takes
'objective'
(that is, systemic) responsibility precisely for the relations
which dispar-
ate signs contract with one another in any discursive instance,
and thus
conthually rearranges, delimits and prescribes into what
'awareness of
one's total environment' these items are arranged.
This brings us to the question of misunderstandings. Television
producers who find their message 'failing to get across' are
fTequently
concemed to straighten out the kinls in the communication
chain, thus
facilitating the 'effectiveness' of their communication. Much
research
which claims the objectivity of 'poliry-oriented analysis'
reproduces this
administrative goal by attempting to discover how much of a
message
the audience recalls and to improve the extent of understanding.
No
doubt misunderstandings of a literal kind do exist. The viewer
does not
know the terms employed, cannot follow the complex logic of
argument
S T U A R T H A L L

24. or exposition/ is unfamiliar with the language, finds the
concepts too
alien or difficult or is foxed by the expository narative. But
more often
broadcasters are concerned that the audience has failed to take
the
meaning as they - the broadcasters - intended. What they really
mean to
say is that viewers are not operating within the 'dominant' or
'preferred'
code. Their ideal is 'perfectly transparent communication'.
Instead,
what they have to confront is 'systematically distorted
communication'.
In recent years discrepancies of this kind have usually been
explained by reference to 'selective perception'. This is the door
via
which a residual pluralism evades the compulsions of a highly
struc-
tured, asymmetrical and non-equivalent process. Of course,
there will
always be private, individual, variant readings. But'selective
percep-
tion' is almost never as selective, random or privatized as the
concept
suggests. The pafterns exhibit, across individual variants,
significant
clusterings. Arry new approach to audience studies will
therefore have
to begin with a critique of 'selective perceptionl theory.
It was argued earlier that since there is no necessary
correspondence
between encoding and decoding, the former can attempt to 'pre-
fer'but

25. cannot prescribe or guarantee the latter, which has its own
conditions of
existence. Unless they are wildly aberrant, encoding will have
the effect
of constructing some of the limits and parameters within which
decod-
ings will operate. If there were no lirnits, audiences could
simply read
whatever they liked into any message. No doubt some total
misunder-
standings of this kind do exist. But the vast range must corLtajr.
some
degree of reciprocity between encoding and decoding moments.
other-
wise we could not speak of an effective communicative
exchange at all.
Nevertheless, this 'correspondence' is not given but constructed.
It is
not 'natural' but the product of an articulation between two
distinct
moments. And the former cannot determine or guarantee, in a
simPle
sense, which decoding codes will be employed. Otherwise
corrunuru-
cation would be a perfectly equivalent circuit, and every
message would
be an instance of 'perfectly transparent communication'. We
must think,
then, of the variant articulations in which encoding/decoding
can be
combined. To elaborate on this, we offer a hypothetical analysis
of some
possible decoding positions, in order to reinforce the Point of
'no
necessary correspondence',

26. We identify three hypothetical positions from which decodings
of a
televisual discourse may be constructed. These need to be
empirically
tested and refined. But the argument that decodings do not
follow
inevitably from encodings, that they are not identical,
reinJorces the
E N C O D I N G , D E C O D I N G
argument of 'no necessary correspondence'. It also helps to
deconstruct
the common-sense meaning of 'misunderstanding' in terms of a
theory
of 'systematically distorted communication'.
The first hypothetical position is that of the dominant-
hegemonic
position. t{hen the viewer takes the connoted meaning hom, say,
a
television newscast or current affairs programne full and
straight, and
decodes the message in terms of the reference code in which it
has been
encoded, we might say that the viewer is operating inside tfu
dominant
code. T}:.is is the ideal-typical case of 'perfectly transparent
communi-
cation' - or as close as we are likely to come to it 'for all
practical
purposes'. Within this we can distinguish the positions produced
by the
professinnal code. This is the position (produced by what we
perhaps
ought to identify as the operation of a 'metacode') which the

27. pro-
fessional broadcasters assume when encoding a message which
has
already been signified in a hegemonic manner. The professional
code is
'relatively independent' of the dominant code, in that it applies
criteria
and transformational operations of its own, especially those of a
technico-practical nature. The professional code, however,
operates
within the 'hegemony' of the dominant code. Indeed, it serves to
repro-
duce the dorninant definitions precisely by bracketing their
hegemonic
quality and operating instead with displaced professional
codings which
foreground such apparently neutral-technical questions as visual
qua-
lity, news and presentational values, televisual quality,
,professiona-
lism' and so on. The hegemonic interpretations of, say, the
politics of
Northern Ireland, or the Chilean coap or the Industrial Relations
Bill are
pnncipally generated by political and military elites: the
particular
choice of presentational occasions and formats, the selection of
person-
nel, the choice of images, the staging of debates are selected
and
combined through the operation of the professional code. How
the
oroadcasting professionals are able bofh to operate with
,relatively auton-
omous' codes of th eir own and to act in such a wav as to
reproduce (not

28. without contradiction) the hegemonic signification of euents is
a com-
Plex matter which cannot be further spelled out here. It must
suffice to
say that the professionals are linked with the defining elites not
onty
by the institutional position of broadcasting itsel-f as an ,ideo-
logical apparatus', but also by the structure of access (that is,
the sysiem-
atic 'over-accessing' of selective elite personnel and their
,definition ofthe- situation' in television). It may even be said
that the professional
codes serve to reproduce hegemonic definitions specifically by
nofooer y biasing their operations in a dominant direction:
ideoloeical
S T U A R T H A L L
reproduction therefore takes place here inadvertently,
unconsciously,
'behind men's backs'. Of course, conflicts, contradictions and
even
misunderstandings regularly arise between the dominant and the
pro-
fessional significations and their signifying agencies.
The second posidon we would identify is that of the negotiated
code
or position. Majority audiences probably understand quite
adequately
what has been dominantly defined and professionally signified.
The
dominant definitions, however, are hegemonic precisely because
they

29. represent definitions of situations and events which are 'in
dorninance'
(8lobal). Dominant definitions connect events, implicitly or
explicitly, to
grand totalizations, to the Breat syntagmatic views-of-the-
world: they
take 'large views' of issues: they relate events to the 'national
interest' or
to the level of geo-politics, even if they make these connections
in
truncated, inverted or mystified ways. The definition of a
hegemonic
viewpoint is (a) that it defines within its terms the mental
horizon, the
universe, of possible meanings, of a whole sector of relations in
a society
or culture; and (b) that it carries with it the stamp of legitimacy
- it
appears coterminous with what is 'natural', 'inevitable', 'taken
for
granted' about the social order. Decoding within the negotiated
ansion
contains a mixture of adaptive and oppositional elements: it
a&nowl-
edges the legitimary of the hegemonic definitions to make the
gmnd
significations (abstract), while, at a more restricted, situational
(situated)
level, it makes its own ground rules - it operates with
excePtions to the
rule. It accords the privileged position to the dominart
definitions of
events while reserving the right to make a more negotiated
application
to 'local conditions', to its own more corryrate posltions. This
negotiated

30. version of the dominant ideology is thus shot through with
contradic-
tions, though these are only on certain occasions brought to full
visi-
bility. Negotiated codes operate through what we might call
particular
or situated logics: and these logics are sustained by their
differential and
unequal relation to the discourses and logics of power. The
simplest
example of a negotiated code is that which governs the response
of a
worker to the notion of an Industrial Relations Bill limiting the
dght to
strike or to arguments for a wages freeze. At the level of the
'national
interest' economic debate the decoder may adopt the hegemonic
defi-
nition, agreeing that 'we must al1 pay ourselves less in order to
combat
inflation'. This, however, may have little or no relation to
his/her will-
ingness to go on strike for better pay and conditions or to
oppose the
Industrial Relations Bill at the level of shop-floor or union
organization.
We suspect that the great maiority of so-called
'misulderstandings' arise
E N C < ) D I N G . D E C O D I N G
from the contradictions and disjunctures between hegemonic-
dominant
encodings and negotiated-corporate decodings. It is just these
mis-
matches in the levels which most provoke defining elites and

31. pro-
fessionals to identify a 'failure in comrnunications'.
Finally, it is possible for a viewer perfectly to understand both
the
literal and the connotative inflection given by a discourse but to
decode
the message in a globally contrary way. He/she detotalizes the
message
in the preferred code in order to retotalize the message within
some
alternative framework of reference. This is the case of the
viewer who
listens to a debate on the need to limit wages but 'reads' every
mention
of the 'national interesf as 'class interest'. He/she is operating
with what
we must call an oppositional code. One of the most significant
political
moments (they also coincide with crisis points within the
broadcasting
organizations themselves, for obvious reasons) is the point
when events
which are normally signified and decoded in a negotiated way
begin to
be given an oppositional reading. Here the 'politics o{
signification' - the
struggle in discourse - is ioined.
NOTE
This article is an edited extract from Tncoding and Decoding in
Television Discourse ,
CCCS Stencilled Paper no. 7.

32. Duke University School of Law
Freedom in the Commons: Towards a Political Economy of
Information
Author(s): Yochai Benkler
Source: Duke Law Journal, Vol. 52, No. 6 (Apr., 2003), pp.
1245-1276
Published by: Duke University School of Law
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33. All use subject to http://about.jstor.org/terms
Lecture
FREEDOM IN THE COMMONS: TOWARDS A
POLITICAL ECONOMY OF INFORMATION
YOCHAI BENKLERt
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,

34. 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.
t 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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1246 DUKE LAW JOURNAL [Vol. 52:1245
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-

36. quality
software.2 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.3
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-
tles.
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-
tice.
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

37. 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
MOODY, REBEL CODE: [THiE INSIDE STORY OF LINUX
AND THE OPEN SOURCE REVOLUTION]
(2001).
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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2003] FREEDOM IN THE COMMONS 1247
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,

38. 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

39. 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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40. 2018 22:39:42 UTC
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1248 DUKE LA W JOURNAL [Vol. 52:1245
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

41. 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.

42. 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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2003] FREEDOM IN THE COMMONS 1249
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-

43. 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

44. 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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1250 DUKE LA W JOURNAL [Vol. 52:1245
II. SOME ECONOMIC PARAMETERS OF THE MOMENT
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

46. 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

47. 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,"

48. 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.4 Ranging from the introduction of telegraph to
control
the rolling stock of railroads, which, as Chandler has shown,5
made
Western Union the first nationwide prototype for modern
corporate or-
ganization, to the invention of double-entry bookkeeping,

49. 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."
4. JAMES R. BENIGER, THE CONTROL REVOLUTION:
TECHNOLOGICAL AND ECONOMIC
ORIGINS OF THE INFORMATION SOCIETY 291-398 (1986).
5. ALFRED D. CHANDLER, THE VISIBLE HAND 79-205
(1977).
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1252 DUKE LAW JOURNAL [Vol. 52:1245

50. "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

51. 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,

52. 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-
tion.6
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

53. 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

54. 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
THE RATE AND DIRECTION OF INVENTIVE ACTIVITY:
ECONOMIC AND SOCIAL FACTORS 609
(1962).
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1254 DUKE LAWJOURNAL [Vol. 52:1245
tion of production in managed firms. In contrast, human beings

55. 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

56. 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

57. 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-
* 7
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

58. 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
search8 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

59. 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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1256 DUKE LAW JOURNAL [Vol. 52:1245
council elections in Raleigh, North Carolina in 2001.9 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

60. 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

61. 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 http://www.dnet.org (last visited Apr. 12,
2003) (on file with the
Duke Law Journal).
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2003] FREEDOM IN THE COMMONS 1257

62. 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
wanted.
But we also see this phenomenon occur less diffusely as

63. well.1o
The Mars "clickworkers" project was an experiment run by
NASA
that allowed 85,000 people to collaborate on mapping Mars
craters."
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."'2 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" (www.wikipedia.com), an online
ency-
clopedia produced by distributed contributors, to
encyclopedia.com,
produced by Columbia Encyclopedia. Look up the term
"copyright"
on encyclopedia.com 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

64. 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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1258 DUKE LA W JO URNAL [Vol. 52:1245
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 encyclopedia.com, and it is collaboratively produced by
about 2000
volunteers.
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

65. through
distributed peer production. Two examples are the Open
Directory
Project (dmoz.org), 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.14
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

66. exten-
sion of the Digital Millennium Copyright Act (DMCA)'6 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 http://slashdot.org).
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
http://cryptome.org/sssca.htm. 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

67. 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-

68. 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 barbie.com, with "Activities and Games for Girls Online!",
and
we see barbiebazaar.com, with "Barbie, Barbie dolls, Barbie
doll
magazine, etc.," but then very quickly we start seeing sites like
adios-
barbie.com, "A Body Image Site for Every Body." We see more
Bar-
bie collectibles, but then we see "Armed and Dangerous, Extra
Abra-

69. 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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1260 DUKE LA W JOURNAL [Vol. 52:1245
What happens when we run the same search on Overture, the
search engine used by Go.com, which is the Internet portal
produced
by Disney? We get "Barbies, New and Preowned" at Internet-
doll.com, BarbieTaker wholesale Barbie store, "Toys for All
Ages" at
Amazon.com, 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

70. that AOL
replaced Overture with Google as its search engine in 2002,
and uses
the Open Directory Project database for its directory.17
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

71. 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
III. SOME THOUGHTS ON THE POLITICAL MORALITY
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

72. 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

73. 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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1262 DUKE LAW JOURNAL [Vol. 52:1245
tunity actually to relax the efficient limit on the plausible set
of politi-

74. 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
production.
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

75. 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."'8 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,

76. 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.'9 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

77. of the day providing a pale reflection of widespread
participation in
discourse.
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

78. 19. E.g., C. EDWIN BAKER, ADVERTISING AND A
DEMOCRATIC PRESS (1994) (arguing
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
policy); NEIL POSTMAN, AMUSING OURSELVES TO
DEATH: PUBLIC DISCOURSE IN THE AGE
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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1264 DUKE LAW JOURNAL [Vol. 52:1245
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

79. 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

80. nation of political narcissists, incapable of true political
discourse.21
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-
ernance.22
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-

81. 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 Kuro5hin23 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

82. 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
Koren24 and
William Fisher,25 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.26 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

83. the mass media environment, meaning is made centrally.
Commercial
mass media owners, and other professional makers of meaning
who
23. Kuro5hin, Front Page, at http://www.kuro5hin.org (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).
26. JOHN FISKE, TELEVISION CULTURE 95 (1987).
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1266 DUKE LAW JOURNAL [Vol. 52:1245
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

84. 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-

85. 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
provider:
27. Center for Digital Democracy, Cisco 1999 White Paper:
Controlling Your Network--A
Must for Cable Operators, at
http://www.democraticmedia.org/issues/openaccess/cisco.html
(last
visited Apr. 12, 2003) (on file with the Duke Law Journal).
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86. 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.2
For example, AOL Time Warner could, as a practical matter,
speed
up access to CNN.com, 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-

87. frain from using policy routers is a crisp example29-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

88. 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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1268 DUKE LAW JOURNAL [Vol. 52:1245
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
knowledgeably.
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

89. 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.

90. 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

91. 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

92. 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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1270 DUKE LAW JOURNAL [Vol. 52:1245
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.30 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

94. goals.
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-

95. 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).
31. BRUCE A. ACKERMAN, SOCIAL JUSTICE IN THE
LIBERAL STATE 24-30 (1980).
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2003] FREEDOM IN THE COMMONS 1271
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-

96. 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,32 and hence the improvement in the quality of
democratic dis-
course may lead to some improvement in the minimal
endowments

97. 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
equality.
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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1272 DUKE LAW JO URNAL [Vol. 52:1245
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-

99. 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,

100. 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

101. 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

102. 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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103. 1274 DUKE LAW JOURNAL [Vol. 52:1245
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.

104. 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.33
At the logical and content layer, we are confronted with the en-
closure movement that James Boyle has so eloquently
described and
criticized,34 and that David Lange saw many years ago when
he first
shone a light on the public domain.35 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
http://www.chicagocivicnet.net (last visited Apr.
21,200) (on file with the Duke Law Journal).
34. James Boyle, The Second Enclosure Movement and the

105. 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 http://www.ucitaonline.com (last visited
Apr. 21, 2003) (on file with
the Duke Law Journal).
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2018 22:39:42 UTC
All use subject to http://about.jstor.org/terms
2003] FREEDOM IN THE COMMONS 1275
tion, which no one has discussed more completely and lucidly
than
Jerry Reichman;37 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-

106. 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.

107. 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
(1999).
38. Jessica Litman, The Exclusive Right to Read, 13
CARDOZO ARTS & ENT. L.J. 29, 32-33
(1994).
39. Jessica Litman, Electronic Commerce and Free Speech, 1 J.
ETHICS & INFO. TECH. 213,
219 (1999), available at
http://www.law.wayne.edu/litman/papers/freespeech.pdf.
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2018 22:39:42 UTC
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1276 DUKELAWJOURNAL [Vol. 52:1245

108. CONCLUSI[ON
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 seizin~ 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

109. 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.
1276 D UKE LAW JOURNAL [Vol. 52:1245
CONCLUSION
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-

110. 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.
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2018 22:39:42 UTC
All use subject to http://about.jstor.org/terms
Contents[1245]1246124712481249125012511252125312541255
12561257125812591260126112621263126412651266126712681
2691270127112721273127412751276Issue Table of
ContentsDuke Law Journal, Vol. 52, No. 6 (Apr., 2003), pp.
1077-1313Front MatterPerfect Substitutes or the Real Thing?
[pp. 1077-1166]Waivers of State Sovereign Immunity and the
Ideology of the Eleventh Amendment [pp. 1167-
1243]LectureFreedom in the Commons: Towards a Political
Economy of Information [pp. 1245-1276]NoteThe Ambiguity of
Gatt Article XXI: Subtle Success or Rampant Failure? [pp.
1277-1313]Back Matter

111. Chapter I.
THE WORLD OUTSIDE AND THE PICTURES IN OUR
HEADS
There is an island in the ocean where in 1914 a few Englishmen,
Frenchmen, and Germans
lived. No cable reaches that island, and the British mail steamer
comes but once in sixty
days. In September it had not yet come, and the islanders were
still talking about the latest
newspaper which told about the approaching trial of Madame
Caillaux for the shooting of
Gaston Calmette. It was, therefore, with more than usual
eagerness that the whole colony
assembled at the quay on a day in mid-September to hear from
the captain what the verdict
had been. They learned that for over six weeks now those of
them who were English and
those of them who were French had been fighting in behalf of
the sanctity of treaties against
those of them who were Germans. For six strange weeks they
had acted as if they were
friends, when in fact they were enemies.
But their plight was not so different from that of most of the
population of Europe. They
had been mistaken for six weeks, on the continent the interval
may have been only six days
or six hours. There was an interval. There was a moment when
the picture of Europe on
which men were conducting their business as usual, did not in
any way correspond to the
Europe which was about to make a jumble of their lives. There

112. was a time for each man
when he was still adjusted to an environment that no longer
existed. All over the world as
late as July 25th men were making goods that they would not be
able to ship, buying goods
they would not be able to import, careers were being planned,
enterprises contemplated,
hopes and expectations entertained, all in the belief that the
world as known was the world
as it was. Men were writing books describing that world. They
trusted the picture in their
heads. And then over four years later, on a Thursday morning,
came the news of an
armistice, and people gave vent to their unutterable relief that
the slaughter was over. Yet in
the five days before the real armistice came, though the end of
the war had been celebrated,
several thousand young men died on the battlefields.
Looking back we can see how indirectly we know the
environment in which nevertheless
we live. We can see that the news of it comes to us now fast,
now slowly; but that whatever
we believe to be a true picture, we treat as if it were the
environment itself. It is harder to
remember that about the beliefs upon which we are now acting,
but in respect to other
peoples and other ages we flatter ourselves that it is easy to see
when they were in deadly
earnest about ludicrous pictures of the world. We insist, because
of our superior hindsight,
that the world as they needed to know it, and the world as they
did know it, were often two
quite contradictory things. We can see, too, that while they
governed and fought, traded and
reformed in the world as they imagined it to be, they produced

113. results, or failed to produce
any, in the world as it was. They started for the Indies and
found America. They diagnosed
evil and hanged old women. They thought they could grow rich
by always selling and never
buying. A caliph, obeying what he conceived to be the Will of
Allah, burned the library at
Alexandria.
Writing about the year 389, St. Ambrose stated the case for the
prisoner in Plato's cave who
resolutely declines to turn his head. "To discuss the nature and
position of the earth does not
help us in our hope of the life to come. It is enough to know
what Scripture states. 'That He
hung up the earth upon nothing' (Job xxvi. 7). Why then argue
whether He hung it up in air
or upon the water, and raise a controversy as to how the thin air
could sustain the earth; or
why, if upon the waters, the earth does not go crashing down to
the bottom?... Not because
the earth is in the middle, as if suspended on even balance, but
because the majesty of God
constrains it by the law of His will, does it endure stable upon
the unstable and the void."
(1)
It does not help us in our hope of the life to come. It is enough
to know what Scripture
states. Why then argue? But a century and a half after St.
Ambrose, opinion was still
troubled, on this occasion by the problem of the antipodes. A
monk named Cosmas, famous

114. for his scientific attainments, was therefore deputed to write a
Christian Topography, or
"Christian Opinion concerning the World."(2) It is clear that he
knew exactly what was
expected of him, for he based all his conclusions on the
Scriptures as he read them. It
appears, then, that the world is a flat parallelogram, twice as
broad from east to west as it is
long from north to south., In the center is the earth surrounded
by ocean, which is in turn
surrounded by another earth, where men lived before the deluge.
This other earth was
Noah's port of embarkation. In the north is a high conical
mountain around which revolve
the sun and moon. When the sun is behind the mountain it is
night. The sky is glued to the
edges of the outer earth. It consists of four high walls which
meet in a concave roof, so that
the earth is the floor of the universe. There is an ocean on the
other side of the sky,
constituting the "waters that are above the firmament." The
space between the celestial
ocean and the ultimate roof of the universe belongs to the blest.
The space between the earth
and sky is inhabited by the angels. Finally, since St. Paul said
that all men are made to live
upon the "face of the earth" how could they live on the back
where the Antipodes are
supposed to be? With such a passage before his eyes, a
Christian, we are told, should not
'even speak of the Antipodes.'"(3)
Far less should he go to the Antipodes; nor should any Christian
prince give him a ship to
try; nor would any pious mariner wish to try. For Cosmas there
was nothing in the least

115. absurd about his map. Only by remembering his absolute
conviction that this was the map
of the universe can we begin to understand how he would have
dreaded Magellan or Peary
or the aviator who risked a collision with the angels and the
vault of heaven by flying seven
miles up in the air. In the same way we can best understand the
furies of war and politics by
remembering that almost the whole of each party believes
absolutely in its picture of the
opposition, that it takes as fact, not what is, but what it
supposes to be the fact. And that
therefore, like Hamlet, it will stab Polonius behind the rustling
curtain, thinking him the
king, and perhaps like Hamlet add:
"Thou wretched, rash, intruding fool, farewell!
I took thee for thy better; take thy fortune."
2
Great men, even during their lifetime, are usually known to the
public only through a
fictitious personality. Hence the modicum of truth in the old
saying that no man is a hero to
his valet. There is only a modicum of truth, for the valet, and
the private secretary, are often
immersed in the fiction themselves. Royal personages are, of
course, constructed
personalities. Whether they themselves believe in their public
character, or whether they
merely permit the chamberlain to stage-manage it, there are at
least two distinct selves, the

116. public and regal self, the private and human. The biographies of
great people fall more or
less readily into the histories of these two selves. The official
biographer reproduces the
public life, the revealing memoir the other. The Charnwood
Lincoln, for example, is a noble
portrait, not of an actual human being, but of an epic figure,
replete with significance, who
moves on much the same level of reality as Aeneas or St.
George. Oliver's Hamilton is a
majestic abstraction, the sculpture of an idea, "an essay" as Mr.
Oliver himself calls it, "on
American union." It is a formal monument to the state-craft of
federalism, hardly the
biography of a person. Sometimes people create their own
facade when they think they are
revealing the interior scene. The Repington diaries and Margot
Asquith's are a species of
self-portraiture in which the intimate detail is most revealing as
an index of how the authors
like to think about themselves.
But the most interesting kind of portraiture is that which arises
spontaneously in people's
minds. When Victoria came to the throne, says Mr. Strachey,(4)
"among the outside public
there was a great wave of enthusiasm. Sentiment and romance
were coming into fashion;
and the spectacle of the little girl-queen, innocent, modest, with
fair hair and pink cheeks,
driving through her capital, filled the hearts of the beholders
with raptures of affectionate
loyalty. What, above all, struck everybody with overwhelming
force was the contrast
between Queen Victoria and her uncles. The nasty old men,
debauched and selfish,

117. pigheaded and ridiculous, with their perpetual burden of debts,
confusions, and
disreputabilities--they had vanished like the snows of winter
and here at last, crowned and
radiant, was the spring."
M. Jean de Pierrefeu(5) saw hero-worship at first hand, for he
was an officer on Joffre's staff
at the moment of that soldier's greatest fame:
"For two years, the entire world paid an almost divine homage
to the victor of the Maine.
The baggage-master literally bent under the weight of the
boxes, of the packages and letters
which unknown people sent him with a frantic testimonial of
their admiration. I think that
outside of General Joffre, no commander in the war has been
able to realize a comparable
idea of what glory is. They sent him boxes of candy from all the
great confectioners of the
world, boxes of champagne, fine wines of every vintage, fruits,
game, ornaments and
utensils, clothes, smoking materials, inkstands, paperweights.
Every territory sent its
specialty. The painter sent his picture, the sculptor his statuette,
the dear old lady a
comforter or socks, the shepherd in his hut carved a pipe for his
sake. All the manufacturers
of the world who were hostile to Germany shipped their
products, Havana its cigars,
Portugal its port wine. I have known a hairdresser who had
nothing better to do than to
make a portrait of the General out of hair belonging to persons
who were dear to him; a
professional penman had the same idea, but the features were
composed of thousands of

118. little phrases in tiny characters which sang the praise of the
General. As to letters, he had
them in all scripts, from all countries, written in every dialect,
affectionate letters, grateful,
overflowing with love, filled with adoration. They called him
Savior of the World, Father of
his Country, Agent of God, Benefactor of Humanity, etc.... And
not only Frenchmen, but
Americans, Argentinians, Australians, etc. etc.... Thousands of
little children, without their
parents' knowledge, took pen in hand and wrote to tell him their
love: most of them called
him Our Father. And there was poignancy about their effusions,
their adoration, these sighs
of deliverance that escaped from thousands of hearts at the
defeat of barbarism. To all these
naif little souls, Joffre seemed like St. George crushing the
dragon. Certainly he incarnated
for the conscience of mankind the victory of good over evil, of
light over darkness.
Lunatics, simpletons, the half-crazy and the crazy turned their
darkened brains toward him
as toward reason itself. I have read the letter of a person living
in Sydney, who begged the
General to save him from his enemies; another, a New
Zealander, requested him to send
some soldiers to the house of a gentleman who owed him ten
pounds and would not pay.
Finally, some hundreds of young girls, overcoming the timidity
of their sex, asked for
engagements, their families not to know about it; others wished

119. only to serve him."
This ideal Joffre was compounded out of the victory won by
him, his staff and his troops,
the despair of the war, the personal sorrows, and the hope of
future victory. But beside hero-
worship there is the exorcism of devils. By the same mechanism
through which heroes are
incarnated, devils are made. If everything good was to come
from Joffre, Foch, Wilson, or
Roosevelt, everything evil originated in the Kaiser Wilhelm,
Lenin and Trotsky. They were
as omnipotent for evil as the heroes were omnipotent for good.
To many simple and
frightened minds there was no political reverse, no strike, no
obstruction, no mysterious
death or mysterious conflagration anywhere in the world of
which the causes did not wind
back to these personal sources of evil.
3
Worldwide concentration of this kind on a symbolic personality
is rare enough to be clearly
remarkable, and every author has a weakness for the striking
and irrefutable example. The
vivisection of war reveals such examples, but it does not make
them out of nothing. In a
more normal public life, symbolic pictures are no less governant
of behavior, but each
symbol is far less inclusive because there are so many
competing ones. Not only is each
symbol charged with less feeling because at most it represents
only a part of the population,
but even within that part there is infinitely less suppression of
individual difference. The

120. symbols of public opinion, in times of moderate security, are
subject to check and
comparison and argument. They come and go, coalesce and are
forgotten, never organizing
perfectly the emotion of the whole group. There is, after all,
just one human activity left in
which whole populations accomplish the union sacrée. It occurs
in those middle phases of a
war when fear, pugnacity, and hatred have secured complete
dominion of the spirit, either to
crush every other instinct or to enlist it, and before weariness is
felt.
At almost all other times, and even in war when it is
deadlocked, a sufficiently greater range
of feelings is aroused to establish conflict, choice, hesitation,
and compromise. The
symbolism of public opinion usually bears, as we shall see,
[Footnote: Part V.] the marks of
this balancing of interest. Think, for example, of how rapidly,
after the armistice, the
precarious and by no means successfully established symbol of
Allied Unity disappeared,
how it was followed almost immediately by the breakdown of
each nation's symbolic
picture of the other: Britain the Defender of Public Law, France
watching at the Frontier of
Freedom, America the Crusader. And think then of how within
each nation the symbolic
picture of itself frayed out, as party and class conflict and
personal ambition began to stir
postponed issues. And then of how the symbolic pictures of the
leaders gave way, as one by
one, Wilson, Clemenceau, Lloyd George, ceased to be the
incarnation of human hope, and
became merely the negotiators and administrators for a

121. disillusioned world.
Whether we regret this as one of the soft evils of peace or
applaud it as a return to sanity is
obviously no matter here. Our first concern with fictions and
symbols is to forget their value
to the existing social order, and to think of them simply as an
important part of the
machinery of human communication. Now in any society that is
not completely self-
contained in its interests and so small that everyone can know
all about everything that
happens, ideas deal with events that are out of sight and hard to
grasp. Miss Sherwin of
Gopher Prairie,(6) is aware that a war is raging in France and
tries to conceive it. She has
never been to France, and certainly she has never been along
what is now the battlefront.
Pictures of French and German soldiers she has seen, but it is
impossible for her to imagine
three million men. No one, in fact, can imagine them, and the
professionals do not try. They
think of them as, say, two hundred divisions. But Miss Sherwin
has no access to the order of
battle maps, and so if she is to think about the war, she fastens
upon Joffre and the Kaiser as
if they were engaged in a personal duel. Perhaps if you could
see what she sees with her
mind's eye, the image in its composition might be not unlike an
Eighteenth Century
engraving of a great soldier. He stands there boldly unruffled
and more than life size, with a

122. shadowy army of tiny little figures winding off into the
landscape behind. Nor it seems are
great men oblivious to these expectations. M. de Pierrefeu tells
of a photographer's visit to
Joffre. The General was in his "middle class office, before the
worktable without papers,
where he sat down to write his signature. Suddenly it was
noticed that there were no maps
on the walls. But since according to popular ideas it is not
possible to think of a general
without maps, a few were placed in position for the picture, and
removed soon afterwards."
(7)
The only feeling that anyone can have about an event he does
not experience is the feeling
aroused by his mental image of that event. That is why until we
know what others think
they know, we cannot truly understand their acts. I have seen a
young girl, brought up in a
Pennsylvania mining town, plunged suddenly from entire
cheerfulness into a paroxysm of
grief when a gust of wind cracked the kitchen window-pane. For
hours she was
inconsolable, and to me incomprehensible. But when she was
able to talk, it transpired that
if a window-pane broke it meant that a close relative had died.
She was, therefore, mourning
for her father, who had frightened her into running away from
home. The father was, of
course, quite thoroughly alive as a telegraphic inquiry soon
proved. But until the telegram
came, the cracked glass was an authentic message to that girl.
Why it was authentic only a
prolonged investigation by a skilled psychiatrist could show.
But even the most casual

123. observer could see that the girl, enormously upset by her family
troubles, had hallucinated a
complete fiction out of one external fact, a remembered
superstition, and a turmoil of
remorse, and fear and love for her father.
Abnormality in these instances is only a matter of degree. When
an Attorney-General, who
has been frightened by a bomb exploded on his doorstep,
convinces himself by the reading
of revolutionary literature that a revolution is to happen on the
first of May 1920, we
recognize that much the same mechanism is at work. The war,
of course, furnished many
examples of this pattern: the casual fact, the creative
imagination, the will to believe, and
out of these three elements, a counterfeit of reality to which
there was a violent instinctive
response. For it is clear enough that under certain conditions
men respond as powerfully to
fictions as they do to realities, and that in many cases they help
to create the very fictions to
which they respond. Let him cast the first stone who did not
believe in the Russian army
that passed through England in August, 1914, did not accept any
tale of atrocities without
direct proof, and never saw a plot, a traitor, or a spy where
there was none. Let him cast a
stone who never passed on as the real inside truth what he had
heard someone say who
knew no more than he did.
In all these instances we must note particularly one common
factor. It is the insertion

124. between man and his environment of a pseudo-environment. To
that pseudo-environment
his behavior is a response. But because it is behavior, the
consequences, if they are acts,
operate not in the pseudo-environment where the behavior is
stimulated, but in the real
environment where action eventuates. If the behavior is not a
practical act, but what we call
roughly thought and emotion, it may be a long time before there
is any noticeable break in
the texture of the fictitious world. But when the stimulus of the
pseudo-fact results in action
on things or other people, contradiction soon develops. Then
comes the sensation of butting
one's head against a stone wall, of learning by experience, and
witnessing Herbert Spencer's
tragedy of the murder of a Beautiful Theory by a Gang of Brutal
Facts, the discomfort in
short of a maladjustment. For certainly, at the level of social
life, what is called the
adjustment of man to his environment takes place through the
medium of fictions.
By fictions I do not mean lies. I mean a representation of the
environment which is in lesser
or greater degree made by man himself. The range of fiction
extends all the way from
complete hallucination to the scientists' perfectly self-conscious
use of a schematic model,
or his decision that for his particular problem accuracy beyond
a certain number of decimal
places is not important. A work of fiction may have almost any
degree of fidelity, and so
long as the degree of fidelity can be taken into account, fiction
is not misleading. In fact,
human culture is very largely the selection, the rearrangement,

125. the tracing of patterns upon,
and the stylizing of, what William James called "the random
irradiations and resettlements
of our ideas."(8) The alternative to the use of fictions is direct
exposure to the ebb and flow
of sensation. That is not a real alternative, for however
refreshing it is to see at times with a
perfectly innocent eye, innocence itself is not wisdom, though a
source and corrective of
wisdom. For the real environment is altogether too big, too
complex, and too fleeting for
direct acquaintance. We are not equipped to deal with so much
subtlety, so much variety, so
many permutations and combinations. And although we have to
act in that environment, we
have to reconstruct it on a simpler model before we can manage
with it. To traverse the
world men must have maps of the world. Their persistent
difficulty is to secure maps on
which their own need, or someone else's need, has not sketched
in the coast of Bohemia.
4
The analyst of public opinion must begin then, by recognizing
the triangular relationship
between the scene of action, the human picture of that scene,
and the human response to that
picture working itself out upon the scene of action. It is like a
play suggested to the actors
by their own experience, in which the plot is transacted in the
real lives of the actors, and
not merely in their stage parts. The moving picture often
emphasizes with great skill this
double drama of interior motive and external behavior. Two
men are quarreling, ostensibly

126. about some money, but their passion is inexplicable. Then the
picture fades out and what
one or the other of the two men sees with his mind's eye is
reënacted. Across the table they
were quarreling about money. In memory they are back in their
youth when the girl jilted
him for the other man. The exterior drama is explained: the hero
is not greedy; the hero is in
love.
A scene not so different was played in the United States Senate.
At breakfast on the morning
of September 29, 1919, some of the Senators read a news
dispatch in the Washington Post
about the landing of American marines on the Dalmatian coast.
The newspaper said:
FACTS NOW ESTABLISHED
"The following important facts appear already established. The
orders to Rear Admiral
Andrews commanding the American naval forces in the
Adriatic, came from the British
Admiralty via the War Council and Rear Admiral Knapps in
London. The approval or
disapproval of the American Navy Department was not asked....
WITHOUT DANIELS' KNOWLEDGE
"Mr. Daniels was admittedly placed in a peculiar position when
cables reached here stating
that the forces over which he is presumed to have exclusive
control were carrying on what
amounted to naval warfare without his knowledge. It was fully

127. realized that the British
Admiralty might desire to issue orders to Rear Admiral
Andrews to act on behalf of Great
Britain and her Allies, because the situation required sacrifice
on the part of some nation if
D'Annunzio's followers were to be held in check.
"It was further realized that under the new league of nations
plan foreigners would be in a
position to direct American Naval forces in emergencies with or
without the consent of the
American Navy Department...." etc. (Italics mine).
The first Senator to comment is Mr. Knox of Pennsylvania.
Indignantly he demands
investigation. In Mr. Brandegee of Connecticut, who spoke
next, indignation has already
stimulated credulity. Where Mr. Knox indignantly wishes to
know if the report is true, Mr.
Brandegee, a half a minute later, would like to know what
would have happened if marines
had been killed. Mr. Knox, interested in the question, forgets
that he asked for an inquiry,
and replies. If American marines had been killed, it would be
war. The mood of the debate
is still conditional. Debate proceeds. Mr. McCormick of Illinois
reminds the Senate that the
Wilson administration is prone to the waging of small
unauthorized wars. He repeats
Theodore Roosevelt's quip about "waging peace." More debate.
Mr. Brandegee notes that
the marines acted "under orders of a Supreme Council sitting
somewhere," but he cannot
recall who represents the United States on that body. The
Supreme Council is unknown to
the Constitution of the United States. Therefore Mr. New of

128. Indiana submits a resolution
calling for the facts.
So far the Senators still recognize vaguely that they are
discussing a rumor. Being lawyers
they still remember some of the forms of evidence. But as red-
blooded men they already
experience all the indignation which is appropriate to the fact
that American marines have
been ordered into war by a foreign government and without the
consent of Congress.
Emotionally they want to believe it, because they are
Republicans fighting the League of
Nations. This arouses the Democratic leader, Mr. Hitchcock of
Nebraska. He defends the
Supreme Council: it was acting under the war powers. Peace has
not yet been concluded
because the Republicans are delaying it. Therefore the action
was necessary and legal. Both
sides now assume that the report is true, and the conclusions
they draw are the conclusions
of their partisanship. Yet this extraordinary assumption is in a
debate over a resolution to
investigate the truth of the assumption. It reveals how difficult
it is, even for trained
lawyers, to suspend response until the returns are in. The
response is instantaneous. The
fiction is taken for truth because the fiction is badly needed.
A few days later an official report showed that the marines were
not landed by order of the
British Government or of the Supreme Council. They had not
been fighting the Italians.
They had been landed at the request of the Italian Government
to protect Italians, and the

129. American commander had been officially thanked by the Italian
authorities. The marines
were not at war with Italy. They had acted according to an
established international practice
which had nothing to do with the League of Nations.
The scene of action was the Adriatic. The picture of that scene
in the Senators' heads at
Washington was furnished, in this case probably with intent to
deceive, by a man who cared
nothing about the Adriatic, but much about defeating the
League. To this picture the Senate
responded by a strengthening of its partisan differences over the
League.
5
Whether in this particular case the Senate was above or below
its normal standard, it is not
necessary to decide. Nor whether the Senate compares favorably
with the House, or with
other parliaments. At the moment, I should like to think only
about the world-wide
spectacle of men acting upon their environment, moved by
stimuli from their pseudo-
environments. For when full allowance has been made for
deliberate fraud, political science
has still to account for such facts as two nations attacking one
another, each convinced that
it is acting in self-defense, or two classes at war each certain
that it speaks for the common
interest. They live, we are likely to say, in different worlds.
More accurately, they live in the
same world, but they think and feel in different ones.

130. It is to these special worlds, it is to these private or group, or
class, or provincial, or
occupational, or national, or sectarian artifacts, that the
political adjustment of mankind in
the Great Society takes place. Their variety and complication
are impossible to describe. Yet
these fictions determine a very great part of men's political
behavior. We must think of
perhaps fifty sovereign parliaments consisting of at least a
hundred legislative bodies. With
them belong at least fifty hierarchies of provincial and
municipal assemblies, which with
their executive, administrative and legislative organs, constitute
formal authority on earth.
But that does not begin to reveal the complexity of political
life. For in each of these
innumerable centers of authority there are parties, and these
parties are themselves
hierarchies with their roots in classes, sections, cliques and
clans; and within these are the
individual politicians, each the personal center of a web of
connection and memory and fear
and hope.
Somehow or other, for reasons often necessarily obscure, as the
result of domination or
compromise or a logroll, there emerge from these political
bodies commands, which set
armies in motion or make peace, conscript life, tax, exile,
imprison, protect property or
confiscate it, encourage one kind of enterprise and discourage
another, facilitate
immigration or obstruct it, improve communication or censor it,
establish schools, build
navies, proclaim "policies," and "destiny," raise economic

131. barriers, make property or
unmake it, bring one people under the rule of another, or favor
one class as against another.
For each of these decisions some view of the facts is taken to be
conclusive, some view of
the circumstances is accepted as the basis of inference and as
the stimulus of feeling. What
view of the facts, and why that one?
And yet even this does not begin to exhaust the real complexity.
The formal political
structure exists in a social environment, where there are
innumerable large and small
corporations and institutions, voluntary and semi-voluntary
associations, national,
provincial, urban and neighborhood groupings, which often as
not make the decision that
the political body registers. On what are these decisions based?
"Modern society," says Mr. Chesterton, "is intrinsically
insecure because it is based on the
notion that all men will do the same thing for different
reasons.... And as within the head of
any convict may be the hell of a quite solitary crime, so in the
house or under the hat of any
suburban clerk may be the limbo of a quite separate philosophy.
The first man may be a
complete Materialist and feel his own body as a horrible
machine manufacturing his own
mind. He may listen to his thoughts as to the dull ticking of a
clock. The man next door may
be a Christian Scientist and regard his own body as somehow
rather less substantial than his

132. own shadow. He may come almost to regard his own arms and
legs as delusions like
moving serpents in the dream of delirium tremens. The third
man in the street may not be a
Christian Scientist but, on the contrary, a Christian. He may
live in a fairy tale as his
neighbors would say; a secret but solid fairy tale full of the
faces and presences of unearthly
friends. The fourth man may be a theosophist, and only too
probably a vegetarian; and I do
not see why I should not gratify myself with the fancy that the
fifth man is a devil
worshiper.... Now whether or not this sort of variety is valuable,
this sort of unity is shaky.
To expect that all men for all time will go on thinking different
things, and yet doing the
same things, is a doubtful speculation. It is not founding society
on a communion, or even
on a convention, but rather on a coincidence. Four men may
meet under the same lamp post;
one to paint it pea green as part of a great municipal reform;
one to read his breviary in the
light of it; one to embrace it with accidental ardour in a fit of
alcoholic enthusiasm; and the
last merely because the pea green post is a conspicuous point of
rendezvous with his young
lady. But to expect this to happen night after night is unwise...."
(9)
For the four men at the lamp post substitute the governments,
the parties, the corporations,
the societies, the social sets, the trades and professions,
universities, sects, and nationalities
of the world. Think of the legislator voting a statute that will
affect distant peoples, a
statesman coming to a decision. Think of the Peace Conference

133. reconstituting the frontiers
of Europe, an ambassador in a foreign country trying to discern
the intentions of his own
government and of the foreign government, a promoter working
a concession in a backward
country, an editor demanding a war, a clergyman calling on the
police to regulate
amusement, a club lounging-room making up its mind about a
strike, a sewing circle
preparing to regulate the schools, nine judges deciding whether
a legislature in Oregon may
fix the working hours of women, a cabinet meeting to decide on
the recognition of a
government, a party convention choosing a candidate and
writing a platform, twenty-seven
million voters casting their ballots, an Irishman in Cork
thinking about an Irishman in
Belfast, a Third International planning to reconstruct the whole
of human society, a board of
directors confronted with a set of their employees' demands, a
boy choosing a career, a
merchant estimating supply and demand for the coming season,
a speculator predicting the
course of the market, a banker deciding whether to put credit
behind a new enterprise, the
advertiser, the reader of advertisments.... Think of the different
sorts of Americans thinking
about their notions of "The British Empire" or "France" or
"Russia" or "Mexico." It is not so
different from Mr. Chesterton's four men at the pea green lamp
post.
6
And so before we involve ourselves in the jungle of obscurities
about the innate differences

134. of men, we shall do well to fix our attention upon the
extraordinary differences in what men
know of the world. (10) I do not doubt that there are important
biological differences. Since
man is an animal it would be strange if there were not. But as
rational beings it is worse
than shallow to generalize at all about comparative behavior
until there is a measurable
similarity between the environments to which behavior is a
response.
The pragmatic value of this idea is that it introduces a much
needed refinement into the
ancient controversy about nature and nurture, innate quality and
environment. For the
pseudo-environment is a hybrid compounded of "human nature"
and "conditions." To my
mind it shows the uselessness of pontificating about what man
is and always will be from
what we observe man to be doing, or about what are the
necessary conditions of society. For
we do not know how men would behave in response to the facts
of the Great Society. All
that we really know is how they behave in response to what can
fairly be called a most
inadequate picture of the Great Society. No conclusion about
man or the Great Society can
honestly be made on evidence like that.
This, then, will be the clue to our inquiry. We shall assume that
what each man does is based
not on direct and certain knowledge, but on pictures made by
himself or given to him. If his

135. atlas tells him that the world is flat he will not sail near what he
believes to be the edge of
our planet for fear of falling off. If his maps include a fountain
of eternal youth, a Ponce de
Leon will go in quest of it. If someone digs up yellow dirt that
looks like gold, he will for a
time act exactly as if he had found gold. The way in which the
world is imagined
determines at any particular moment what men will do. It does
not determine what they will
achieve. It determines their effort, their feelings, their hopes,
not their accomplishments and
results. The very men who most loudly proclaim their
"materialism" and their contempt for
"ideologues," the Marxian communists, place their entire hope
on what? On the formation
by propaganda of a class-conscious group. But what is
propaganda, if not the effort to alter
the picture to which men respond, to substitute one social
pattern for another? What is class
consciousness but a way of realizing the world? National
consciousness but another way?
And Professor Giddings' consciousness of kind, but a process of
believing that we recognize
among the multitude certain ones marked as our kind?
Try to explain social life as the pursuit of pleasure and the
avoidance of pain. You will soon
be saying that the hedonist begs the question, for even
supposing that man does pursue these
ends, the crucial problem of why he thinks one course rather
than another likely to produce
pleasure, is untouched. Does the guidance of man's conscience
explain? How then does he
happen to have the particular conscience which he has? The
theory of economic self-

136. interest? But how do men come to conceive their interest in one
way rather than another?
The desire for security, or prestige, or domination, or what is
vaguely called self-
realization? How do men conceive their security, what do they
consider prestige, how do
they figure out the means of domination, or what is the notion
of self which they wish to
realize? Pleasure, pain, conscience, acquisition, protection,
enhancement, mastery, are
undoubtedly names for some of the ways people act. There may
be instinctive dispositions
which work toward such ends. But no statement of the end, or
any description of the
tendencies to seek it, can explain the behavior which results.
The very fact that men theorize
at all is proof that their pseudo-environments, their interior
representations of the world, are
a determining element in thought, feeling, and action. For if the
connection between reality
and human response were direct and immediate, rather than
indirect and inferred, indecision
and failure would be unknown, and (if each of us fitted as
snugly into the world as the child
in the womb), Mr. Bernard Shaw would not have been able to
say that except for the first
nine months of its existence no human being manages its affairs
as well as a plant.
The chief difficulty in adapting the psychoanalytic scheme to
political thought arises in this
connection. The Freudians are concerned with the
maladjustment of distinct individuals to
other individuals and to concrete circumstances. They have

137. assumed that if internal
derangements could be straightened out, there would be little or
no confusion about what is
the obviously normal relationship. But public opinion deals with
indirect, unseen, and
puzzling facts, and there is nothing obvious about them. The
situations to which public
opinions refer are known only as opinions. The psychoanalyst,
on the other hand, almost
always assumes that the environment is knowable, and if not
knowable then at least
bearable, to any unclouded intelligence. This assumption of his
is the problem of public
opinion. Instead of taking for granted an environment that is
readily known, the social
analyst is most concerned in studying how the larger political
environment is conceived,
and how it can be conceived more successfully. The
psychoanalyst examines the adjustment
to an X, called by him the environment; the social analyst
examines the X, called by him the
pseudo-environment.
He is, of course, permanently and constantly in debt to the new
psychology, not only
because when rightly applied it so greatly helps people to stand
on their own feet, come
what may, but because the study of dreams, fantasy and
rationalization has thrown light on
how the pseudo-environment is put together. But he cannot
assume as his criterion either
what is called a "normal biological career" (11) within the
existing social order, or a career
"freed from religious suppression and dogmatic conventions"
outside.(12) What for a
sociologist is a normal social career? Or one freed from

138. suppressions and conventions?
Conservative critics do, to be sure, assume the first, and
romantic ones the second. But in
assuming them they are taking the whole world for granted.
They are saying in effect either
that society is the sort of thing which corresponds to their idea
of what is normal, or the sort
of thing which corresponds to their idea of what is free. Both
ideas are merely public
opinions, and while the psychoanalyst as physician may perhaps
assume them, the
sociologist may not take the products of existing public opinion
as criteria by which to study
public opinion.
7
The world that we have to deal with politically is out of reach,
out of sight, out of mind. It
has to be explored, reported, and imagined. Man is no
Aristotelian god contemplating all
existence at one glance. He is the creature of an evolution who
can just about span a
sufficient portion of reality to manage his survival, and snatch
what on the scale of time are
but a few moments of insight and happiness. Yet this same
creature has invented ways of
seeing what no naked eye could see, of hearing what no ear
could hear, of weighing
immense masses and infinitesimal ones, of counting and
separating more items than he can
individually remember. He is learning to see with his mind vast
portions of the world that he
could never see, touch, smell, hear, or remember. Gradually he
makes for himself a
trustworthy picture inside his head of the world beyond his

139. reach.
Those features of the world outside which have to do with the
behavior of other human
beings, in so far as that behavior crosses ours, is dependent
upon us, or is interesting to us,
we call roughly public affairs. The pictures inside the heads of
these human beings, the
pictures of themselves, of others, of their needs, purposes, and
relationship, are their public
opinions. Those pictures which are acted upon by groups of
people, or by individuals acting
in the name of groups, are Public Opinion with capital letters.
And so in the chapters which
follow we shall inquire first into some of the reasons why the
picture inside so often
misleads men in their dealings with the world outside. Under
this heading we shall consider
first the chief factors which limit their access to the facts. They
are the artificial censorships,
the limitations of social contact, the comparatively meager time
available in each day for
paying attention to public affairs, the distortion arising because
events have to be
compressed into very short messages, the difficulty of making a
small vocabulary express a
complicated world, and finally the fear of facing those facts
which would seem to threaten
the established routine of men's lives.
The analysis then turns from these more or less external
limitations to the question of how
this trickle of messages from the outside is affected by the

140. stored up images, the
preconceptions, and prejudices which interpret, fill them out,
and in their turn powerfully
direct the play of our attention, and our vision itself. From this
it proceeds to examine how
in the individual person the limited messages from outside,
formed into a pattern of
stereotypes, are identified with his own interests as he feels and
conceives them. In the
succeeding sections it examines how opinions are crystallized
into what is called Public
Opinion, how a National Will, a Group Mind, a Social Purpose,
or whatever you choose to
call it, is formed.
The first five parts constitute the descriptive section of the
book. There follows an analysis
of the traditional democratic theory of public opinion. The
substance of the argument is that
democracy in its original form never seriously faced the
problem which arises because the
pictures inside people's heads do not automatically correspond
with the world outside. And
then, because the democratic theory is under criticism by
socialist thinkers, there follows an
examination of the most advanced and coherent of these
criticisms, as made by the English
Guild Socialists. My purpose here is to find out whether these
reformers take into account
the main difficulties of public opinion. My conclusion is that
they ignore the difficulties, as
completely as did the original democrats, because they, too,
assume, and in a much more
complicated civilization, that somehow mysteriously there
exists in the hearts of men a
knowledge of the world beyond their reach.

141. I argue that representative government, either in what is
ordinarily called politics, or in
industry, cannot be worked successfully, no matter what the
basis of election, unless there is
an independent, expert organization for making the unseen facts
intelligible to those who
have to make the decisions. I attempt, therefore, to argue that
the serious acceptance of the
principle that personal representation must be supplemented by
representation of the unseen
facts would alone permit a satisfactory decentralization, and
allow us to escape from the
intolerable and unworkable fiction that each of us must acquire
a competent opinion about
all public affairs. It is argued that the problem of the press is
confused because the critics
and the apologists expect the press to realize this fiction, expect
it to make up for all that
was not foreseen in the theory of democracy, and that the
readers expect this miracle to be
performed at no cost or trouble to themselves. The newspapers
are regarded by democrats as
a panacea for their own defects, whereas analysis of the nature
of news and of the economic
basis of journalism seems to show that the newspapers
necessarily and inevitably reflect,
and therefore, in greater or lesser measure, intensify, the
defective organization of public
opinion. My conclusion is that public opinions must be
organized for the press if they are to
be sound, not by the press as is the case today. This
organization I conceive to be in the first
instance the task of a political science that has won its proper
place as formulator, in
advance of real decision, instead of apologist, critic, or reporter

142. after the decision has been
made. I try to indicate that the perplexities of government and
industry are conspiring to
give political science this enormous opportunity to enrich itself
and to serve the public.
And, of course, I hope that these pages will help a few people to
realize that opportunity
more vividly, and therefore to pursue it more consciously.
1. Hexaemeron, i. cap 6, quoted in The Mediæval Mind, by
Henry Osborn Taylor, Vol. i, p.
73.
2. Lecky, Rationalism in Europe, Vol. I, pp. 276-8
3. Id.
4. Lytton Strachey, Queen Victoria, p. 72
5. Jean de Pierrefeu, G. Q. G. Trois ans au Grand Quartier
General, pp 94-95.
6. See Sinclair Lewis, Main Street.
7. Op. cit., p. 99
8. James, Principles of Psychology, Vol. II, p. 638
9. G.K. Chesterton, "The Mad Hatter and the Sane
Householder," Vanity Fair, January,
1921, p. 54
10. Cf. Wallas, Our Social Heritage, pp. 77 et seq.
11. Edward J. Kempf, Psychopathology, p. 116.
12. Id., p. 151.
Table of Contents | Chapter II
http://xroads.virginia.edu/~hyper/lippman/contents.html
http://xroads.virginia.edu/~hyper/lippman/ch02.html

143. 03.01.94 12:00 PM
THE ECONOMY OF IDEAS
A FRAMEWORK FOR patents and copyrights in the Digital
Age. (Everything you
know about intellectual property is wrong.)
"If nature has made any one thing less susceptible than all
others of exclusive
property, it is the action of the thinking power called an idea,
which an
individual may exclusively possess as long as he keeps it to
himself; but the
moment it is divulged, it forces itself into the possession of
everyone, and the
receiver cannot dispossess himself of it. Its peculiar character,
too, is that no
one possesses the less, because every other possesses the whole
of it. He who
receives an idea from me, receives instruction himself without
lessening
mine; as he who lights his taper at mine, receives light without
darkening me.
That ideas should freely spread from one to another over the
globe, for the
moral and mutual instruction of man, and improvement of his
condition,
seems to have been peculiarly and benevolently designed by
nature, when
she made them, like fire, expansible over all space, without
lessening their
density at any point, and like the air in which we breathe, move,
and have our
physical being, incapable of confinement or exclusive
appropriation.
Inventions then cannot, in nature, be a subject of property." -

144. Thomas
Jefferson
Throughout the time I've been groping around cyberspace, an
immense,
unsolved conundrum has remained at the root of nearly every
legal, ethical,
governmental, and social vexation to be found in the Virtual
World. I refer to
the problem of digitized property. The enigma is this: If our
property can be
infinitely reproduced and instantaneously distributed all over
the planet
without cost, without our knowledge, without its even leaving
our
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145. 0Economy%20of%20Ideas
mailto:?subject=WIRED%3A%20The%20Economy%20of%20Id
eas&body=Check%20out%20this%20great%20article%20I%20r
ead%20on%20WIRED%3A%20%22The%20Economy%20of%20
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%2F1994%2F03%2Feconomy-
ideas%2F?mbid=email_onsiteshare
possession, how can we protect it? How are we going to get
paid for the work
we do with our minds? And, if we can't get paid, what will
assure the
continued creation and distribution of such work?
Since we don't have a solution to what is a profoundly new kind
of challenge,
and are apparently unable to delay the galloping digitization of
everything
not obstinately physical, we are sailing into the future on a
sinking ship.
This vessel, the accumulated canon of copyright and patent law,
was
developed to convey forms and methods of expression entirely
different from
the vaporous cargo it is now being asked to carry. It is leaking
as much from
within as from without.
Legal efforts to keep the old boat floating are taking three
forms: a frenzy of
deck chair rearrangement, stern warnings to the passengers that
if she goes
down, they will face harsh criminal penalties, and serene,
glassy-eyed denial.

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popular_366aed17-fc28-44df-b382-1ed0889339bb_cral-top1-2
Intellectual property law cannot be patched, retrofitted, or
expanded to
contain digitized expression any more than real estate law might
be revised
to cover the allocation of broadcasting spectrum (which, in fact,
rather
resembles what is being attempted here). We will need to
develop an entirely
new set of methods as befits this entirely new set of
circumstances.
Most of the people who actually create soft property - the
programmers,
hackers, and Net surfers - already know this. Unfortunately,
neither the
companies they work for nor the lawyers these companies hire
have enough
direct experience with nonmaterial goods to understand why
they are so
problematic. They are proceeding as though the old laws can

152. somehow be
made to work, either by grotesque expansion or by force. They
are wrong.
The source of this conundrum is as simple as its solution is
complex. Digital
technology is detaching information from the physical plane,
where property
law of all sorts has always found definition.
Throughout the history of copyrights and patents, the
proprietary assertions
of thinkers have been focused not on their ideas but on the
expression of
those ideas. The ideas themselves, as well as facts about the
phenomena of
the world, were considered to be the collective property of
humanity. One
could claim franchise, in the case of copyright, on the precise
turn of phrase
used to convey a particular idea or the order in which facts were
presented.
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153. https://video.wired.com/watch/see-the-visual-effects-that-
brought-black-panther-to-life#intcid=recommendations_default-
popular_366aed17-fc28-44df-b382-1ed0889339bb_cral-top1-2
The point at which this franchise was imposed was that moment
when the
"word became flesh" by departing the mind of its originator and
entering
some physical object, whether book or widget. The subsequent
arrival of
other commercial media besides books didn't alter the legal
importance of
this moment. Law protected expression and, with few (and
recent)
exceptions, to express was to make physical.
Protecting physical expression had the force of convenience on
its side.
Copyright worked well because, Gutenberg notwithstanding, it
was hard to
make a book. Furthermore, books froze their contents into a
condition which
was as challenging to alter as it was to reproduce.
Counterfeiting and
distributing counterfeit volumes were obvious and visible
activities - it was
easy enough to catch somebody in the act of doing. Finally,
unlike unbounded
words or images, books had material surfaces to which one
could attach
copyright notices, publisher's marques, and price tags.
Mental-to-physical conversion was even more central to patent.
A patent,

154. until recently, was either a description of the form into which
materials were
to be rendered in the service of some purpose, or a description
of the process
by which rendition occurred. In either case, the conceptual heart
of patent
was the material result. If no purposeful object could be
rendered because of
some material limitation, the patent was rejected. Neither a
Klein bottle nor a
shovel made of silk could be patented. It had to be a thing, and
the thing had
to work.
Thus, the rights of invention and authorship adhered to
activities in the
physical world. One didn't get paid for ideas, but for the ability
to deliver
them into reality. For all practical purposes, the value was in
the conveyance
and not in the thought conveyed.
In other words, the bottle was protected, not the wine.
Now, as information enters cyberspace, the native home of
Mind, these
bottles are vanishing. With the advent of digitization, it is now
possible to
replace all previous information storage forms with one
metabottle: complex
and highly liquid patterns of ones and zeros.
Even the physical/digital bottles to which we've become

155. accustomed - floppy
disks, CD-ROMs, and other discrete, shrink-wrappable bit-
packages - will
disappear as all computers jack-in to the global Net. While the
Internet may
never include every CPU on the planet, it is more than doubling
every year
and can be expected to become the principal medium of
information
conveyance, and perhaps eventually, the only one.
Once that has happened, all the goods of the Information Age -
all of the
expressions once contained in books or film strips or
newsletters - will exist
either as pure thought or something very much like thought:
voltage
conditions darting around the Net at the speed of light, in
conditions that one
might behold in effect, as glowing pixels or transmitted sounds,
but never
touch or claim to "own" in the old sense of the word.
Some might argue that information will still require some
physical
manifestation, such as its magnetic existence on the titanic hard
disks of
distant servers, but these are bottles which have no
macroscopically discrete
or personally meaningful form.
Some will also argue that we have been dealing with unbottled
expression
since the advent of radio, and they would be right. But for most
of the history
of broadcast, there was no convenient way to capture soft goods

156. from the
electromagnetic ether and reproduce them with quality available
in
commercial packages. Only recently has this changed, and little
has been
done legally or technically to address the change.
Generally, the issue of consumer payment for broadcast
products was
irrelevant. The consumers themselves were the product.
Broadcast media
were supported either by the sale of the attention of their
audience to
advertisers, by government assessing payment through taxes, or
by the
whining mendicancy of annual donor drives.
All of the broadcast-support models are flawed. Support either
by
advertisers or government has almost invariably tainted the
purity of the
goods delivered. Besides, direct marketing is gradually killing
the advertiser-
support model anyway.
Broadcast media gave us another payment method for a virtual
product: the
royalties that broadcasters pay songwriters through such
organizations as
ASCAP and BMI. But, as a member of ASCAP, I can assure you
this is not a
model that we should emulate. The monitoring methods are
wildly

157. approximate. There is no parallel system of accounting in the
revenue
stream. It doesn't really work. Honest.
In any case, without our old methods, based on physically
defining the
expression of ideas, and in the absence of successful new
models for
nonphysical transaction, we simply don't know how to assure
reliable
payment for mental works. To make matters worse, this comes
at a time
when the human mind is replacing sunlight and mineral deposits
as the
principal source of new wealth.
Furthermore, the increasing difficulty of enforcing existing
copyright and
patent laws is already placing in peril the ultimate source of
intellectual
property - the free exchange of ideas.
That is, when the primary articles of commerce in a society look
so much like
speech as to be indistinguishable from it, and when the
traditional methods
of protecting their ownership have become ineffectual,
attempting to fix the
problem with broader and more vigorous enforcement will
inevitably
threaten freedom of speech. The greatest constraint on your
future liberties
may come not from government but from corporate legal
departments
laboring to protect by force what can no longer be protected by
practical

158. efficiency or general social consent.
Furthermore, when Jefferson and his fellow creatures of the
Enlightenment
designed the system that became American copyright law, their
primary
objective was assuring the widespread distribution of thought,
not profit.
Profit was the fuel that would carry ideas into the libraries and
minds of their
new republic. Libraries would purchase books, thus rewarding
the authors
for their work in assembling ideas; these ideas, otherwise
"incapable of
confinement," would then become freely available to the public.
But what is
the role of libraries in the absence of books? How does society
now pay for
the distribution of ideas if not by charging for the ideas
themselves?
Additionally complicating the matter is the fact that along with
the
disappearance of the physical bottles in which intellectual
property
protection has resided, digital technology is also erasing the
legal
jurisdictions of the physical world and replacing them with the
unbounded
and perhaps permanently lawless waves of cyberspace.
In cyberspace, no national or local boundaries contain the scene
of a crime

159. and determine the method of its prosecution; worse, no clear
cultural
agreements define what a crime might be. Unresolved and basic
differences
between Western and Asian cultural assumptions about
intellectual property
can only be exacerbated when many transactions are taking
place in both
hemispheres and yet, somehow, in neither.
Even in the most local of digital conditions, jurisdiction and
responsibility
are hard to assess. A group of music publishers filed suit
against CompuServe
this fall because it allowed its users to upload musical
compositions into
areas where other users might access them. But since
CompuServe cannot
practically exercise much control over the flood of bits that
passes between
its subscribers, it probably shouldn't be held responsible for
unlawfully
"publishing" these works.
Notions of property, value, ownership, and the nature of wealth
itself are
changing more fundamentally than at any time since the
Sumerians first
poked cuneiform into wet clay and called it stored grain. Only a
very few
people are aware of the enormity of this shift, and fewer of
them are lawyers
or public officials.
Those who do see these changes must prepare responses for the
legal and

160. social confusion that will erupt as efforts to protect new forms
of property
with old methods become more obviously futile, and, as a
consequence, more
adamant.
From Swords to Writs to Bits
Humanity now seems bent on creating a world economy
primarily based on
goods that take no material form. In doing so, we may be
eliminating any
predictable connection between creators and a fair reward for
the utility or
pleasure others may find in their works.
Without that connection, and without a fundamental change in
consciousness to accommodate its loss, we are building our
future on furor,
litigation, and institutionalized evasion of payment except in
response to raw
force. We may return to the Bad Old Days of property.
Throughout the darker parts of human history, the possession
and
distribution of property was a largely military matter.
"Ownership" was
assured those with the nastiest tools, whether fists or armies,
and the most
resolute will to use them. Property was the divine right of
thugs.
By the turn of the First Millennium AD, the emergence of

161. merchant classes
and landed gentry forced the development of ethical
understandings for the
resolution of property disputes. In the Middle Ages, enlightened
rulers like
England's Henry II began to codify this unwritten "common
law" into
recorded canons. These laws were local, which didn't matter
much as they
were primarily directed at real estate, a form of property that is
local by
definition. And, as the name implied, was very real.
This continued to be the case as long as the origin of wealth was
agricultural,
but with that dawning of the Industrial Revolution, humanity
began to focus
as much on means as ends. Tools acquired a new social value
and, thanks to
their development, it became possible to duplicate and
distribute them in
quantity.
To encourage their invention, copyright and patent law were
developed in
most Western countries. These laws were devoted to the delicate
task of
getting mental creations into the world where they could be
used - and could
enter the minds of others - while assuring their inventors
compensation for
the value of their use. And, as previously stated, the systems of
both law and

162. practice which grew up around that task were based on physical
expression.
Since it is now possible to convey ideas from one mind to
another without
ever making them physical, we are now claiming to own ideas
themselves and
not merely their expression. And since it is likewise now
possible to create
useful tools that never take physical form, we have taken to
patenting
abstractions, sequences of virtual events, and mathematical
formulae - the
most unreal estate imaginable.
In certain areas, this leaves rights of ownership in such an
ambiguous
condition that property again adheres to those who can muster
the largest
armies. The only difference is that this time the armies consist
of lawyers.
Threatening their opponents with the endless purgatory of
litigation, over
which some might prefer death itself, they assert claim to any
thought which
might have entered another cranium within the collective body
of the
corporations they serve. They act as though these ideas
appeared in splendid
detachment from all previous human thought. And they pretend
that
thinking about a product is somehow as good as manufacturing,
distributing,
and selling it.

163. What was previously considered a common human resource,
distributed
among the minds and libraries of the world, as well as the
phenomena of
nature herself, is now being fenced and deeded. It is as though a
new class of
enterprise had arisen that claimed to own the air.
What is to be done? While there is a certain grim fun to be had
in it, dancing
on the grave of copyright and patent will solve little, especially
when so few
are willing to admit that the occupant of this grave is even
deceased, and so
many are trying to uphold by force what can no longer be
upheld by popular
consent.
The legalists, desperate over their slipping grip, are vigorously
trying to
extend their reach. Indeed, the United States and other
proponents of GATT
are making adherence to our moribund systems of intellectual
property
protection a condition of membership in the marketplace of
nations. For
example, China will be denied Most Favored Nation trading
status unless
they agree to uphold a set of culturally alien principles that are
no longer
even sensibly applicable in their country of origin.
In a more perfect world, we'd be wise to declare a moratorium
on litigation,

164. legislation, and international treaties in this area until we had a
clearer sense
of the terms and conditions of enterprise in cyberspace. Ideally,
laws ratify
already developed social consensus. They are less the Social
Contract itself
than a series of memoranda expressing a collective intent that
has emerged
out of many millions of human interactions.
Humans have not inhabited cyberspace long enough or in
sufficient diversity
to have developed a Social Contract which conforms to the
strange new
conditions of that world. Laws developed prior to consensus
usually favor the
already established few who can get them passed and not
society as a whole.
To the extent that law and established social practice exists in
this area, they
are already in dangerous disagreement. The laws regarding
unlicensed
reproduction of commercial software are clear and stern...and
rarely
observed. Software piracy laws are so practically unenforceable
and breaking
them has become so socially acceptable that only a thin
minority appears
compelled, either by fear or conscience, to obey them. When I
give speeches
on this subject, I always ask how many people in the audience
can honestly
claim to have no unauthorized software on their hard disks. I've
never seen
more than 10 percent of the hands go up.

165. Whenever there is such profound divergence between law and
social
practice, it is not society that adapts. Against the swift tide of
custom, the
software publishers' current practice of hanging a few visible
scapegoats is
so obviously capricious as to only further diminish respect for
the law.
Part of the widespread disregard for commercial software
copyrights stems
from a legislative failure to understand the conditions into
which it was
inserted. To assume that systems of law based in the physical
world will
serve in an environment as fundamentally different as
cyberspace is a folly
for which everyone doing business in the future will pay.
As I will soon discuss in detail, unbounded intellectual property
is very
different from physical property and can no longer be protected
as though
these differences did not exist. For example, if we continue to
assume that
value is based on scarcity, as it is with regard to physical
objects, we will
create laws that are precisely contrary to the nature of
information, which
may, in many cases, increase in value with distribution.
The large, legally risk-averse institutions most likely to play by
the old rules

166. will suffer for their compliance. As more lawyers, guns, and
money are
invested in either protecting their rights or subverting those of
their
opponents, their ability to produce new technology will simply
grind to a halt
as every move they make drives them deeper into a tar pit of
courtroom
warfare.
Faith in law will not be an effective strategy for high-tech
companies. Law
adapts by continuous increments and at a pace second only to
geology.
Technology advances in lunging jerks, like the punctuation of
biological
evolution grotesquely accelerated. Real-world conditions will
continue to
change at a blinding pace, and the law will lag further behind,
more
profoundly confused. This mismatch may prove impossible to
overcome.
Promising economies based on purely digital products will
either be born in a
state of paralysis, as appears to be the case with multimedia, or
continue in a
brave and willful refusal by their owners to play the ownership
game at all.
In the United States one can already see a parallel economy
developing,
mostly among small, fast moving enterprises who protect their
ideas by
getting into the marketplace quicker then their larger
competitors who base

167. their protection on fear and litigation.
Perhaps those who are part of the problem will simply
quarantine themselves
in court, while those who are part of the solution will create a
new society
based, at first, on piracy and freebooting. It may well be that
when the
current system of intellectual property law has collapsed, as
seems
inevitable, that no new legal structure will arise in its place.
But something will happen. After all, people do business. When
a currency
becomes meaningless, business is done in barter. When societies
develop
outside the law, they develop their own unwritten codes,
practices, and
ethical systems. While technology may undo law, technology
offers methods
for restoring creative rights.
A Taxonomy of Information
It seems to me that the most productive thing to do now is to
look into the
true nature of what we're trying to protect. How much do we
really know
about information and its natural behaviors?
What are the essential characteristics of unbounded creation?
How does it
differ from previous forms of property? How many of our
assumptions about

168. it have actually been about its containers rather than their
mysterious
contents? What are its different species and how does each of
them lend
itself to control? What technologies will be useful in creating
new virtual
bottles to replace the old physical ones?
Of course, information is, by nature, intangible and hard to
define. Like other
such deep phenomena as light or matter, it is a natural host to
paradox. It is
most helpful to understand light as being both a particle and a
wave, an
understanding of information may emerge in the abstract
congruence of its
several different properties which might be described by the
following three
statements:
Information is an activity.
Information is a life form.
Information is a relationship.
In the following section, I will examine each of these.
I. INFORMATION IS AN ACTIVITY
Information Is a Verb, Not a Noun.
Freed of its containers, information is obviously not a thing. In
fact, it is
something that happens in the field of interaction between
minds or objects

169. or other pieces of information.
Gregory Bateson, expanding on the information theory of
Claude Shannon,
said, "Information is a difference which makes a difference."
Thus,
information only really exists in the Delta. The making of that
difference is an
activity within a relationship. Information is an action which
occupies time
rather than a state of being which occupies physical space, as is
the case with
hard goods. It is the pitch, not the baseball, the dance, not the
dancer.
Information Is Experienced, Not Possessed.
Even when it has been encapsulated in some static form like a
book or a hard
disk, information is still something that happens to you as you
mentally
decompress it from its storage code. But, whether it's running at
gigabits per
second or words per minute, the actual decoding is a process
that must be
performed by and upon a mind, a process that must take place in
time.
There was a cartoon in the Bulletin of Atomic Scientists a few
years ago that
illustrated this point beautifully. In the drawing, a holdup man
trains his gun
on the sort of bespectacled fellow you'd figure might have a lot
of
information stored in his head. "Quick," orders the bandit, "give
me all your

170. ideas."
Information Has to Move.
Sharks are said to die of suffocation if they stop swimming, and
the same is
nearly true of information. Information that isn't moving ceases
to exist as
anything but potential...at least until it is allowed to move
again. For this
reason, the practice of information hoarding, common in
bureaucracies, is an
especially wrong-headed artifact of physically based value
systems.
Information Is Conveyed by Propagation, Not Distribution.
The way in which information spreads is also very different
from the
distribution of physical goods. It moves more like something
from nature
than from a factory. It can concatenate like falling dominos or
grow in the
usual fractal lattice, like frost spreading on a window, but it
cannot be
shipped around like widgets, except to the extent that it can be
contained in
them. It doesn't simply move on; it leaves a trail everywhere it's
been.
The central economic distinction between information and
physical property
is that information can be transferred without leaving the

171. possession of the
original owner. If I sell you my horse, I can't ride him after
that. If I sell you
what I know, we both know it.
II. INFORMATION IS A LIFE FORM
Information Wants to Be Free.
Stewart Brand is generally credited with this elegant statement
of the
obvious, which recognizes both the natural desire of secrets to
be told and
the fact that they might be capable of possessing something like
a "desire" in
the first place.
English biologist and philosopher Richard Dawkins proposed
the idea of
"memes," self-replicating patterns of information that propagate
themselves
across the ecologies of mind, a pattern of reproduction much
like that of life
forms.
I believe they are life forms in every respect but their freedom
from the
carbon atom. They self-reproduce, they interact with their
surroundings and
adapt to them, they mutate, they persist. They evolve to fill the
empty niches
of their local environments, which are, in this case the
surrounding belief
systems and cultures of their hosts, namely, us.
Indeed, sociobiologists like Dawkins make a plausible case that

172. carbon-based
life forms are information as well, that, as the chicken is an
egg's way of
making another egg, the entire biological spectacle is just the
DNA molecule's
means of copying out more information strings exactly like
itself.
Information Replicates into the Cracks of Possibility.
Like DNA helices, ideas are relentless expansionists, always
seeking new
opportunities for Lebensraum. And, as in carbon-based nature,
the more
robust organisms are extremely adept at finding new places to
live. Thus, just
as the common housefly has insinuated itself into practically
every
ecosystem on the planet, so has the meme of "life after death"
found a niche
in most minds, or psycho-ecologies.
The more universally resonant an idea or image or song , the
more minds it
will enter and remain within. Trying to stop the spread of a
really robust
piece of information is about as easy as keeping killer bees
south of the
border.
Information Wants to Change.
If ideas and other interactive patterns of information are indeed

173. life forms,
they can be expected to evolve constantly into forms which will
be more
perfectly adapted to their surroundings. And, as we see, they are
doing this
all the time.
But for a long time, our static media, whether carvings in stone,
ink on paper,
or dye on celluloid, have strongly resisted the evolutionary
impulse, exalting
as a consequence the author's ability to determine the finished
product. But,
as in an oral tradition, digitized information has no "final cut."
Digital information, unconstrained by packaging, is a
continuing process
more like the metamorphosing tales of prehistory than anything
that will fit
in shrink-wrap. From the Neolithic to Gutenberg (monks aside),
information
was passed on, mouth to ear, changing with every retelling (or
resinging).
The stories which once shaped our sense of the world didn't
have
authoritative versions. They adapted to each culture in which
they found
themselves being told.
Because there was never a moment when the story was frozen in
print, the
so-called "moral" right of storytellers to own the tale was
neither protected

174. nor recognized. The story simply passed through each of them
on its way to
the next, where it would assume a different form. As we return
to continuous
information, we can expect the importance of authorship to
diminish.
Creative people may have to renew their acquaintance with
humility.
But our system of copyright makes no accommodation whatever
for
expressions which don't become fixed at some point nor for
cultural
expressions which lack a specific author or inventor.
Jazz improvisations, stand-up comedy routines, mime
performances,
developing monologues, and unrecorded broadcast
transmissions all lack the
Constitutional requirement of fixation as a "writing." Without
being fixed by
a point of publication the liquid works of the future will all look
more like
these continuously adapting and changing forms and will
therefore exist
beyond the reach of copyright.
Copyright expert Pamela Samuelson tells of having attended a
conference
last year convened around the fact that Western countries may
legally
appropriate the music, designs, and biomedical lore of
aboriginal people
without compensation to their tribes of origin since those tribes
are not an
"author" or "inventors."

175. But soon most information will be generated collaboratively by
the cyber-
tribal hunter-gatherers of cyberspace. Our arrogant legal
dismissal of the
rights of "primitives" will be soon return to haunt us.
Information Is Perishable.
With the exception of the rare classic, most information is like
farm produce.
Its quality degrades rapidly both over time and in distance from
the source of
production. But even here, value is highly subjective and
conditional.
Yesterday's papers are quite valuable to the historian. In fact,
the older they
are, the more valuable they become. On the other hand, a
commodities broker
might consider news of an event that occurred more than an
hour ago to have
lost any relevance.
III. INFORMATION IS A RELATIONSHIP
Meaning Has Value and Is Unique to Each Case.
In most cases, we assign value to information based on its
meaningfulness.
The place where information dwells, the holy moment where
transmission
becomes reception, is a region which has many shifting
characteristics and

176. flavors depending on the relationship of sender and receiver, the
depth of
their interactivity.
Each such relationship is unique. Even in cases where the
sender is a
broadcast medium, and no response is returned, the receiver is
hardly
passive. Receiving information is often as creative an act as
generating it.
The value of what is sent depends entirely on the extent to
which each
individual receiver has the receptors - shared terminology,
attention,
interest, language, paradigm - necessary to render what is
received
meaningful.
Understanding is a critical element increasingly overlooked in
the effort to
turn information into a commodity. Data may be any set of
facts, useful or
not, intelligible or inscrutable, germane or irrelevant.
Computers can crank
out new data all night long without human help, and the results
may be
offered for sale as information. They may or may not actually
be so. Only a
human being can recognize the meaning that separates
information from
data.
In fact, information, in the economic sense of the word, consists
of data
which have been passed through a particular human mind and

177. found
meaningful within that mental context. One fella's information
is all just data
to someone else. If you're an anthropologist, my detailed charts
of Tasaday
kinship patterns might be critical information to you. If you're a
banker from
Hong Kong, they might barely seem to be data.
Familiarity Has More Value than Scarcity.
With physical goods, there is a direct correlation between
scarcity and value.
Gold is more valuable than wheat, even though you can't eat it.
While this is
not always the case, the situation with information is often
precisely the
reverse. Most soft goods increase in value as they become more
common.
Familiarity is an important asset in the world of information. It
may often be
true that the best way to raise demand for your product is to
give it away.
While this has not always worked with shareware, it could be
argued that
there is a connection between the extent to which commercial
software is
pirated and the amount which gets sold. Broadly pirated
software, such as
Lotus 1-2-3 or WordPerfect, becomes a standard and benefits
from Law of
Increasing Returns based on familiarity.

178. In regard to my own soft product, rock 'n' roll songs, there is no
question that
the band I write them for, the Grateful Dead, has increased its
popularity
enormously by giving them away. We have been letting people
tape our
concerts since the early seventies, but instead of reducing the
demand for
our product, we are now the largest concert draw in America, a
fact that is at
least in part attributable to the popularity generated by those
tapes.
True, I don't get any royalties on the millions of copies of my
songs which
have been extracted from concerts, but I see no reason to
complain. The fact
is, no one but the Grateful Dead can perform a Grateful Dead
song, so if you
want the experience and not its thin projection, you have to buy
a ticket from
us. In other words, our intellectual property protection derives
from our
being the only real-time source of it.
Exclusivity Has Value.
The problem with a model that turns the physical scarcity/value
ratio on its
head is that sometimes the value of information is very much
based on its
scarcity. Exclusive possession of certain facts makes them more
useful. If

179. everyone knows about conditions which might drive a stock
price up, the
information is valueless.
But again, the critical factor is usually time. It doesn't matter if
this kind of
information eventually becomes ubiquitous. What matters is
being among
the first who possess it and act on it. While potent secrets
usually don't stay
secret, they may remain so long enough to advance the cause of
their original
holders.
Point of View and Authority Have Value.
In a world of floating realities and contradictory maps, rewards
will accrue to
those commentators whose maps seem to fit their territory
snugly, based on
their ability to yield predictable results for those who use them.
In aesthetic information, whether poetry or rock 'n' roll, people
are willing to
buy the new product of an artist, sight-unseen, based on their
having been
delivered a pleasurable experience by previous work.
Reality is an edit. People are willing to pay for the authority of
those editors
whose point of view seems to fit best. And again, point of view
is an asset
which cannot be stolen or duplicated. No one sees the world as
Esther Dyson
does, and the handsome fee she charges for her newsletter is

180. actually
payment for the privilege of looking at the world through her
unique eyes.
Time Replaces Space.
In the physical world, value depends heavily on possession or
proximity in
space. One owns the material that falls inside certain
dimensional
boundaries. The ability to act directly, exclusively, and as one
wishes upon
what falls inside those boundaries is the principal right of
ownership. The
relationship between value and scarcity is a limitation in space.
In the virtual world, proximity in time is a value determinant.
An
informational product is generally more valuable the closer
purchaser can
place themselves to the moment of its expression, a limitation in
time. Many
kinds of information degrade rapidly with either time or
reproduction.
Relevance fades as the territory they map changes. Noise is
introduced and
bandwidth lost with passage away from the point where the
information is
first produced.
Thus, listening to a Grateful Dead tape is hardly the same
experience as
attending a Grateful Dead concert. The closer one can get to the

181. headwaters
of an informational stream, the better one's chances of finding
an accurate
picture of reality in it. In an era of easy reproduction, the
informational
abstractions of popular experiences will propagate out from
their source
moments to reach anyone who's interested. But it's easy enough
to restrict
the real experience of the desirable event, whether knock-out
punch or guitar
lick, to those willing to pay for being there.
The Protection of Execution
In the hick town I come from, they don't give you much credit
for just having
ideas. You are judged by what you can make of them. As things
continue to
speed up, I think we see that execution is the best protection for
those
designs which become physical products. Or, as Steve Jobs once
put it, "Real
artists ship." The big winner is usually the one who gets to the
market first
(and with enough organizational force to keep the lead).
But, as we become fixated upon information commerce, many of
us seem to
think that originality alone is sufficient to convey value,
deserving, with the
right legal assurances, of a steady wage. In fact, the best way to
protect
intellectual property is to act on it. It's not enough to invent and
patent; one
has to innovate as well. Someone claims to have patented the

182. microprocessor
before Intel. Maybe so. If he'd actually started shipping
microprocessors
before Intel, his claim would seem far less spurious.
Information as Its Own Reward
It is now a commonplace to say that money is information. With
the
exception of Krugerrands, crumpled cab fare, and the contents
of those
suitcases that drug lords are reputed to carry, most of the money
in the
informatized world is in ones and zeros. The global money
supply sloshes
around the Net, as fluid as weather. It is also obvious, that
information has
become as fundamental to the creation of modern wealth as land
and
sunlight once were.
What is less obvious is the extent to which information is
acquiring intrinsic
value, not as a means to acquisition but as the object to be
acquired. I
suppose this has always been less explicitly the case. In politics
and
academia, potency and information have always been closely
related.
However, as we increasingly buy information with money, we
begin to see
that buying information with other information is simple

183. economic exchange
without the necessity of converting the product into and out of
currency.
This is somewhat challenging for those who like clean
accounting, since,
information theory aside, informational exchange rates are too
squishy to
quantify to the decimal point.
Nevertheless, most of what a middle-class American purchases
has little to
do with survival. We buy beauty, prestige, experience,
education, and all the
obscure pleasures of owning. Many of these things can not only
be expressed
in nonmaterial terms, they can be acquired by nonmaterial
means.
And then there are the inexplicable pleasures of information
itself, the joys of
learning, knowing, and teaching; the strange good feeling of
information
coming into and out of oneself. Playing with ideas is a
recreation which
people are willing to pay a lot for, given the market for books
and elective
seminars. We'd likely spend even more money for such
pleasures if we didn't
have so many opportunities to pay for ideas with other ideas.
This explains
much of the collective "volunteer" work which fills the
archives, newsgroups,
and databases of the Internet. Its denizens are not working for
"nothing," as
is widely believed. Rather they are getting paid in something
besides money.

184. It is an economy which consists almost entirely of information.
This may become the dominant form of human trade, and if we
persist in
modeling economics on a strictly monetary basis, we may be
gravely misled.
Getting Paid in Cyberspace
How all the foregoing relates to solutions to the crisis in
intellectual property
is something I've barely started to wrap my mind around. It's
fairly paradigm
warping to look at information through fresh eyes - to see how
very little it is
like pig iron or pork bellies, and to imagine the tottering
travesties of case
law we will stack up if we go on legally treating it as though it
were.
As I've said, I believe these towers of outmoded boilerplate will
be a smoking
heap sometime in the next decade, and we mind miners will
have no choice
but to cast our lot with new systems that work.
I'm not really so gloomy about our prospects as readers of this
jeremiad so
far might conclude.

185. Solution
s will emerge. Nature abhors a vacuum and so
does commerce.
Indeed, one of the aspects of the electronic frontier which I
have always
found most appealing - and the reason Mitch Kapor and I used
that phrase in
naming our foundation - is the degree to which it resembles the
19th-century
American West in its natural preference for social devices that
emerge from
its conditions rather than those that are imposed from the
outside.
Until the West was fully settled and "civilized" in this century,
order was
established according to an unwritten Code of the West, which
had the
fluidity of common law rather than the rigidity of statutes.
Ethics were more
important than rules. Understandings were preferred over laws,

186. which were,
in any event, largely unenforceable.
I believe that law, as we understand it, was developed to protect
the interests
which arose in the two economic "waves" which Alvin Toffler
accurately
identified in The Third Wave. The First Wave was agriculturally
based and
required law to order ownership of the principal source of
production, land.
In the Second Wave, manufacturing became the economic
mainspring, and
the structure of modern law grew around the centralized
institutions that
needed protection for their reserves of capital, labor, and
hardware.
Both of these economic systems required stability. Their laws
were designed
to resist change and to assure some equability of distribution
within a fairly

187. static social framework. The empty niches had to be constrained
to preserve
the predictability necessary to either land stewardship or capital
formation.
In the Third Wave we have now entered, information to a large
extent
replaces land, capital, and hardware, and information is most at
home in a
much more fluid and adaptable environment. The Third Wave is
likely to
bring a fundamental shift in the purposes and methods of law
which will
affect far more than simply those statutes which govern
intellectual
property.
The "terrain" itself - the architecture of the Net - may come to
serve many of
the purposes which could only be maintained in the past by
legal imposition.
For example, it may be unnecessary to constitutionally assure
freedom of
expression in an environment which, in the words of my fellow
EFF co-

188. founder John Gilmore, "treats censorship as a malfunction" and
reroutes
proscribed ideas around it.
Similar natural balancing mechanisms may arise to smooth over
the social
discontinuities which previously required legal intercession to
set right. On
the Net, these differences are more likely to be spanned by a
continuous
spectrum that connects as much as it separates.
And, despite their fierce grip on the old legal structure,
companies that trade
in information are likely to find that their increasing inability to
deal sensibly
with technological issues will not be remedied in the courts,
which won't be
capable of producing verdicts predictable enough to be
supportive of long-
term enterprise. Every litigation will become like a game of
Russian roulette,
depending on the depth of the presiding judge's clue-
impairment.

189. Uncodified or adaptive "law," while as "fast, loose, and out of
control" as
other emergent forms, is probably more likely to yield
something like justice
at this point. In fact, one can already see in development new
practices to suit
the conditions of virtual commerce. The life forms of
information are
evolving methods to protect their continued reproduction.
For example, while all the tiny print on a commercial diskette
envelope
punctiliously requires a great deal of those who would open it,
few who read
those provisos follow them to the letter. And yet, the software
business
remains a very healthy sector of the American economy.
Why is this? Because people seem to eventually buy the
software they really
use. Once a program becomes central to your work, you want
the latest

190. version of it, the best support, the actual manuals, all privileges
attached to
ownership. Such practical considerations will, in the absence of
working law,
become more and more important in getting paid for what might
easily be
obtained for nothing.
I do think that some software is being purchased in the service
of ethics or
the abstract awareness that the failure to buy it will result in its
not being
produced any longer, but I'm going to leave those motivators
aside. While I
believe that the failure of law will almost certainly result in a
compensating
re-emergence of ethics as the ordering template of society, this
is a belief I
don't have room to support here.
Instead, I think that, as in the case cited above, compensation
for soft
products will be driven primarily by practical considerations,
all of them
consistent with the true properties of digital information, where

191. the value
lies in it, and how it can be both manipulated and protected by
technology.
While the conundrum remains a conundrum, I can begin to see
the directions
from which solutions may emerge, based in part on broadening
those
practical solutions which are already in practice.
Relationship and Its Tools
I believe one idea is central to understanding liquid commerce:
Information
economics, in the absence of objects, will be based more on
relationship than
possession.
One existing model for the future conveyance of intellectual
property is real-
time performance, a medium currently used only in theater,
music, lectures,

192. stand-up comedy, and pedagogy. I believe the concept of
performance will
expand to include most of the information economy, from
multicasted soap
operas to stock analysis. In these instances, commercial
exchange will be
more like ticket sales to a continuous show than the purchase of
discrete
bundles of that which is being shown.
The other existing, model, of course, is service. The entire
professional class -
doctors, lawyers, consultants, architects, and so on - are already
being paid
directly for their intellectual property. Who needs copyright
when you're on
a retainer?
In fact, until the late 18th century this model was applied to
much of what is
now copyrighted. Before the industrialization of creation,
writers,
composers, artists, and the like produced their products in the
private
service of patrons. Without objects to distribute in a mass

193. market, creative
people will return to a condition somewhat like this, except that
they will
serve many patrons, rather than one.
We can already see the emergence of companies which base
their existence
on supporting and enhancing the soft property they create rather
than
selling it by the shrink-wrapped piece or embedding it in
widgets.
Trip Hawkins's new company for creating and licensing
multimedia tools,
3DO, is an example of what I'm talking about. 3DO doesn't
intend to produce
any commercial software or consumer devices. Instead, it will
act as a kind of
private standards setting body, mediating among software and
device
creators who will be their licensees. It will provide a point of
commonality
for relationships between a broad spectrum of entities.
In any case, whether you think of yourself as a service provider

194. or a
performer, the future protection of your intellectual property
will depend on
your ability to control your relationship to the market - a
relationship which
will most likely live and grow over a period of time.
The value of that relationship will reside in the quality of
performance, the
uniqueness of your point of view, the validity of your expertise,
its relevance
to your market, and, underlying everything, the ability of that
market to
access your creative services swiftly, conveniently, and
interactively.
Interaction and Protection
Direct interaction will provide a lot of intellectual property
protection in the
future, and, indeed, already has. No one knows how many
software pirates

195. have bought legitimate copies of a program after calling its
publisher for
technical support and offering some proof of purchase, but I
would guess the
number is very high.
The same kind of controls will be applicable to "question and
answer"
relationships between authorities (or artists) and those who seek
their
expertise. Newsletters, magazines, and books will be
supplemented by the
ability of their subscribers to ask direct questions of authors.
Interactivity will be a billable commodity even in the absence
of authorship.
As people move into the Net and increasingly get their
information directly
from its point of production, unfiltered by centralized media,
they will
attempt to develop the same interactive ability to probe reality
that only
experience has provided them in the past. Live access to these
distant "eyes
and ears" will be much easier to cordon than access to static

196. bundles of
stored but easily reproducible information.
In most cases, control will be based on restricting access to the
freshest,
highest bandwidth information. It will be a matter of defining
the ticket, the
venue, the performer, and the identity of the ticket holder,
definitions which
I believe will take their forms from technology, not law. In most
cases, the
defining technology will be cryptography.
Crypto Bottling
Cryptography, as I've said perhaps too many times, is the
"material" from
which the walls, boundaries - and bottles - of cyberspace will be
fashioned.
Of course there are problems with cryptography or any other
purely
technical method of property protection. It has always appeared

197. to me that
the more security you hide your goods behind, the more likely
you are to turn
your sanctuary into a target. Having come from a place where
people leave
their keys in their cars and don't even have keys to their houses,
I remain
convinced that the best obstacle to crime is a society with its
ethics intact.
While I admit that this is not the kind of society most of us live
in, I also
believe that a social over reliance on protection by barricades
rather than
conscience will eventually wither the latter by turning intrusion
and theft
into a sport, rather than a crime. This is already occurring in the
digital
domain as is evident in the activities of computer crackers.
Furthermore, I would argue that initial efforts to protect digital
copyright by
copy protection contributed to the current condition in which
most
otherwise ethical computer users seem morally untroubled by

198. their
possession of pirated software.
Instead of cultivating among the newly computerized a sense of
respect for
the work of their fellows, early reliance on copy protection led
to the
subliminal notion that cracking into a software package
somehow "earned"
one the right to use it. Limited not by conscience but by
technical skill, many
soon felt free to do whatever they could get away with. This
will continue to
be a potential liability of the encryption of digitized commerce.
Furthermore, it's cautionary to remember that copy protection
was rejected
by the market in most areas. Many of the upcoming efforts to
use
cryptography-based protection schemes will probably suffer the
same fate.
People are not going to tolerate much that makes computers
harder to use
than they already are without any benefit to the user.

199. Nevertheless, encryption has already demonstrated a certain
blunt utility.
New subscriptions to various commercial satellite TV services
skyrocketed
recently after their deployment of more robust encryption of
their feeds.
This, despite a booming backwoods trade in black decoder
chips, conducted
by folks who'd look more at home running moonshine than
cracking code.
Another obvious problem with encryption as a global solution is
that once
something has been unscrambled by a legitimate licensee, it
may be available
to massive reproduction.
In some instances, reproduction following decryption may not
be a problem.
Many soft products degrade sharply in value with time. It may
be that the
only real interest in such products will be among those who

200. have purchased
the keys to immediacy.
Furthermore, as software becomes more modular and
distribution moves
online, it will begin to metamorphose in direct interaction with
its user base.
Discontinuous upgrades will smooth into a constant process of
incremental
improvement and adaptation, some of it manmade and some of
it arising
through genetic algorithms. Pirated copies of software may
become too
static to have much value to anyone.
Even in cases such as images, where the information is expected
to remain
fixed, the unencrypted file could still be interwoven with code
which could
continue to protect it by a wide variety of means.
In most of the schemes I can project, the file would be "alive"
with
permanently embedded software that could "sense" the
surrounding

201. conditions and interact with them. For example, it might contain
code that
could detect the process of duplication and cause it to self-
destruct.
Other methods might give the file the ability to "phone home"
through the
Net to its original owner. The continued integrity of some files
might require
periodic "feeding" with digital cash from their host, which they
would then
relay back to their authors.
Of course files that possess the independent ability to
communicate
upstream sound uncomfortably like the Morris Internet Worm.
"Live" files do
have a certain viral quality. And serious privacy issues would
arise if
everyone's computer were packed with digital spies.
The point is that cryptography will enable protection

202. technologies that will
develop rapidly in the obsessive competition that has always
existed between
lock-makers and lock-breakers.
But cryptography will not be used simply for making locks. It is
also at the
heart of both digital signatures and the aforementioned digital
cash, both of
which I believe will be central to the future protection of
intellectual
property.
I believe that the generally acknowledged failure of the
shareware model in
software had less to do with dishonesty than with the simple
inconvenience
of paying for shareware. If the payment process can be
automated, as digital
cash and signature will make possible, I believe that soft
product creators
will reap a much higher return from the bread they cast upon the
waters of
cyberspace.

203. Moreover, they will be spared much of the overhead presently
attached to
the marketing, manufacture, sales, and distribution of
information products,
whether those products are computer programs, books, CDs, or
motion
pictures. This will reduce prices and further increase the
likelihood of
noncompulsory payment.
But of course there is a fundamental problem with a system that
requires,
through technology, payment for every access to a particular
expression. It
defeats the original Jeffersonian purpose of seeing that ideas
were available
to everyone regardless of their economic station. I am not
comfortable with a
model that will restrict inquiry to the wealthy.
An Economy of Verbs
The future forms and protections of intellectual property are
densely
obscured at this entrance to the Virtual Age. Nevertheless, I can

204. make (or
VIEW COMMENTS
SPONSORED STORIES
reiterate) a few flat statements that I earnestly believe won't
look too silly in
50 years.
In the absence of the old containers, almost everything we think
we know
about intellectual property is wrong. We're going to have to
unlearn it.
We're going to have to look at information as though we'd never
seen the
stuff before.
The protections that we will develop will rely far more on ethics
and
technology than on law.
Encryption will be the technical basis for most intellectual

205. property
protection. (And should, for many reasons, be made more
widely
available.)
The economy of the future will be based on relationship rather
than
possession. It will be continuous rather than sequential.
And finally, in the years to come, most human exchange will be
virtual
rather than physical, consisting not of stuff but the stuff of
which dreams
are made. Our future business will be conducted in a world
made more of
verbs than nouns.
#MAGAZINE-2.03
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https://www.wired.com/story/google-alibaba-spar-over-
timeline-for-quantum-supremacy/
Google, Alibaba Spar Over Timeline for 'Quantum Supremacy'

212. T E C H R I V A L R Y
TOM SIMONITE
Congress' Latest Move to Extend Copyright Is Misguided
W I R E D O P I N I O N
LAWRENCE LESSIG
https://www.wired.com/story/google-alibaba-spar-over-
timeline-for-quantum-supremacy/
https://www.wired.com/story/google-alibaba-spar-over-
timeline-for-quantum-supremacy/
https://www.wired.com/story/google-alibaba-spar-over-
timeline-for-quantum-supremacy/
https://www.wired.com/author/tom-simonite/
https://www.wired.com/story/congress-latest-move-to-extend-
copyright-protection-is-misguided/
https://www.wired.com/story/congress-latest-move-to-extend-
copyright-protection-is-misguided/
https://www.wired.com/story/congress-latest-move-to-extend-
copyright-protection-is-misguided/
https://www.wired.com/author/lawrence-lessig/
https://www.wired.com/story/kik-founder-plots-a-rebel-alliance-
against-facebooks-death-star/

213. Kik Founder Plots a Rebel Alliance Against Facebook
C R Y P T O B A T T L E
ERIN GRIFFITH
What Happened to Facebook's Grand Plan to Wire the World?
B A C K C H A N N E L
JESSI HEMPEL
https://www.wired.com/story/kik-founder-plots-a-rebel-alliance-
against-facebooks-death-star/
https://www.wired.com/story/kik-founder-plots-a-rebel-alliance-
against-facebooks-death-star/
https://www.wired.com/story/kik-founder-plots-a-rebel-alliance-
against-facebooks-death-star/
https://www.wired.com/author/erin-griffith/
https://www.wired.com/story/what-happened-to-facebooks-
grand-plan-to-wire-the-world/
https://www.wired.com/story/what-happened-to-facebooks-
grand-plan-to-wire-the-world/
https://www.wired.com/story/what-happened-to-facebooks-
grand-plan-to-wire-the-world/

214. https://www.wired.com/author/jessi-hempel/
https://www.wired.com/story/tech-firms-move-to-put-ethical-
guard-rails-around-ai/
Tech Firms Move to Put Ethical Guard Rails Around AI
M A C H I N E L E A R N I N G
TOM SIMONITE
Senate Votes to Save Net Neutrality, but Hurdles Remain
I N T E R N E T R U L E S
KLINT FINLEY
https://www.wired.com/story/tech-firms-move-to-put-ethical-
guard-rails-around-ai/
https://www.wired.com/story/tech-firms-move-to-put-ethical-
guard-rails-around-ai/
https://www.wired.com/story/tech-firms-move-to-put-ethical-
guard-rails-around-ai/
https://www.wired.com/author/tom-simonite/
https://www.wired.com/story/senate-approves-measure-to-save-
net-neutrality/
https://www.wired.com/story/senate-approves-measure-to-save-

215. net-neutrality/
https://www.wired.com/story/senate-approves-measure-to-save-
net-neutrality/
https://www.wired.com/author/klint-finley/
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Questions:
1.On April 30, the Pew Research Center published the most
recent results of their ongoing Internet & American Life Project
survey, suggesting that a “declining majority of online adults
say the internet has been good for society.” After reading the
full report at Pewinternet.org,
a.Analyze and develop one of the reasons cited by the survey
respondents within the context of the class reading list.
b.Evaluate the extent to which the survey data reflects the
popular and academic discourse concerning the status of the
internet.
2.Are mass media conceptions of audience still useful in the
internet age? Argue how either Walter Lippmann’s “The World

219. Outside and the Pictures in Our Heads” or Stuart Hall’s
“Encoding/Decoding” can be adapted to consider new media
audiences.
3.Identify how the liberatory potential of the internet is framed
in two of the class readings, making sure to discuss the major
points of agreement and disagreement between authors. Choose
between: Yochai Benkler; Zeynep Tufekci; Cass Sunstein; and
John Parry Barlow.
4.Using at least two of the class readings, explain why
algorithms have been identified as having an important role in
the production and consumption of online media.
5.Have recent political events demonstrated the radical impact
of social media on the political process, or not? Explain your
position. In doing so, argue against the position of at least one
of the class readings or videos.