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 / Second Quarter 2002 / Issue 27(originally published by Booz & Company)


Lawrence Lessig: The Thought Leader Interview

Ideas — and expression — are resources that are nonrivalrous. Your use of my poem doesn’t decrease my opportunity for using the poem. And the same is true with the particular commons that I focused on in my book: the innovation commons.

The innovation commons is a commons that was constructed by the architectures of the Internet. By embracing an end-to-end design, the Internet’s architects made it such that the network itself could not control who, what, or what kind of applications got to run on the network. The network didn’t have that intelligence. So from a conceptual standpoint, it took the right to innovate and placed it in a commons that anybody could use. That’s a kind of commons where there is no potential tragedy because your innovation for the Internet doesn’t decrease my ability to innovate for the same Internet. This commons invites a comedy, not a tragedy — a comedy in the sense that the more people use it and do things with it, the more valuable it becomes to everybody.

Now there is a tragedy with the innovation commons. This is the second sense of tragedy I described, and this sense I do embrace. This tragedy is happening because of steps being taken by corporations and governments to enclose this commons. The enclosure, which is coming from increasing control at the physical layer and increasing control from the content layer, will erode this commons.

S+B: The Future of Ideas says that the Internet became a commons because any device could be connected. And the code or content layer is free, as well as the physical layer, the telephone lines most traffic runs on. Now, as the Internet moves to the wireless arena, one would assume all bets are off. Everyone ought to have access, but why isn’t it transpiring in that way?

LESSIG: Spectrum itself could function as a commons. If portions were architected so that there was a certain amount of free spectrum, then cable and telephone company interests in wireless could coexist with free use. This would create a great deal of innovation. But my concern is that there is such strong pressure against this, and such a misunderstanding about the dynamics of free spectrum, that instead there is a push toward what people call the marketplace solution.

That gets translated into auctioning off spectrum, which could quickly develop into the equivalent of the cable companies’ owning the cable, and then once again they can use the spectrum however they want, and if they’re strong enough, they can use it to block competition. But the key here is to preserve a commons in the spectrum layer. In the broadband race, if you encourage a stronger development of wireless, this could very quickly develop into competition for these two quasi-monopolists.

S+B: Does the battle then move beyond DSL and cable modem?

LESSIG: Right, add a third competitor like wireless that doesn’t depend upon high infrastructure costs, and all of a sudden you’ve got a real race. The FCC could do that fairly easily, but only if it understands the value of commons resources.

S+B: Isn’t it just due to a fortuitous set of circumstances that the Internet was architected the way it was, that it ran on the Unix operating system, which was freely available to everybody?

LESSIG: You’re right, but it might have just been fortuitous that they chose, for example, to put TCP/IP protocol in the public domain. And that it was run on an operating system that was generally open and modifiable. But that doesn’t change the character of the thing that this fortuity produced.

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