April 13, 2004

Bassett: Lynch, Lessig, the Irish and '60s Rebels

by Guest Contributor

Graham Bassett is an Australian LLB (Bachelor of Laws) who is "converging law, information technology and education to foster an autonomous cyberspace" - Ed.

What is an autonomous cyberspace?

First, it is necessary to examine a legal definition of cyberspace. It has been described thus:

The Internet is essentially a decentralised, self-maintained telecommunications network. It is made up of inter-linking small networks from all parts of the world. It is ubiquitous, borderless, global and ambient in its nature. Hence the term "cyberspace".

This is a word that recognises that the interrelationships created by the Internet exist outside conventional geographic boundaries and comprise a single interconnected body of data, potentially amounting to a single body of knowledge. The Internet is accessible in virtually all places on Earth where access can be obtained either by wire connection or by wireless (including satellite) links.
Effectively, the only constraint on access to the Internet is possession of the means of securing connection to a telecommunications system and possession of the basic hardware.
Dow Jones & Company Inc v Gutnick, 2002.

Second, it is necessary to examine the nature of cyberspace. The Net was a libertarian space in its early phase. The Web was originally designed to allow minimal intervention by third parties between two end users. The architecture was such that freely available protocols enabled unfettered connections. Its standard protocols for cross-platform communication (TCP/IP), provision of collegial rather than proprietorial access to open source software and end-to-end architecture greatly empowered end-users.

Having a decentralized, non-authoritarian structure with bottom-up governance, it was owned by no single entity. Thus, John Perry Barlow was able to claim: "Your legal concepts of property, expressions, identity, government and context do not apply to us. They are all based on matter, and there is no matter here." (See Declaration of Independence in Cyberspace.)

This architecture facilitated disintermediation. It places power and control in the hands of end users and disintermediates traditional forms of regulation. (For example see: Lessig L, & Lemley M, "Petition to the FCC In the Matter of the Transfer of Control of Licenses from MediaOne Group, Inc to AT&T Corp" (1999)) The role of regulatory intermediaries, such as governments and institutions is depleted thereby. The customs officer in the airport hunting for infringing CDs is redundant in a world where music can be distributed by the click of a button in a bedroom.

Third, we must look examine the concept of property in cyberspace. To date,
lawyers and their market have operated in "the world of atoms" where activities and laws relating to them conform to linear and sequential thinking. This copyright law saw the pirate as a person sitting at an airport with multiple CD's hoping to avoid customs. The property involved was manifested in a material atom form even if the ownership was merely based on a license or assignment of an IP right.

"To a significant extent, our legal scholarship has remained fixed within this model of converting sequentially-stored dilute information into useful epitomes conforming to the intellectual prepossessions of the era," sums up one commentator on the pre-digital world of law.

But now property is made up of bits. To use the phrase of Nicholas Negroponte, most contemporary information technology innovation and inventions exist in the 'world of bits' -- the inventions are nothing more than strings of '1's' and '0's' easily altered, transferred and copied. Data is non-linear, non-sequential and hypermediated. (Negroponte, Being Digital). The music pirate sits at home cutting gup bits and sending them to a world-wide market almost instantaneously.

As e-commerce emerged the libertarian structure of the Net was questioned. Commerce demanded trust between end-users. Liberty did not loom so large. The challenge to conventional law and commerce in cyberspace was pithily stated by Net founder John Perry Barlow:

The enigma is this: if our property can be infinitely reproduced and instantaneously distributed all over the planet without cost, without our knowledge, without its even leaving our possession, how can we protect it? How are we going to get paid for the work we do with our minds? And, if we can't get paid, what will assure the continued creation and distribution of such work?

Fourth, there has been a growing awareness that more regulation, not deregulation, is necessary. Cyberspace is subject to increasing regulation but in a climate where governments are reluctant to do so. Cyberspace has developed in period of decreasing government intervention and regulation. This has been an aim of those promoting of the increasing privatisation of commerce and society.

But as Lessig points out, when government proves reluctant to regulate, it is not as though nothing else takes its place. He sees this anti-governmentalism as an immature hangover of the 60's rebels:

We have become like the Irish. We too indulge this self-indulgent "anti-governmentalism." We have lost the ideal that there is a role for government. Especially we who spend too much of our time using electrons to interact; especially we who still stand amazed at the potential of this new world; especially we, who cannot remember a time when there was not an underbelly to every story about a hero. We are the children of David Lynch, who cannot help but believe that just beneath the surface of every beautiful and pristine world there is decay. We listen to the promises of our governors no differently than the Soviets listened to the promises of their governors. We, like the Soviets, have heard it all before. "Hope" for us is not a place. "Hope" is a television commercial.

This is pathology. When government steps aside, it is not as though nothing takes its place. When governments disappear, it is not as if paradise prevails. It is not as if private interests have no interests, as if private interests do not have ends that they will pursue. To push the anti-government button is not to teleport us to Eden. When the interests of governments are gone, other interests take their place. Do we know what those interests are? And are we so certain they are better?

Lawrence Lessig, Symposium: KEY Address: Commons and Code, 9 Fordham I. P., Media and Ent. L.J. 405

Lessig argues that in this time of small government that the problem is that
market forces are carrying out regulation. For example, technological
protection measures can be created by private companies that create software
that overpower fair use rights granted under copyright law. Private regulators are not necessarily concerned with maintaining public values.

To enhance e-commerce is that commercial relationships need to be based on trust. Thus the spam marketers of penis envy, mortgage reduction and breast enlargement abuse our trust by abusing our right to consent to receiving their communications. They deny us autonomy in expressing this consent. An earlier comment on emerging problems for internet commerce highlighted the need for individual autonomy in order to create trust:

...we would need to fulfil a background condition, so that the choice whether or not to buy will count as an autonomous choice. But this is the background condition that modern commerce cannot often fulfill. Even if purveyors of products-plus-terms tell the truth about them, even if all the fine print is on the website for all to peruse and download if they wish, it is not efficient or even possible for buyers to take the time to understand all this information.

Finally, autonomous cyberspace will be based on transparent regulation. If we know what is being regulated and how it is being regulated as a citizen we can evaluate this regaulation. One of the criticism of the Australian system of content filtering is that the public has no way of ascertaining what is being filtered - see case comment on EFA v ABA - thus the system lacks transparency, and trust deteriorates.

So is autonomous cyberspace this? I would be happy to hear back from people on this discussion group how they would define it but here is my attempt:

It is a cyberspace regulated in a way that enhances the power of end-users to the degree that is fair and reasonable for them to maintain trusting relationships. Regulation by third parties between end-users should be minimal and transparent and the necessity for it outweighs alternative forms of regulation.

Of course, this brings us to the question of what are the modalities of regulation -- but this is a question for another day.

April 13, 2004 12:00 AM | TrackBack

Your definition of an autonomous cyberspace is definately "power to the people". Perhaps "end users" (which, to me, implies consumers of whatever the net is offering) should be broadened to "content producers and content consumers". These are both at the end of the "end-to-end" Lessig speaks of.

An autonomous cyberspace is one where both are able to maintain trusting relationships with each other without needing a middle man to regulate the relationship and protect them from each other.

Thus we avoid the current scenario where content producers are considered "cheapskates" because of heavy limitations imposed on content distribution.

Similarly we avoid the current wisdom that content consumers are "pirates" whenever they step outside extraordinarily limited fair use.

Bring on Creative Commons!

Posted by: Evan Read at April 15, 2004 07:31 PM
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