Person:

Lessig III, Lester

In order to preserve the rapid rate of innovation generated by the Internet, Congress must act to maintain the Internet’s network neutrality and its “end-to-end” design. To accomplish this goal, Congress should adopt the “Internet Freedoms”— access to content, use of applications, attachment of personal devices, and obtainment of service plan information — proposed by Federal Communications Commission (“FCC”) Chairman Michael Powell. In addition to adopting these freedoms, Congress should further act to prevent access-tiering — whereby providing content or service on a network is contingent upon the payment of a fee. Adopting an access-tiering policy would inhibit the fair competition of newly emerging Internet services and thereby delay further Internet developments at a time when the Internet is critical for the U.S. economy. Instead of adopting an access-tiering policy, Congress should preserve the current end-to-end design because it facilitates competition and creates innovative Internet uses at the margins of the network.

There is a public domain, but it is small, relative to its history, and it is shrinking. Digital technology will only speed its decline. And because most are oblivious to the particular threat that digital technology poses for the public domain, the prospects for reversing this trend are not promising. On the present path, the idea of the public domain will be as familiar to our children as the intergovernmental tax immunity doctrine is to our students.

This loss of the public domain, properly understood, will be a profound loss for freedom and culture, or more precisely, free culture. It will also be persistent. For the mechanisms that will effect the elimination of this domain are not merely legal doctrines. The mechanisms are machines protected by the most powerful (if delicate) technologies of control that man has devised.

My aim in this essay is to frame a way of talking about this public domain, and to map a strategy for its defense. The defense will come both from rebuilding the public domain, properly understood, and from crafting an "effective" public domain-meaning a free space that functions as a public domain, even though the resources that constitute it are not properly within the public domain.