In place of what we have today, I think we would try, indeed we are trying, to reinvent a tamer, more controlled Web and to change the nature of the underlying network on which it operates. (This is a fear I share with those who have written about it more eloquently than I, particularly Larry Lessig and Yochai Benkler.) We would restrict openness of access, decrease anonymity, and limit the number of actions that a network participant could perform. The benefits would be undeniable. It would cut down on spam, viruses, and illicit peer-to-peer file sharing. At the same time, it would undercut the iconoclastic technological, cultural, and political potential that the Web offers, the ability of a new technology, a new service to build on open networks and open protocols, without needing approval from regulators or entrenched market players, or even the owners of the Web pages to which you link. 16
Imagine, by contrast, an Internet and a World Wide Web that looked like America Online, circa 1996, or Compuserve, or the French state network Minitel. True, your exposure to penis- enhancement techniques, misspelled stock tips, and the penniless sons of Nigerian oil ministers would be reduced. That sounds pretty attractive. But the idea that the AOL search engine would be replaced by Yahoo and then Google, let alone Google Maps? That new forms of instant messaging would displace Compuserve's e-mail? That the Chinese dissident would have access to anonymized Internet services, that you might make phone calls worldwide for free from your computer, or that a blog like BoingBoing would end up having more page views than many major newspapers? Forget it. Goodbye to the radical idea that anyone can link to any page on the network without permission. A revised network could have the opposite rule and even impose it by default. 17
A tamer network could keep much tighter control over content, particularly copyrighted content. You might still get the video of the gentlemen doing strange things with Mentos and soda bottles, though not its viral method of distribution. But forget about "George Bush Doesn't Care About Black People" and all your favorite mashups. Its controlled network of links and its limited access would never unleash the collective fact-gathering genius the Web has shown. For a fee, you would have Microsoft Encarta and the Encyclopedia Britannica online. What about the "right-click universe" of knowledge about the world gathered by strangers, shared on comparatively open sites worldwide, and ordered by search engines? What about Wikipedia? I think not. 18
The counterfactual I offer is not merely a counterfactual. Yes, we got the Web. It spread too fast to think of taming it into the more mature, sedate "National Information Infrastructure" that the Clinton administration imagined. But as Larry Lessig pointed out years ago, the nature of a network can always be changed. The war over the control and design of the network, and the networked computer, is never-ending. As I write these words, the battles are over "trusted computing" and "Net neutrality." Trusted computing is a feature built into the operating system which makes it impossible to run processes that have not been approved by some outside body and digitally identified. It would indeed help to safeguard your computer from viruses and other threats and make it harder to copy material the content owners did not want you to copy (perhaps even if you had a right to). In the process it would help to lock in the power of those who had a dominant position in operating systems and popular programs. (Microsoft is a big supporter.) It would make open source software, which allows users to modify programs, inherently suspect. It would, in fact, as Jonathan Zittrain points out, change the nature of the general-purpose computer, which you can program to do anything, back toward the terminal which tells you what functions are allowed.1 Think of a DVD player. 19
The attack on Net neutrality, by contrast, is an attempt by the companies who own the networks to be allowed to discriminate between favored and disfavored content, giving the former preferential access. (One wit analogized it to letting the phone company say, "we will delay your call to Pizza Hut for sixty seconds, but if you want to be put through to our featured pizza provider immediately, hit nine now!") Taken together, these proposals would put the control of the computer back in the hands of the owners of the content and the operating system, and control of the network users' choices in the hands of the person who sells them their bandwidth. At the same time, our intellectual property agenda is filled with proposals to create new intellectual property rights or extend old ones. That is the openness aversion in action. 20
Now, perhaps to you, the closed alternatives still sound better. Perhaps you do not care as much about the kind of technological dynamism, or anonymous speech, or cultural ferment that thrills the digerati. Perhaps you care more about the risks posed by the underlying freedom. That is a perfectly reasonable point of view. After all, openness does present real dangers; the same freedom given to the innovator, the artist, and the dissident is given to the predator and the criminal. At each moment in history when we have opened a communications network, or the franchise, or literacy, reasonable people have worried about the consequences that might ensue. Would expanded literacy lead to a general coarsening of the literary imagination? (Sometimes, perhaps. But it would and did lead to much more besides, to literature and culture of which we could not have dreamed.) Would an expanded franchise put the control of the state into the hands of the uneducated? (Yes, unless we had free national educational systems. "Now we must educate our masters" was the slogan of the educational reformers after the enlargement of the franchise in Britain in the nineteenth century. Openness sometimes begets openness.) Would translating the Bible from Latin into the vernacular open the door to unorthodox and heretical interpretations, to a congregation straying because they did not need to depend on a priestly intermediary with privileged access to the text? (Oh, yes indeed.) Would TV and radio play into the hands of demagogues? (Yes, and help expose their misdeeds.) 21
Openness is not always right. Far from it. But our prior experience seems to be that we are systematically better at seeing its dangers than its benefits. This book has been an attempt, in the sphere of intellectual property, to help us counteract that bias. Like the pilot in the cloud looking at his instruments, we might learn that we are upside down. But what do we do about it? 22
LEARNING FROM ENVIRONMENTALISM 23
I have argued that our policies are distorted not merely by industry capture or the power of incumbent firms, but by a series of cultural and economic biases or presuppositions: the equation of intellectual property to physical property; the assumption that whenever value is created, an intellectual property right should follow; the romantic idea of creativity that needs no raw material from which to build; the habit of considering the threats, but not the benefits, of new technologies; the notion that more rights will automatically bring more innovation; the failure to realize that the public domain is a vital contributor to innovation and culture; and a tendency to see the dangers of openness, but not its potential benefits.2 24
One of the most stunning pieces of evidence to our aversion to openness is that, for the last fifty years, whenever there has been a change in the law, it has almost always been to expand intellectual property rights. (Remember, this implies that every significant change in technology, society, or economy required more rights, never less, nor even the same amount.) We have done all this almost entirely in the absence of empirical evidence, and without empirical reconsideration to see if our policies were working. As I pointed out in the last chapter, intellectual property policy is an "evidence-free zone." It runs on faith alone and its faith consists of the cluster of ideas I have outlined in this book. Whether we call this cluster of ideas maximalism, cultural agoraphobia, or the openness aversion, it exercises a profound influence on our intellectual property and communications policy. 25