This might sound like empty campaign rhetoric but, in reality, Dean’s Internet platform contains the key elements and catch phrases of a more sophisticated master plan for cyberspace concocted by a group of academics and public officials who advocate a “commons” vision of collective Internet governance. Their agenda consists of a three-pronged strategy: (1) Infrastructure: They want telecom, cable, and broadband high-speed networks subject to collective rule via a heavy dose of open access regulation, structural separation or even outright public ownership. And they want the Internet to be treated as a collective asset subject to “democratic rule” through a variety of “nondiscrimination” mandates and other regulatory controls. (2) Spectrum: They want most of the electromagnetic wireless spectrum to be treated as one big commons with very limited exclusive property rights. (3) Intellectual property: They want to water down IP rights and greatly expand fair use rights and the public domain.
The triumvirate of FCC Commissioner Michael Copps, prolific Stanford University law professor Lawrence Lessig, and the New America Foundation (NAF) think tank deserve special mention since their advocacy of a cyber-commons has been particularly vociferous. These commons advocates would have us believe that the movement toward increasing privatization and commercialization of the Internet has been a disaster that must be reversed. Somehow, they claim, competition and “openness” in cyberspace are at risk because of the rise of private ownership and control of the many networks and assets that constitute “the Internet” as we know it.
The End Is Near and a Commons Will Save Us. For example, last October, Commissioner Copps delivered an apocalyptic sermon at the NAF entitled, “The Beginning of the End of the Internet?” In the speech, Copps lamented that the “Internet may be dying” and only immediate action by regulators can save the day. Copps laid on the sky-is-falling rhetoric fairly thick: “I think we are teetering on a precipice … we could be on the cusp of inflicting terrible damage on the Internet. If we embrace closed networks, if we turn a blind eye to discrimination, if we abandon the end-to-end principle and decide to empower only a few, we will have inflicted upon one of history’s most dynamic and potentially liberating technologies shackles that make a mockery of all the good things that might have been.”
Who knew the end was so near? Of course, it isn’t really. Copps and the commons crusaders have been preaching this gloom-and-doom gospel for some time now in an effort to impede governance solutions based on property rights in the communications and high-tech sectors and supplant them with collective governance structures. Copps’ “End of the Internet” speech was the logical culmination of years of work by NAF scholars and academics like Lessig, who have built a bona fide philosophical movement that rallies around the flag of “Saving the Information Commons,” to use the title of one NAF report. Lessig has gone so far as to suggest that the very “Future of Ideas” may be at stake if steps are not taken to preserve “openness” on the Internet. And now comes Howard Dean’s campaign tech platform, which promises to put this plan into action if he takes over as commander-in-chief this time next year.
In their work, the commons crusaders often lambaste property rights, fearing that too much private control of infrastructure, wireless frequencies, or intellectual creations threatens ideas, innovation, openness, and competition in this sector, and, in a much broader sense, our very culture and democracy. Interestingly, the commons crowd also suggests that their worldview is more consistent with a free and open society. In fact-especially on the spectrum and IP fronts-the commons crowd actually argues that their vision might one day lead to a withering away of the state in the affairs of this sector. But they fear this day will never come if markets and property rights gain too much of foothold in our new cyber-society.
Excuse Me, But Isn’t It the Other Way Around? Are markets and property rights really antithetical to openness, ideas, expression, knowledge, culture, diversity, and democracy? History shows that the exact opposite is the case. Markets and property rights have served as the foundation for those virtues. Indeed, and it is still the case today, cultures and nations that refuse to allow markets and property rights to develop have a lamentable track record on all of those fronts. History has shown, again and again, that the absence of property rights and free exchange leads to economic ruin, cultural stagnation, and political tyranny. It seems that the seductive charm of “the commons” is once again leading a large number of people to think a world without property rights is not only possible, but would somehow bring about a mythical cyber-nirvana.
The commons crowd would be quick to respond that this mischaracterizes their argument. Indeed, although it is tempting to dismiss much of this commons thinking as the random rants of a handful of 60s radicals who are still angry that Marxism got left on the ash heap of history, such a characterization would ignore their more refined way of thinking about the relationship between markets and “the commons.” Unlike many of their intellectual forebears, today’s commons crowd does not regard capitalism and markets as inherently evil or exploitative, rather, they see markets and property rights as a means to an end that must be tempered with a very strong dose of collective decisionmaking. Expanding the scope of “democratic rule” and “the commons”-however they choose to define those terms-is their recommended medicine. Nonetheless, they make it clear that they are not advocating the overthrow of the capitalist order and the empowerment of the proletariat, or any other neo-Marxist nonsense.
But there remains a question of balance here, and the commons crowd gets that balance entirely wrong. Certainly there is a place for some commons within our society, but that society should be structured and governed by property rights. The commons crowd seems to reverse that equation by suggesting we need to carve out a little room for property rights in a world of collective rule. And that sort of thinking is downright dangerous, for if we allow ourselves to believe that collectivism is the central organizing principle of cyberspace, we are doomed to repeat the mistakes of the past. Treating the Internet, broadband networks, spectrum, and IP like socialized property will not lead to a cyber-nirvana but to a scarcity of those very things if the Dean-Copps-Lessig vision of cyberspace collectivism prevails.
