tial THE FATE OF THE COMMONS IN A CONNECTED WORLD Lawrence Lessig @ VINTAGE BOOKS A DIVISION OF RANDOM HOUSE. INC NEW York Zen ZookBuilding hocks: “Commons” and “Layers 1S 900K is fundamentally about the Internet and its effect on innova tion, both commercial and non-, “Intemet” and “society” are fami ‘enough notions. Butat the core of my argument are two fairly obscure ideas old idea; layers, in the sense made familiar by network theari tively ew. But the two together organize the argument that follows. They ing blocks to an end that will help reveal the Intemets effet on society: THE COMMONS IF roU'VE used the word commons before, you'e likely to think ofa park, 4s in the Boston Common. Ifyou've studied economies or political science, your mind will race to tragedy (as in “the tragedy of the commons”), Both, Senses are related to what | mean, but nether alone i enough.! ‘The Oxford English Dictionary (mankind! first large-scale collaborative ‘open source text project)? equates the “commons” to a resource held “in common.” That it defines as “in joint use or possession; to be held oF e joyed equally by @ number of persons. In this sense, a resource hel common” is “free” (as Pve defined that term) to those “personsmunity has aight without obtaining the permission of anyone else. ‘ase, permission is needed buts granted in a neutral way “Think about some examples: + The public steets are commons. Anyone is fee to access the streets thout first getting the permission of someone else, We don't auction 3g the right to se @ particular bit of highway dur- ing particlar bitof time. (Ofcourse there are exceptions.) Nor do we insist on particular licenses before we allow people to use the streets or highways. Instead the highways ae open and free—in the sense T mean ‘a commons to be fe. Parks and beach mons, Anyone is free to access these spaces jon of someone else. Access is not auctioned off to the highest bidder, and the right to control ac- not handed off to some private or govemmental entity. The recreational resource” ~is made resource ~as Carol Rose calls it, available to anyone. en's theory of relativity is « commons. It sa resource—a way of ‘understanding the nature of the universe —thatis open and free ‘one to take. Access to this esonrce is not auctioned off to the highest bidder; the right to use the theory is not allocated to a single organiza tion ‘Writings in the public domain are commons. They are aresource that is open and free for anyone to take without the permission of anyone clse. An 1890 edition of Shakespeare is fee for anyone to take and copy. ‘Your right to use and redistribute that 1890 texts without restraint. free” for others to Each ofthese resourees is held in common, Eact take, Some are free in the sense that no price is paid (you can use most roads without paying a tol; 2s we will se, it would be unconstitutional in the United States to requize anyone to pay to use Einstein's theory of telatvity). Some ate fee even though a price must be paid (a park “free” in the sense that mean even ifan aeces fee is equited—as long as the fee is neutally and consistently applied) + In both cases, the esvential feature is reasonable, land that aceess to the resource is not conditioned upon the permission of someone else. The essence, in other words, is that mo one exercises the core of a property right with respect to these resources—the exclusive right to choose whether the resource is made available to others.’ Economists nil object, however, that my lst conflate two very different cases, Einstein’ theory of relativity is diferent from the streets or public beaches. Einstein’ theory is fally “nonrivalrous’; the streets and beaches ate not. Ifyou use the theory of relativity, there is as much leftover afterward a there was before, Your consumption, in other words, does not rina! my own, But roads and beaches are very different. If everyone tries to use the roads a the very same time (something that apparently happens out here in ornia often), then their use certainly rivals my own, ‘Traffic jams; pub. Jie beaches crowd. Yout SUV, or your loud radio, reduces my ability to enjoy the roads or beach, ‘The economists are right. This ists’ analytics. We have always described as “com mons” both tivelrous and nonrivalrous resources. The Boston Common is 8 commons, though its resource is rivalrous (may use of it competes with yout use off). Language is a commons, though its resource is nomtivale (ay use of it does not inhibit yours) What has determined “the commons," then, isnot the simple test of. ss, What has determined the com ‘mons is the character of the resource and how it relates fo a community. In theory, any resource might be held in common (whether it would survive is another ). But in practice, the question a society mus ack is which resources should Be, and for those resources, how. Here the distinction that the economists draw begins to help. Economists eistinguish tivalrous and nontivalrous resources because the istues or prob- lems raised by each kind are diferent. Ifa resource is nonrivalrous, then the problem is whether there is enough incentive to produce it, not whether there is too much demand fo consume it. A nonrivalrous resource can't be exhausted. Once it is produced, itean't be undone, Thus the issue for nonrivalrous resouces is whether the Edit Whartons of the world have enough incentive to create. The problem wi nonrivalrous resources is to assure that I reap enough benefit o induce me tosow. A tivalrous resource presents more problems. Ifa resource is rivalrous, then we must worry both about whether there is sufficient incentive to re itis the sort of resource that humans produce) and about whether consuunption by some will leave enough to others. With a rvalious re- source, I must stil worry that Iwill eap enough benefit to make it worth it deplete the resourc |, these isa vis produced. Ifa rivalrous resource is open to depleted by the consumption of alofa rivalrous resource is the dynamic that biologist Gar- sett Hardin famously termed “the tragedy ofthe commons.” “Picture a pas- ture open to all” Hardin writes, and consider the expected behavior of “herdsmen” wine roam that paste, Bach herdsman must decide whether todd one more animé hherd. In making a decision to do so, Hard swtites, the herdsman reaps benefit, while everyone else suffers. The herds man gels the benefit of one more animal, yet everyone suffers the cost, because the pasture has one more consuming cow. And this defines the problem: Whatever costs there are in adding another animal are costs that others beat. The benefits, however, arc enjoyed by a single herdsman. "Therefore each herdsman has an incentive to add more cattle than the pas ture asa whole can bear. At Hardin describes the consequence: is locked into a system that compels him his herd in world that is limited. Ruin is the tion toward which all men rush, each pursuing his own best interest inva tociety that believes inthe freedom of the commons. Freedom incom nigra fo all “This “tragedy” consumes talk about “the commons” “Ruin” is taken for granted as the destiny of those who believe in the “freedom of the com rons.” Harcheaded sorts thus scorn the shetoric of ungivided resoucee. Only the romantic wastes time wondering about anything diferent from the perfect control of property But obviousy Hardin was not describing a law of nature that must apply to every good left in the commons. There is, for example, no tragedy for nonrivalrous goods left in the commons—no matter how many times you read a poem, there's as much leftover as there was when you started. there always a tragedy even for rivalrous goods. As resesrchets have shown, in many diferent contexts, norms adequately limit the prablem of over consumption.’ Communities work out how to regulate overconsumption. How and why are cestainly complex questions. But that some do is undeni- able. ‘We therefore can't just jump from the observation that 2 resou common” to the conclusion that “freedom in a commons all Instead, we must think empirically and look at what works. Where there isa benefit fom leaving a resource free, we should see whether there is a way to avoid overconsumption, or inadequate incentives, without its ling under cither state or private (market) conte ‘common an mons not through nortns, but also through a specific technical architecture. The [Net of these notmns and this architecture is a space where creativity can Rousish. Yet so blind are we to the possible value of a commons that wwe don't even natice the commons that the Internet is. And, in tum, this vweaken this commons. There is a tragedy identify here; it is the tragedy of losing the innovation com- ‘ons thatthe Internet is, through the changes that are being rendered on top! LAYERS ‘THE 1De4 of the commons may be obscure, but the notion of “layers” is ‘more easily recognized. The layers that I mean here are the different layers 2 communications sjstem that together make communications pos sible. The idea is taken fiom peshaps the best communications theorist of ‘our generation, NYU law professor Yochai Benkler. Ashe uses the idea, it helps organize our thought about how any communications system furc- §n organizing our thought, his work helps show something we Following the technique of network architects, Benker suggests that we tundesstand @ communications system by dividing it into three distinct “Iay- the bottom isa “physical” layer, across which ci i the computer, or wites, that link computers on the Internet. In the middle is a “logical” or “code” layer—the code that makes the hardware sun, Here we might include the protocols that define the Internet and the software upon which those protocols run, At the top is a “content ‘the actual stuf that ges said or transmitted across these wites. Here we in clude digital images, texts, online movies, and the like. These three layers, function together to define any particular communications system. Each of these layers in principle could be contelled or could be fre. Each, that is, could be owned or each could be organized in 2 commons. ‘We could imagine 2 world where the physica layer was fiee but the logical and content ayers were not. Or we could imagine a world where the pai