THE OPEN ARCHITECTURE OF THE DIGITAL COMMUNICATION PLATFORM: ECONOMIC AND LEGAL PRINCIPLES FOR SUSTAINING THE DIGITAL REVOLUTION MARK COOPER FELLOW, STANFORD LAW SCHOOL CENTER FOR INTERNET AND SOCIETY APRIL 25, 2005

Open transportation and communications networks are deeply embedded in the DNA of capitalism and are the lifeblood of democracy. The Internet is the purest form of an open communications network we have ever experienced. But, there are constant threats to its openness at every layer.

As a full-time activist and part-time academic I insist that this is not simply a debate about the law of property, but the political economy of property and about creating the institutions under which we want to live.

Open to users. It does not force users into closed groups or deny access to any sectors of society, but permits universal connectivity, as does the telephone network. Open to providers. It provides an open and accessible environment for competing commercial and intellectual interests. For example, it does not preclude competitive access for information providers. Open to network providers. It makes it possible for any network provider to meet the necessary requirements to attach and become a part of the aggregate of interconnected networks. Open to change. It permits the introduction of new applications and services over time. It is not limited to only one application, such as TV distribution. It also permits the introduction of new transmission, switching, and control technologies to become available in the future

FREE SOFTWARE DEVELOPMENT PRINCIPLES FREEDOM TO RUN THE PROGRAM FOR ANY PURPOSE FREEDOM TO STUDY AND MODIFY PROGRAMS FREEDOM TO REDISTRIBUTE FREEDOM TO CHANGE AND IMPROVE

Wait a darn minute! This is intellectual property and telecommunications plant. It is private property. What right does Cooper have to claim access to it? Here at the Stanford Law School Center for Internet and Society we might respond

LARRY (FREE CULTURE) LESSIG v. THE HOOVER TOWER These forms of property have always been subject to rules of public governance.

Intellectual property is born free under the constitution, but everywhere enchained by legislation. Communications and transportation property are affected with the public interest from the beginning.

The term of the copyright was limited and fair use was allowed, while many uses were simply unregulated by copyright. Telecommunications plant was subject to rules of common carriage. By law, interconnection with other networks and carriage of traffic were provided on non-discriminatory rates terms and conditions. Later rates were required to be just and reasonable.

The telephone has become as much a matter of public convenience and of public necessity as were the stagecoach and sailing vessel a hundred years ago, or as the steamboat, the railroad, and the telegraph have become in later years. It has already become an important instrument of commerce. No other known device can supply the extraordinary facilities which it affords. It may therefore be regarded, when relatively considered, as an indispensable instrument of commerce. The relations which it has assumed towards the public make it a common carrier of news – a common carrier in the sense in which the telegraph is a common carrier – and impose upon it certain well defined obligations of a public character. All the instruments and appliances used by the telephone company in the prosecution of its business are consequently, in legal contemplation, devoted to a public use. Hockett v. State Indiana, 1886,

If nature has made anyone 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 he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, 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 particularly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in 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. Thomas Jefferson, 1813

Dimension. Modality. Digital Communications of. of Dimension Modality Digital Communications of of Platform (Internet, Web Social Order Regulation Peer-to-Peer, Open Source, Unlicensed Spectrum) Technology Architecture Distributed Intelligence, Participatory, Intensive Open Communications Economy Market Decentralized, Collaborative, Cooperative Social Norms Voluntary, Transparent Institutions Non-hierarchical, Non-Discriminatory Polity Law Deliberation, non-coercive, Egalitarian, Responsive, Property as Distribution, not exclusion

WEB BROWSER AS KILLER APP FOR THE PC AND THE INTERNET

This is more than a debate about political economy, it is a life or death struggle to create a set of social institutions that are true to our progressive, capitalist, democratic traditions.

We live in interesting times as academics because we are redefining the terms of property. We live in important times for activists because we have the opportunity to choose the kind of society in which we will live by writing new rules of public governance.

The excessively propertized, privatized world, without public governance and obligations is a mistake, a radical break with our legal tradition, economic experience and social history.

IT WILL CHILL INNOVATION (TECHNOLOGY) SLOW GROWTH (ECONOMY) INCREASE INEQUALITY & STIFFLE CREATIVITY (SOCIETY) UNDERMINE FREE (CHEAP) SPEECH (POLITY)

We are enabling commerce in a way we did not before; we are contemplating the regulation of encryption; we are facilitating identity and content control. We are remaking the values of the Net, and the question is “Can we commit ourselves to neutrality in this reconstruction of the architecture of the Net?” I do not think we can. Or should. Or will. We can no more stand neutral on the question of whether the Net should enable centralized control of speech than Americans could stand neutral on the question of slavery in 1861. We should understand that we are part of a worldwide political battle; that we have views about what rights should be guaranteed to all humans, regardless of their nationality; and that we should be ready to press those views in this new political space opened up by the Net. Lawrence Lessig, Code

This quote from Lessig may sound a bit melodramatic, but it was actually prescient. It recognized the stakes long before they had become clear to other. And, it makes the point about property I have been making in the most forceful way. The decision about slavery was a redefinition about how society defined property. It took property rights away from some and gave them to others. It also makes the point about activism. John Kennedy said it well “The hottest places in hell are reserved for those who remain neutral during times of moral crisis.”