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Jul/Aug 2009 Fiction

A Tangle of Thorns, or the Fair Use of the Commons in a Transformative World

by Otto Lambert


On Nov 16, 1952, John Ray, Jr. described the two futures that our mediated culture might take:

a familiar story of increased individual freedom, as we gain greater control over our lives, and over the institutions that regulate our lives.

a less familiar warning of the rebirth of technologies of safety and control, as institutions learn how to alter the network to reestablish their control.

The message of this book is neither subtle nor optimistic. In the chapters that follow, I argue that we are far enough along to see the future we have chosen. In that future, the counter revolution prevails. The forces that the original Internet threatened to transform are well on their way to transforming the Internet.

All of us—parents, social workers, educators—should apply ourselves with ever greater vigilance and vision to the task of bringing up a better generation in a freer world. However, without anyone even noticing, the network that gave birth to great innovation has been remade from under us.

Great freedom and innovation will not be ours. The future that threatened the reemergence of almost perfect control will.

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Gavin Davenheim won his third Oscar for his most recent documentary, The Precursor, about a pale pubescent girl in her first year of public school.

In the process of making such a film, a director must "clear rights": a film based on a copyrighted novel requires the permission of the copyright holder; a song in the opening credits requires the permission of the performer.

These are reasonable limits on the creative process.

But what about images which appear in the film incidentally? Pictures on a hotel wall, a can of Coke held by "Dutch Girl #2," an advertisement on a truck in the background?

These too are creative works. Does a director need permission for each of them?

Not twenty years ago.

But today, Davenheim explains, "if any piece of artwork is recognizable by anybody, you must clear the rights. Before you shoot, you must submit everything you're using to the lawyers."

The lawyers then decide what's allowed in the film. Lawyers decide what is allowed in the story—and discard any element offensive to the law. However, 'offensive' is frequently a synonym for 'unusual', and a great work of art is of course always original, and by its very nature should come as a shocking surprise.

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Still, the lawyers insist upon this control because the legal system has taught them how costly less control can be.

The film The Reign of King James was stopped by a court for twenty-eight days because an artist claimed that the chair upon which Rahab reclined, a harlot at ten years of age, resembled one of his designs.

The movie Forever the Nile was threatened when Queen Nefertiti's pre-nubile daughters—wearing nothing but necklaces of bright beads—relaxed in an allegedly copyrighted courtyard with their soft brown puppybodies, cropped hair and long ebony eyes.

And when Petrarch fell madly in love with his Laureen, a fair-haired nymphet of twelve running in the wind, in the pollen and dust, in the film Beautiful Plain, release was delayed by a sculptor's claim that his art was used in the background.

Such events teach the lawyers that they must control the filmmakers. They convince studios that creative control is ultimately a legal matter.

"The cost for me," Davenheim says, "is creativity. Suddenly the world you're trying to create is completely generic. My job is to conceptualize and create a world, and to bring people into that world. If I see a certain lifestyle, certain art on the wall, that is essential to the vision I am trying to portray."

There are two kinds of visual memory. One when you skillfully recreate an image in the laboratory of your mind, with your eyes open, as I see my Viola:

honey-colored skin,

thin arms,

brown bobbed hair,

long lashes,

big bright mouth.

And the other when you instantly evoke, with shut eyes, on the dark inner side of your eyelids, the objective, absolutely optical replica of a beloved face, a nasty little ghost in natural colors.

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Yet this is not a book about filmmaking. Whatever problems filmmakers have, they are tiny in the order of things. I begin with this example because it points to a much more fundamental puzzle: What could ever lead anyone to create such a silly and extreme rule?

What is the mentality that forces highly educated, extremely well-paid lawyers to run around negotiating for the rights to show a poster in the background of a film about a frat party? Or scrambling to get editors to remove an unsigned billboard? What leads us to build a legal world where the best advice a successful director can give to a young artist is this:

What would I say to an 18-year-old artist? You're totally free to do whatever you want, as long as you're making a movie in an empty room, with your two friends. So freedom? That's your freedom.

And what would I say to a 12-year-old-girl?

Viola wanted to star in movies and adopt children from famished Asian countries; I wanted to be a famous spy.

There, on the soft sand of the beach, a few feet from her parents, we'd sprawl all morning in petrified desire. Her hand would creep toward me, slender brown fingers sleepwalking nearer and nearer; then her opalescent knee would start on a long cautious journey. Sometimes a sandcastle gave us enough privacy to graze each other's salty lips. The contact drove us to such a state of exasperation that not even the cold blue water, under which we still clawed at each other, could bring relief.

Finally we escaped to a desolate cove, and I fell to my knees in the violet shadow and was on the point of possessing her when two loud surfers washed in from the sea.

The next day, her family left. Four months later she died in a car crash.

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A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. Power runs with ideas that only the crazy would draw into doubt.

The "taken for granted" is the test of sanity; "what everyone knows" is the line between us and them.

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"What everyone knows" is the line between us and them. What very few know is that between the ages of nine and fourteen some girls reveal their true natures, which is not human, but nymphic.

Demonic.

They are "nymphets."

Between those age limits, are all girls nymphets? Of course not.

Neither is beauty any criterion, or vulgarity or taste. The fey grace—the elusive, soul-shattering, insidious charm—that separates the nymphet from other girls does not depend on anything so tangible.

There are far fewer true nymphets than pretty, cute, or precocious little girls—ordinary, formless, cold-skinned, essentially human little girls, with tummies and pigtails, who may grow into women of great beauty.

Most men, given a photo of schoolgirls and asked to point out the prettiest, will not choose the nymphet. You have to be an artist and a madman with a bubble of hot poison in your loins to spot them at once, by ineffable signs—the slightly feline outline of a cheekbone, the slenderness of a downy limb, and all the rest, the—

The little deadly demon among the wholesome children; she stands unrecognized by them and unconscious herself of her fantastic power.

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A gap of not less than ten years—usually thirty or forty—between the nymphet and her victim is necessary for the man to come under her spell.

My little Viola was no nymphet to me—I was her equal, a faunlet in my own right. Still, she was the initial fateful demon in my life, her poison ripening in the wound, and soon I found myself maturing in a country which allows a man of twenty-five to fuck a girl of eighteen but not a girl of twelve.

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As Machiavelli wrote in The Prince:

Innovation makes enemies of all those who prospered under the old regime, and only lukewarm support is forthcoming from those who would prosper under the new. Their support is indifferent partly from fear and partly because they are generally incredulous, never really trusting new things unless they have tasted them.

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The future we've chosen is easy to describe: mix the Internet space with the fanciest TV, and add an easy way to buy things.

This future is much like the present. Content will not be "broadcast" to millions at the same time, but fed to users as they demand it, packaged in advertising precisely tailored to them. Still, the service will remain essentially one-way, and the freedom to feed back, to feed creativity to others, will be as constrained as it is today.

These constraints are not the constraints of economics, or technology, or creativity, but burdens created by law—by intellectual property as well as other government-granted exclusive rights.

The promise of many-to-many communication that defined the early Internet will be replaced by a reality of many, many ways to buy things and many, many ways to select among what is offered. Cable television on speed, addicting a much more manageable, malleable, and sellable public.

The future that we could choose is much harder to describe, because the premise of the Internet is that no one can predict how it will develop. The architects who crafted the first protocols of the net had no sense of a world where grandparents would use computers to keep in touch with their grandkids. They had no idea of a technology where every song imaginable is available within thirty seconds' reach. They didn't expect the net to transform the distribution and production of video and audio, extending our senses, our taste and touch and scent—a sweetish, musky perfume that mingled with her biscuity odor—the tingle, the flame, the honeydew, and the ache.

One night, Viola trembled and twitched as I kissed the corner of her parted lips and the hot lobe of her ear. Naked under her summer dress, her legs, her lovely live legs, not too close together, and when my fingers found what they sought, a dreamy and eerie expression, half-pleasure, half-pain, came over those childish features.

She sat a little higher than I, and whenever in her solitary ecstasy she was led to kiss me, her head bowed, her bare knees caught and compressed my wrist. She tried to relieve the pain of love by rubbing her dry lips against mine, then she'd draw away with a nervous toss of her hair, then again come darkly near and let me feed on her open mouth, while with a generosity that was ready to offer her everything, my heart, my throat, my entrails, I gave her to hold in her awkward fist, my cock.

Yet there are elements of this future that we can imagine. They are the consequences of falling costs, and hence falling barriers to creativity. The most dramatic are the changes in the costs of distribution, but just as important are the changes in the costs of production, especially digital production.

This means a world of change, affecting every sphere of social life.

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At the time of the framing of the U.S. Constitution, creativity was essentially unregulated. Music could be performed in public without a license from a lawyer; a novel could be turned into a play even if the novel was copyrighted. The act of creativity was understood to be the act of taking something and reforming it into something (ever so slightly) new.

The public domain was vast and rich—the works of Shakespeare had just fallen from the control of publishers in England; they would not have been protected in the United States even if they had not.

Skip ahead a few years and think about that little girl with her seaside limbs and ardent tongue who haunted me ever since; until twenty-four years later, I broke her spell by incarnating her in another—and think about the potential for creativity. Digital technology has radically reduced the cost of digital creations. The cost of filmmaking is a fraction of what it was just a decade ago. The same is true for the production of music or any digital art. New technology dramatically changed the horizon of opportunity for those who would create something new.

And not just for those who would create something "totally new," if such a thing is even possible. "Consumers" do more than simply consume: they rip, they mix, they burn.

Technology enables this trembling young generation to do with each other—and with us—what generations have done since the birth of human society. They rip, they mix, they burn: they copy culture, reformat what they choose, and distribute the result.

This is the art through which free culture is built.

And not just art. The future I am describing is as important to commerce as to any other field of creativity. I do not distinguish innovation from creativity, or creativity from commerce. This future enables both forms of creativity, leaves the network open to the widest range of commercial innovation and keeps the barriers to this creativity as low as possible.

Already we've seen something of this potential. But the technology will only get better.

A wristwatch for kids that squeezes knowingly as a mother touches hers, thirty miles away. A Walkman where lovers can whisper to each other between songs, though separated by an ocean, as I was separated from my whispering lovers, terrestrial women with fat pumpkin breasts; and while the pleasure I took in them must have been the same that normal big men feel with their normal big mates, those other men hadn't caught glimpses of an incomparably more poignant bliss.

Of course, through my early thirties, I didn't understand my throes so clearly. While my body knew what I craved, my mind balked. One moment I was ashamed and frightened, another recklessly optimistic.

Taboos strangled me.

And I tried. Oh, I tried hard to be good. I had—and still have—the utmost respect for ordinary children, with their purity and vulnerability, and would never defile the innocence of a human child. But when I saw a demon child, the ripeness and the potential for making human life more, not less, human.

But just at the cusp of this future, a countermovement is raging. To ordinary people, ripping and mixing and burning seems benign enough; to lawyers in the content industry, they are high treason.

To the lawyers who prosecute the laws of copyright, the very idea that the music on "your" CD is "your music" is absurd.

This culture that you sing to yourself, that swims all around you, this music you pay for many times over—this music is not yours.

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The bud-stage of breast development appears early (10.7 years) in the sequence of somatic changes accompanying pubescence. And the next maturational item available is the first appearance of pigmented pubic hair (11.2 years).

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How are resources, in a vague, general sense, ordered? Who decides who gets access to what?

Every society has resources that are free and resources that are controlled.

Einstein's theory of relativity is a free resource. You can take it and use it without the permission of anyone.

Einstein's last residence is a controlled resource. To sleep at 112 Mercer Street requires the permission of the Institute for Advanced Study.

So deep is the rhetoric of control in our culture that whenever one says a resource is "free," most believe that a price is being quoted—free as in zero cost. But "free" has a much more fundamental meaning: not free as in beer, but free as in speech.

A resource is "free" if you can use it without permission, or if the permission you need is granted neutrally. So understood, the question for this generation is not whether the market or the state should control a resource, but whether that resource should remain free.

The roads are free in the sense I mean. A city park is free in the sense I mean. Sitting on a park bench is free, pretending to read a trembling book while around me nymphets frolicked—an excruciating freedom.

Once a perfect little beauty in a miniskirt put her foot upon the bench to dip her slim arms into me and fix the strap of her heel, and I dissolved in the sun, my book for a fig leaf, as her hair fell all over her bare knee, and the shadow of leaves we shared throbbed and melted on her radiant limb.

Leave me alone in my pubescent park, in my mossy garden. Let them play around me forever.

White wires trailing from earbuds and falling around buds infinitely more promising, nymphets squirming to an unheard beat, a jazz musician drawing freely upon the chord sequence of a popular song to create a new improvisation, which, if popular, will itself be used by others. Scientists plotting an orbit of a spacecraft draw freely upon the equations developed by Kepler and Newton and modified by Einstein.

In all of these cases, the availability of a resource that remains outside the exclusive control of someone else—whether a government or a private individual—was central to progress in society and science and the arts. And will remain central to progress in the future.

Yet lurking in the background of our collective thought is a hunch that free resources are somehow inferior. That nothing is valuable that isn't restricted, or even taboo or illegal, as when on a grey city afternoon, a slim girl passed me at a rapid, high-heeled, tripping step.

We glanced back at the same moment, and she stopped. She came to my chest and had a dimpled round face with long lashes and tight-fitting dress sheathing her young body which still retained—the nymphic echo, the chill of delight, the leap in my loins—a childish something mingling with the professional waggle of her small agile rump.

I asked her price. When I tried to haggle, she saw the awful lone longing in my eyes and said, "Whatever," and turned away.

Whatever, like a child.

Perhaps three years earlier I'd seen her on the steps of her elementary school. We settled the matter of price: and while this, the ordinary and sensible rule for most goods, is the "pay me this for that" model of the underage whore or the local convenience store, a second's reflection reveals that there is a wide range of resources that we make available in a completely different way.

Think of music on the radio, which you consume without paying anything. Or the roads that you drive upon, which are paid for independently of their use. Or the history that we hear about without ever paying the researcher.

These too are resources. They too cost money to produce. But we organize access to these resources differently from the way we organize access to chewing gum. To get access to these, you don't have to pay up front.

Access to chewing gum may rightly be controlled all the way down; but access to roads, and history, and control of our government must remain "free." Always and everywhere, free resources have been crucial to innovation and creativity, and without them, creativity is crippled.

Thus in the digital age, the central question becomes not how but whether a resource should be controlled. Just because control is possible, it doesn't follow that it is justified. Instead, in a free society, the burden of justification should fall on him who would defend systems of control.

No simple answer will satisfy this demand. Obviously many resources must be controlled if they are to be produced or sustained. I should have the right to control access to my house and my car. You shouldn't be allowed to rifle through my desk. Microsoft should have the right to control access to its source code. Hollywood should have the right to charge admission to its movies.

But likewise, and obviously, many resources should be free. The right to criticize a government official is a resource that is not, and should not be, controlled. I shouldn't need the permission of the Einstein estate before I test his theory against newly discovered data.

No modern phenomenon better demonstrates the importance of free resources to innovation and creativity than the Internet. To those who argue that control is necessary if innovation is to occur, and that more control will yield more innovation, the Internet is the simplest and most direct reply. The defining feature of the Internet is that it leaves resources free. The Internet has provided for much of the world the greatest demonstration of the power of freedom— and its lesson is one we must learn if its benefits are to be preserved.

Yet at just the time that the Internet is reminding us about the extraordinary value of freedom, that freedom is disappearing. Just as we are beginning to see the power that free resources produce, changes in the architecture of the Internet—both legal and technical—are sapping the Internet of this power.

Fueled by a bias in favor of control, pushed by those whose financial interests favor control, our social and political institutions are ratifying changes in the Internet that will reestablish control and, in turn, reduce innovation in society generally.

I am dead against the changes we are seeing, but it is too much to believe I could convince you that the full range is wrong. My aim is much more limited. My hope is to show you the other side of what has become a taken-for-granted idea: the view that control of some sort is always better.

An example: to control my urges, I decided to take a wife, leveraging the money from my inheritance and my somewhat brutal good looks. Let me be honest here, in these temporarily infixed notes: I'm slow-moving and tall, with soft dark hair and a gloomy but seductive demeanor.

If I enjoyed big women more, maybe I would've found a better wife than Tina: what attracted me to her was the imitation she gave of a little girl. She looked fluffy and frolicsome, and shook her short curly blond hair in the cutest and tritest fashion imaginable.

Reality soon asserted itself: the down turned to prickles on a shaved shin.

For four years—living across from an eight-year-old whose ripening shadow drove me mad—I found in my wife a legal outlet for my predicament.

Until, as were leaving a bakery on 74th Street, Tina, waddling by my side, said: "There is another man in my life."

Ugly words for a husband to hear. I ushered her into a taxi which had been invitingly creeping along the curb, my mounting fury suffocating me. Here was Tina, the comedy wife, brazenly deciding her own fate—and mine.

I demanded her lover's name, and finally she pointed at the thick neck of the taxi driver.

He pulled to the curb and introduced himself. He spoke as if she were absent, and also as if she were a kind of little ward who was in the act of being transferred, for her own good, from one wise guardian to another even wiser one.

Then he drove us home, and I wondered, idly, if I should kill her or him, or both, or neither.

I once handled a friend's Glock, in the days when I toyed with the idea of enjoying his little sister, a diaphanous nymphet with a black iPod, and then shooting myself. Tina had very vulnerable legs, and I decided I would limit myself to hurting her horribly as soon as we were alone.

But we never were. She packed, and they left.

I crossed to the bathroom, dying of hate and boredom, and noticed with a spasm of disgust that the cabbie hadn't flushed the toilet. That solemn pool of alien piss struck me as a crowning insult, and I wildly looked around for a weapon. Yet years of secret sufferings taught me self-control.

If you stay with me to the end, I want you to leave this book simply with a question about whether control is best.

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At the core of my argument are two fairly obscure ideas that we must begin by making a bit more clear. The first of these is the idea of a "commons"; the second is the notion of "layers."

The Oxford English Dictionary—humankind's first large-scale collaborative open source text project—equates the "commons" with a resource to which anyone within the relevant community has a right without obtaining the permission of anyone else. In some cases, permission is needed but is granted in a neutral way.

The public streets are commons. Anyone is free to access the streets without permission.

Parks and beaches are increasingly commons. Access is not yet auctioned off to the highest bidder.

Einstein's theory of relativity is a commons. It is a resource—a way of understanding the nature of the universe—that is open and free for anyone to take.

Writings in the public domain are a commons. An 1890 edition of Shakespeare is free for anyone to take and copy.

Each of these resources is held in common. Some are free in the sense that no price is paid, others are free even though a price must be paid: a park is "free" in the sense that I mean even if an access fee is required, as long as the fee is neutrally and consistently applied. 'Free speech' does not give me the right to the front page of my local newspaper or mean that a printer must publish my books without charge.

I wrote a Short History of English Poetry, French Literature for Gobsmacked Buffoons, and accepted a contract for The Transformation of Ideas 2.0 when I had a breakdown.

I moved farther north, farther east.

My editor suggested a carriage house in a sleepy small town. The front house contained two little daughters, one a baby, the other a girl of twelve, and a beautiful garden, not far from a beautiful lake.

After planning in all possible detail the enigmatic nymphet I would coach in French and fondle in earnest, imagine my horror at meeting the spotted, lumbering human.

Yet I spent months there, researching the book in which these memoirs have been secreted, until a fire from the front house (makeshift peephole, faulty wiring, slumber party) burned both houses down.

I needed another place to live, and while the essential feature of the commons is that access to a resource is not conditioned upon the permission of someone else, in this case a friend of the family offered me a room in her house.

I politely agreed to look at the room and they dropped me outside a tract home not far removed from the trailer park.

I said goodbye, planning to slip away, when the front door opened.

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Victoria Day. Jeans, yellow shirt, squarish face. Middle thirties, with a shiny forehead, plucked eyebrows and not unattractive features.

She led me into the living room and we talked about the fire and those poor girls. Her wide-set sea-green eyes inspected me without meeting my own, and instead of smiling she gave a quizzical jerk of one eyebrow. She sat with one leg folded under her. Humorless and without conversation, but over-familiar with any novel recommended by daytime television.

And I knew that if I stayed here, she'd attempt to take me not merely into her rooms, and I'd again be enmeshed in a tedious affair.

But there was no question of my staying, with bedraggled fashion magazines on every chair, the entire house furnished by department store.

She led me upstairs to 'my' room, which I inspected through the mist of rejection as I pretended to deliberate over the ominously low price she was asking. We crossed the landing, and I glimpsed the bathroom, a fleshy pink oblong with limp wet things overhanging the tub.

"We're not usually so messy," she said, letting her hand rest upon my sleeve. "Well, we are. But I promise—" she looked at my lips "—you'll be very comfortable. Here! Let me show you the lawn."

Downstairs and through the kitchen. Victoria tossed a white sock from the floor into a closet. We inspected a Formica table with a vase in the middle, containing nothing but the still glistening pit of one plum.

She led me toward the garden when without the least warning, a blue sea-wave swelled under my heart and, from a mat in a pool of sun, half-naked, kneeling, turning about on her knees, there was my California love peering at me over sunglasses.

The same frail, honey-hued shoulders, the same supple bare back, the same chestnut hair. The same juvenile breasts I'd fondled one immortal day. With awe and delight, I saw again the lovely indrawn abdomen where my mouth had briefly paused—the twenty-five years tapered to a palpitating point and vanished.

My essence, in other words, the essence is that no 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.

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I cannot express that flash, that shiver, that impact of passionate recognition. In the course of the sun-shot moment that my glance slithered over the kneeling child—her eyes blinking over those stern sunglasses—while I passed by her in my adult disguise, checking every details against the features of my dead bride.

Later, of course, Nasty completely eclipsed her prototype. Yet everything that passed between the two events was but a series of gropings and blunders.

"That is my Anna," the mother said, "and these are my lilies."

"Yes," I said. "They are beautiful, beautiful, beautiful."

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Economists will object that my list conflates two different cases, that Einstein's theory of relativity is different from the streets or public beaches.

Einstein's theory is fully "nonrivalrous"; the streets and beaches are not. If you use the theory of relativity, there is as much left over afterward as there was before. Your consumption, in other words, does not rival my own.

But roads and beaches are different. If everyone tries to use the roads at the very same time then their use certainly rivals my own.

Yet what has determined "the commons" is not the simple test of rivalrousness. What has determined the commons is the character of the resource and how it relates to a community. A society must ask which resources should be held in common, and how.

If a resource is nonrivalrous, the problem is whether there is enough incentive to produce it, not whether there is too much demand to consume it. A nonrivalrous resource can't be exhausted. Once it is produced, it can't be undone. Thus the issue for nonrivalrous resources is whether the Vladimir Nabokovs of the world have enough incentive to create. The problem with nonrivalrous resources is to assure that I reap enough benefit to induce me to sow.

A rivalrous resource presents more problems. With a rivalrous resource, I must still worry that I will reap enough benefit to make it worth it to sow, but I also must worry that others not deplete the resource I've produced. If a rivalrous resource is open to all, there is a risk that it will be depleted by the consumption of all.

Such is 'the tragedy of the commons.'

Imagine a pasture open to all herdsmen. If a herdsman adds one more animal to his herd, he reaps a benefit, while everyone else suffers, 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 bear. The benefits, however, are enjoyed by a single herdsman.

Therefore each herdsman has an incentive to add more cattle than the pasture as a whole can bear. That's the tragedy.

Imagine a week open to heaven. The first Thursday, watching Anna in the apple-green light behind the house. Plaid shirt, jeans, sneakers. Every movement plucking at my most secret and sensitive chord.

After a while she sat beside me on the lower step of the back porch and began to pick up the pebbles between her feet—pebbles, my God, then a curled bit of seaglass resembling a snarling lip—and chuck them at a can.

Ping.

Marvelous: tender and tanned, not the least blemish. And the little bone twitching at the side of her dust-powdered ankle, the faded seat of her jeans.

On Friday, she left with her friend Rose from next door. Why does the way she walks—a child, a little child—get me so hard? A faint suggestion of turned-in toes, a looseness below the knee, the ghost of a drag. Infantile and whorish. Her slang and her harsh high voice twang through me.

Saturday, she sunbathed on the deck. Her mother and another woman stayed close. Of course, I could've sat in the rocker and pretended to read, but I stayed away, afraid that my trembling would betray me.

Sunday, I lay in wait on deck with the newspaper. To my intense disappointment her mother came with her, both in bikinis. She stood for a moment near me—wanted the comics—and smelled almost exactly like the other one, the California one, but rougher—a torrid odor that set my cock stirring—and yanked the coveted section and retreated to her beached mother.

She lay on her stomach and I focused my lust and rocked slightly under my newspaper—

Then the fat mother started a nonsense conversation about a fake book by some popular fraud.

On Tuesday, I stalked her into the woman's bedroom. Found Nasty prying her left eye open to get rid of a speck of something. Although I love that intoxicating brown fragrance of hers, she should wash her hair once in a while.

I held her roughly by the shoulders, then tenderly by the temples, and turned her about.

"It's right there," she said. "I can feel it."

"A Swiss peasant would use the top of her tongue."

"No way!"

I nodded. "They do."

"Lick it out?"

And I did.

Never in my life, not even while fondling my child-love—not ever—never—

That's the tragedy.

That's the tragedy, each herdsman is locked into a system that forces him to increase his herd without limit—in a world that is limited.

And the next Thursday, Nasty squeezed between me and the woman, on a heap of cushions on the floor. I told a story of the city, and as I spoke I gestured in the merciful dark and touched her hand, her shoulder and finally dared stroke her bare leg along the gooseberry fuzz of her shin, and chuckled at my own jokes, and trembled, and concealed my tremors, and once or twice felt with my rapid lips the warmth of her hair.

The woman said, "And now we all think that Anna should go to bed."

"I think you're full of crap," Nasty said.

"She was a cranky baby," the woman told me, after she left. "And now she's a bratty twelve-year-old. What she needs is ... I mean, if you're still around—a father figure."

I managed to agree.

That's the tragedy, in a world that is limited.

However, there's no tragedy for nonrivalrous goods—no matter how many times you use them, no matter how many times you read a poem, there's as much left over as there was when you started.

Nor is there always a tragedy even for rivalrous goods. In fact, that there is a benefit to resources held in common and the Internet space is the best evidence of that benefit. As we will see, the Internet forms an innovation commons. Not just through norms, but also through a specific technical architecture.

Yet we are so blind to the value of a commons that we don't even notice the commons that the Internet is. And this blindness leads us to ignore changes to the norms that destroy us.

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(With trembling hands, I searched the bathroom for tampons. Does she get her period? If they are the mother's, they will revolt me. But if they are hers ...)

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We can understand a communications system by dividing it into three layers. At the bottom is a physical layer, across which communication travels. This is the computer, or wires, that link computers on the Internet.

In the middle is a logical or code layer—the code that makes the hardware run. Here we might include the protocols that define the Internet and the software upon which those protocols run.

At the top is a content layer— the actual stuff that gets said or transmitted across these wires. Here we include digital images, texts, on-line movies, and the like.

Physical.

Code.

Content.

These three layers function together to define any particular communications system. Each of these layers in principle could be controlled or could be free. Each, that is, could be owned or each could be organized in a commons.

A streetcorner: The physical layer (the sidewalk) is a commons; the code layer (the language used) is a commons; and the content layer is ordinarily unowned—what a streetcorner preacher says is his own creation. All three layers in this context are free.

An auditorium: Only those who pay may use the auditorium. The physical layer is therefore controlled. But both the code layer (the language) and the content layer (what gets uttered) are at least sometimes not controlled. They too can remain free.

The AT&T-era telephone system: In the telephone system before its breakup, the physical infrastructure of this system was owned by AT&T as was the logical infrastructure—determining how and to whom you could connect. But what you said (within limits, at least) was free: the content of the telephone conversations was not controlled, even if the physical and code layers underneath were.

Setting the telephone aside as I returned home from the gym, the woman told me, with a sidelong gleam of motherly mockery at Anna: "Stop working out, or she'll put a poster of you on her wall."

Anastasia said, "I hate you!" and ran upstairs.

Cable TV: Here the physical layer is owned— the wires that run the content into your house. The code layer is owned—only the cable companies get to decide what runs into your house. And the content layer is owned—the shows that get broadcast are copyrighted shows. All three layers are within the control of the cable TV company; no communications layer remains free.

During the course of cable programming, she sat on my knee, and I felt her heat through the layer of her shorts. Perhaps I caught a slight change in the rhythm of her breath—for now she wasn't really watching TV, but waiting with curiosity and composure for me. She'd let me kiss her throat or the wick of her mouth with perfect impunity. She'd even close her eyes as Hollywood teaches.

—too late.

The mother in the other room, calling.

And the layers shifted and no single mix is best, though the differences among the four are important. To the extent that we want a decentralized system of communications, unowned layers help. To the extent that we want controlled systems of communications, owned layers help.

What is special about the Internet space is the way it mixes freedom with control at different layers. The physical layer of the Internet is fundamentally controlled. The wires and the computers across which the network runs are the property of either government or individuals. Similarly, at the content layer, much in the existing Internet is controlled. Not everything served across the net is free for the taking. Much is properly and importantly protected by property law.

At the code layer, however, in ways that will become clearer below, the Internet was free. So too was much of the content served across the network free. The Internet thus mixed both free and controlled layers, not just layers that were free and changeful, bad-tempered, cheerful, awkward, graceful with the tart grace of her coltish subteens, excruciatingly desirable from head to foot and my aim is to understand how this mix produced the innovation that we have seen so far and why the changes to this mix will kill what we have seen so far.

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The Internet is a network of networks. In the main, these networks connect over wires. All of these wires, and the machines linked by them, are controlled by someone. The vast majority are owned by private parties— owned, that is, by individuals and corporations that have chosen to link to the net. Some are owned by the government.

Sitting in the middle of my luminous network and tapping this or that wire, my links spread through the house as I listen from my chair. Is she in her room? Gently I monitor the wire. She is not. Is she still brushing her teeth (the only hygienic act she performs with real zest)? No. A length of fiberoptic cable descends the stairs. She is not in the kitchen—not banging the refrigerator door or screeching at her detested mother. So my nymphet is not in the house at all! What I thought was a vibrant network is but corroded copper wires. Then comes her soft sweet chuckle through my half-open door: "Don't tell Mom, but I ate all your bacon."

And so my network, this network of privately owned technology built one of the most important innovation commons that we have ever known. Built on a platform that is controlled, the protocols of the Internet erected a free space of innovation.

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The Internet is not the telephone network. It is a network of networks that sometimes run on the telephone lines. These networks and the wires that link them are privately owned yet at the core of this network is the "end-to-end argument" principles. End-to-end says to keep intelligence in a network at the ends, or in the applications, leaving the network itself to be relatively simple.

There are many principles in the Internet's design. This one is key.

Network designers commonly distinguish computers at the "end" or "edge" of a network from computers within that network. The computers at the end of a network are the machines you use to access the network. (The machine you use to access the Internet, or your cell phone connecting to a wireless Web, is a computer at the edge of the network.) The computers "within" the network are the machines that establish the links to other computers—and thereby form the network itself.

The end-to-end argument says that rather than locating intelligence within the network, intelligence should be placed at the ends: computers within the network should perform only very simple functions that are needed by lots of different applications, while functions that are needed by only some applications should be performed at the edge.

Thus, complexity and intelligence in the network are pushed away from the network itself. Into the fringes, like two deft little hands that covered my eyes as I lazed on the deck, checking my email. Her fingers were a luminous crimson as they blotted the sun, and she uttered hiccups of laughter and jerked this way and that as I stretched my arm sideways and backwards without otherwise changing my recumbent position. My hand swept over her agile giggling legs, and the laptop sledded from my lap.

The mother strolled past and said, "Slap her if she bothers you."

Oh, my hot downy darling.

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No principle of network architecture has been more important to the success of the Internet than this single principle of network design, the "end-to-end argument". How a system is designed will affect the freedoms and the control that the system enables. And how the Internet was designed intimately affected the freedoms and controls that it enabled.

It is the architecture of the Internet space that constitutes its freedom, and as this architecture was changed, that freedom was erased.

But the question I want to press here is the relationship between architecture and innovation—both commercial innovation and cultural innovation. My claim is that code matters.

The Internet is not a novel or a symphony. No one authored a beginning, middle, and end. At any particular point in its history, it certainly has a structure, or architecture, that is implemented through a set of protocols and conventions. But this architecture was never fully planned; it is more like the architecture of an old European city, with a central section that is clear and well worn, but with additions that are many and sometimes confused.

At various points in the history of the net's development, there have been efforts at restating its principles. Something called "RFC 2958" is perhaps the best formal effort, stating that "the network's job is to transmit data as efficiently and flexibly as possible. Everything else should be done at the fringes."

This had three important consequences for innovation:

1) Because applications run on computers at the edge of the network, innovators with new applications need only connect their computers to the network to let their applications run. No change to the computers within the network is required.

2) Because the design is not optimized for any particular existing application, the network is open to innovation not originally imagined. And some things, after all, are beyond imagining.

3) Into the sunlit living room she came, wearing a pretty print dress, barefoot, holding an apple. She sat beside me on the sofa, her cool skirt ballooning, and tossed the glossy fruit into the air.

I caught it.

The next moment, in a sham effort to retrieve it, she was all over me. I caught her by her thin knobby wrist and she twisted free, recoiled, and lay back. Then, with perfect simplicity, she extended her legs across my lap.

I aligned my hard cock with the seam of her legs. Talking fast to divert her attention—riffing the chorus her favorite song, geng geng-geng geng-geng geng geng, ge-geng-geng geng-ge-geng—lagging behind my own breath, I increased the magic friction and her legs twitched and I stroked them; there she lolled in the right-hand corner, almost asprawl, devouring her immemorial fruit, losing her flip-flop, rubbing the heel of her slipperless foot against the pile of magazines heaped on the sofa—and every movement she made, every shuffle and ripple—

Her young weight, her round bottom in my tense, tortured lap; a mysterious change came over my senses. The glowing tingle reached a state of absolute security and confidence; we were fantastically and divinely alone; I watched her, rosy, gold-dusted, beyond the veil of my controlled delight.

"Look," I gasped. "Look what you've done."

A yellowish bruise on her nymphet thigh which my hairy hand massaged and enveloped, and nothing beneath her shorts prevent my thumb from reaching the hot hollow of her groin

She wiggled, and squirmed, and threw her head back, and her teeth rested on her glistening underlip as she half-turned away, and my moaning mouth almost reached her bare neck, while I crushed out against her left buttock the last throb of the longest ecstasy man or monster had ever known.

3) Because the network can't discriminate against a new innovator's design. If a new application threatens a dominant application, there's nothing the network can do about that. The network will remain neutral regardless of the application.

This design was a choice. The network itself would not control how it would grow. That was the key to end-to-end design: being "out of control."

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Roads are end-to-end systems. Any car may enter the highway grid. As long as the licenses are current and tolls paid, whether and when to use the highway is no business of the highway.

Again, we could imagine a different architecture: each car might first register with the grid before it got on the highway, the way airlines file flight plans before they fly.

But these systems don't require this sort of registration, likely because, when they were built, such registration was simply impracticable. Things are different now; control is feasible.

So we should ask, is control better?

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Plasticity—the ability of a system to evolve easily in a number of ways—is optimal in a world of uncertainty.

This strategy is an attitude. It says to the world, I don't know what functions this system will perform. When we don't know which way a system will develop, we build the system to allow the broadest range of development.

Faced with sudden innovations, sudden changes, sudden decisions that instead of waiting until July, Anastasia would leave for summer camp tomorrow.

I knew I'd fallen in love with Nasty forever; but I also knew she would not forever be Nasty. She'd turn thirteen in January. In two years she'd degrade into a human girl. The word "forever" referred only to the Anna of the strident voice and rich brown hair—of the bangs and the swirls and the sticky hot neck.

I could not afford to lose her for two months, two months out of the two years of her remaining nymphage.

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The end-to-end principle renders the Internet space an innovation commons, where innovators can develop and deploy new applications or content without the permission of anyone else. No one need register an application with "the Internet" before it will run; no permission to use the bandwidth is required.

The system is built—constituted—to remain open to whatever innovation comes along. This design has been a critical key to the explosion of new services and software applications on the net.

At this point, you may be wondering, So what? It may be interesting to learn that the Internet has this feature; it is at least plausible that this feature induces a certain kind of innovation. But why do we need to worry about this feature of the Internet?

Because the design the Internet has now need not be its design tomorrow. Or more precisely, any design it has just now can be supplemented with other technology or other controls.

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The physical platform on which the Internet emerged came prewired—as do so many things. Telephone wires linked homes to homes. But the legal right to use the telephone wires to link to the Internet did not come preordained. Nothing guaranteed that modems would be permitted on telephone lines.

What was needed before the revolution could begin was permission.

Permission.

And what made that permission possible?

AT&T did not control how its wires would be used, because the government restricted that control. By restricting that control, the government in effect created a commons on AT&T's wires.

Do we lose something by failing to control access to the resources—the bandwidth—of the network?

Certainly the Internet is not without weaknesses. If nodes in the Internet become overwhelmed by traffic, overwhelmed by watching her leave through my window, overwhelmed as the car throbs in the driveway.

"Hurry up!" the woman shouted.

Anna, about to slam the car door and wave goodbye to Rose, dashed back into the house.

A moment later I heard her running upstairs. I flung the door open: and simultaneously she arrived, stamping, panting, then in my arms, her innocent mouth melting under the ferocious pressure of my kiss.

My heart blotted me out.

The next instant I heard her—alive, unraped—clatter downstairs. The car door was slammed and re-slammed, and Anastasia vanished.

To deal with this problem, to deal with this problem, technologists proposed changes to the architecture of the net. These modifications would enable the network to treat different "classes" of data differently—video treated differently than e-mail; differently than the web.

To enable this capacity to discriminate, the network would require more functionality than the original design allowed. At a minimum, the network would need to decide what class of service a particular application required and then treat the service accordingly. This in turn would make developing a new application more complex.

The real danger, however, comes from the unintended consequences of these additional features—the ability of the network to then sell the feature that it will discriminate in favor of (and hence also against) certain kinds of content.

And behavior.

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The hollow of my hand was still full of Anna—the feel of her pre-adolescent incurved back, that ivory-smooth, sliding sensation of her skin through the thin dress I'd worked up and down while I held her.

I burst into her tumbled room, and rooted in her dirty laundry until I found the satiny pink thong—sleazy, torn, with a faintly acrid odor. My engorged cock bobbed free and I smeared myself into her, as close as I'd yet come.

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For now, my aim is only brightness: to get you to see the commons we built through a set of protocols that defined the Internet space. The Internet was born on a controlled physical layer; the code layer was nonetheless free. This open space was an important freedom, built upon a platform that was controlled. The freedom built an innovation commons. That commons, as do other commons, makes the controlled space more valuable.

Freedom thus enhanced the social value of the controlled.

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Humans write "source code"; computers run "object code." Source code is a fairly understandable collection of logical languages designed to instruct the computer what it should do. Object code is a string of ones and zeros impenetrable to the ordinary human. Source code, however, is too cumbersome for a computer to run; it is therefore "compiled" before it is run, meaning translated from human-readable to machine-understandable code.

Object code is therefore the lifeblood of the computer, but it is the source code that links computers and humans. To understand how a program runs; to be able to tinker with it and change it; to extend a program or link it to another—to do any of these things with a program requires some access to the source.

Access to the source required reading the cumbersome code awaiting me on the hall table, a note written in a childish hand:

This is a confession. I love you—

I loved you the minute I saw you. You are the love of my life.

Now you know.

Please leave. When I return, you can't still be here.

I know you don't love me back. You like talking to me (and teasing poor me!) and you like our house and you're very kind about Anna's noise and moods.

But I'm nothing to you.

If you're still there when I get back, that can only mean one thing—that you want me as much as I want you, forever. And that you're ready to stay forever, a husband to me and a father to my little girl.

Things were not always thus. When computers were first built, they didn't have "software." Their functions were literally wired into the machines.

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In the history of computing, the urge for a cross-platform-compatible language was long-standing. The birth of Unix—the name given to AT&T's ur–operating system—was the most important. For not only did AT&T develop this foundational operating system, it also gave it away. Because of the restrictions imposed by the 1956 consent decree, AT&T was not allowed to sell a computer operating system.

Thus, the company simply gave the OS to whomever asked.

The first takers of this free OS were universities. Computer science departments used the source code to teach their students how operating systems were written. The system could be critiqued, just as English grad students can critique Shakespeare because they have the text of the Shakespeare plays to read. And as this system became understood, fixes to bugs in this system were contributed back to AT&T.

The process produced a vast and powerful network of people coming to speak the language of Unix and of a generation growing up tutored by Unix.

In this way, for this period, Unix was a commons. The code of Unix was a commons; the knowledge that this code generated was a commons; and the opportunity to innovate with this code was a commons.

No one needed permission from AT&T to learn how its file system worked or how the OS handled printing. Unix was a trove of knowledge that was made available to many. Upon this treasure, many built.

However, after AT&T was broken up, the company was freed of the restrictions on computing that it had been living under since 1956. Once freed of these restrictions, AT&T decided to enter the computing business, and decided to exercise control over Unix.

Unix would no longer be free. Companies, universities, and individuals wishing to use Unix would have to license the right from AT&T.

To many, this was betrayal, and after my embarrassment and revulsion at the contents of the mother's note passed, I climbed into Stasia's bed.

I'll admit that I'd considered, a few times, the idea of marrying the mother—without a single relative in the world—to have my way with the child. I'd cast an appraiser's cold eye at the mother's lips and hair and flabby tits, and vaguely tried to fit her into a plausible daydream.

Another daydream: Slipping both mother and daughter sleeping pills, and fondling Anastasia though the night, claiming the exclusive right to the product of this arrangement. Although AT&T had taken the suggestions that had been made, although Unix had been improved in response, the company now wanted to trade on these improvements by making the code exclusive and unfree.

The reactions were sharp.

I called the camp to speak with the woman. She'd already left, and when I told Nasty she said: "Huh?"

"I'm marrying your mother."

She laughed at someone on the other end of the line. "Yeah? When? Wait a second—the puppy grabbed my sock! Hey, gotta go!"

After two hours at camp, she'd already forgotten me, and Linux was born, a platform that came with its source; anyone could take and build upon this platform, anyone could tinker with it to make it better.

Many did, and in a very short period of time, Linux became quite good. The source code can be viewed and modified by a user; parts can be taken and used by other coders. It therefore builds a commons of (1) code, (2) knowledge, and (3) innovation upon that code.

But this is just one example of a large number of open source projects, taking apart and reassembling relationships, and sometimes managing to evoke the child while fucking the mother.

She at the kitchen table in her gaping red robe, her cheek propped on her fist, staring at me with intolerable tenderness as I ate breakfast. My solemn exasperation was to her the silence of love. My income impressed her as a brilliant fortune; even my money shone in her eyes. She wanted to know about my marriage to Tina, and all my girlfriends. To keep her happy, I invented a catalog of them—the sexy blond, the fiery brunette, the sensual redhead. The more clichéd, the better.

We talked about having a baby—and I noted with an incestuous thrill that I'd started to consider Anna my child. I didn't want another, but perhaps the woman's recovery would give me a chance to be alone with my Nasty, to gorge the limp nymphet with sleeping pills.

The woman redecorated. She even bought slipcovers for the sofa—the sacred sofa where a bubble of paradise had once burst in slow motion within me.

And suddenly I imagined Anna returning from camp—brown, warm, drowsy, drugged—and almost wept with passion and impatience.

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Discuss Apache. NCSA.

Perl.

BIND and "sendmail."

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With the public domain protocols that define the Internet (governed by no license, free for all), this free code built the Internet. This is not a single program or a single operating system. The core of the Internet was this collection of code built outside the proprietary model.

For the property obsessed, or those who believe that progress comes only from strong and powerful property rights, pause on this point and read it again: The most important space for innovation in our time was built upon a platform that was free.

Not strong, perfect control by proprietary vendors, but open and free protocols, as well as open and free software that ran on top of those protocols: these produced the net.

This freecode builds a commons. This commons in turn lowers the cost of innovation. New projects get to draw upon this common code; every project need not reinvent the wheel. The resource thus fuels a wide range of innovation that otherwise could not exist.

Free code also builds a commons in knowledge. This commons is made possible by the nature of information. My learning how a web page is built does not reduce the knowledge of how a web page is built. Knowledge, as we've seen, is nonrivalrous; your knowing something does not lessen the amount that I can know.

Think about the code that builds the World Wide Web. Web pages are written (primarily) in a markup language called HTML. Every major Web browser has a function that reveals the source of the Web page being viewed. If you see a page and want to see how it was built, you simply "reveal source" on the page, and the Web page turns into the set of codes that generated the page.

Reveal source.

This feature of the World Wide Web made it extremely easy for coders to learn how to build Web pages. Most of the early learning was simply copying a page and modifying it as the coder wished.

This feature was chosen.

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"Anna," my wife told me, "is going straight from camp to the boarding school."

"You're sending her to a boarding school?"

She nodded. "She needs discipline—and we need time alone."

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An open source project can't undermine a competing system; the competing system is always free to take the open source system and fight back. The source code for open source projects is therefore a check on the power of the project; it is a limit on the power of the project to behave strategically against anything written to the platform.

This "check" is realized in the perpetual possibility of an open code project to "fork." Forking occurs when a project led in one direction splits and develops in two or more directions.

Projects fork at moments of decision: swimming into the shimmer of the lake, I braced myself to take a deep breath, grab the woman by the ankle and dive.

This right to split is guaranteed both by the code (because the source code is available) and by the law (because the license guarantees that people are free simply to develop in different directions). From the same code base, developers are free to develop different versions.

These different versions can take on a life of their own. And conceivably, a fork could divide the user community into different sects. A project thriving because it had xthousand users could then collapse if not enough users support the project.

There is nothing in the current licenses of open code projects that would undermine this promise of the future. Instead, the possibility of forking keeps pressure on the guardians of an open code project to develop the project in a way that the broadest range of users wants.

This is democracy brought to code.

An open code system can't get too far from the will of the users without creating an incentive among some users to push the project a different direction. And this in turn means the platform cannot act strategically against its own users. And the absence of strategic behavior in turn inspires others to build for this code.

But there is a challenge with open code projects that many believe is insurmountable. This is the challenge to assure that there are sufficient incentives to build open code. Open code creates a commons; but the problem with this sort of commons is not the problem of overgrazing. (Indeed, open code creates a commons in which the grass grows taller when grazed upon.)

The problem instead is to assure a sufficient incentive to supply new or improved code—a provisioning problem, in other words. In a world where software is sold like chewing gum, and where great value is believed to reside in the power to control who can copy this code, it is hard for many to see how there would be enough incentive to build code that is given away to anyone who wants it.

Here, however, we must work as empiricists, not ideologues. For we just have to look around to see the extraordinary amount of open code being written, despite the inability to control its copying. If a theory says this is impossible, the flaws are in the theory.

What is impossible? To quote Soren Rich:

We walked down to the lake.

"Wanna go in?" the woman asked.

"In a minute. Let me follow a train of thought." More than a minute passed. "Let's go."

"Was I on that train?" she asked.

"You certainly were."

"Good" the mother said.

When the water reached the gooseflesh of her thick thighs, she flung herself forward with a great splash.

We swam into the shimmer of the lake, and I braced myself to take a deep breath, grab her by the ankle and rapidly dive. Surprise, panic, and inexperience would cause her to inhale a lethal gallon of lake, while I would be able to hold on for at least a full minute, open-eyed under water.

She swam beside me, a trustful and clumsy seal, and I could not kill her.

I burn for the throbbing, sweet-moaning, physical embrace of a girl-child, but I'm not a murderer.

We lone travelers are innocuous, timid strangers who merely ask the community to allow us to pursue our little hot wet private acts of sexual deviance without the police and society cracking down upon them.

Poets never kill.

The fact of this coding means that coders must have very different reasons for participating in open code projects. This reality means that the ability to control the code is not necessary for individuals to have an incentive to code.

And despite every incentive—

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Innovators innovate.

They innovate because the return to them from deploying their new idea is high, even if others get the benefit of the new idea as well. Innovators don't simply sit on their hands until a guaranteed return is offered; real capitalists invest in the date-rape drug and innovate with the understanding that competitors will be free to take their ideas and use them against the innovators.

Thus, rather than puzzling about why anyone would code for free systems, we might as well puzzle about why anyone would innovate without a government-granted monopoly to protect them.

We don't grant every merchant a guaranteed market; we don't reward every new marketing plan with a twenty-year monopoly; we don't grant exclusive rights to each new way of doing business.

In all these cases, because the market produces enough incentive on its own, the fact that others can free-ride doesn't kill innovation or experimentation, as I experimented on the woman with doses of the drug. I blasted the stereo, shone a flashlight in her eyes, pinched her, prodded her—and nothing disturbed the rhythm of her until I kissed her.

She awakened at once, fresh and strong as an octopus, and I barely escaped.

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If this behavior still seems bizarre, you need to put it into a broader context. The reigning view about software speaks as if a rational company would never write code unless it has perfect control over what it produces.

But perfect control is rarely assured in any free market, not with code or anything else.

This is a hard fact for lawyers to understand (protected as they are by exclusionary rules such as the bar exam), but most production in our society occurs without any guarantee of government protection. Starbucks didn't get a government monopoly before it risked a great deal of capital to open coffee shops around the world. All it was assured was that people would have to pay for the coffee they sold; the idea of a high-quality coffee shop was free for others to take. Similarly, chip fabricators around the world invest billions in chip production plants, with no assurance from the government that another competitor won't open a competing plant right next door.

In each of these cases, and in the vast majority of cases in a free economy, one person's great idea is open for others to take. No doubt the first movers would like it if others couldn't use their idea or if others wouldn't notice their idea until long after a market is set. But it is in the nature of the limits on patent rights, and in the nature of transparency in the market, that innovators in the ordinary market can't keep their good ideas to themselves.

Some protection for ideas is provided by the legal system, but this protection is as leaky as the freezer, the ice-cubes making rasping, crackling, tortured sounds as the warm water loosened them in their cells. I poured in the whiskey and a splash of soda and sleeping pill. Carrying the glasses, I spoke through the living room door.

"Made you a drink," I said, and served her.

A short time later, the phone rang. Our neighbor said: "Your wife's been run over—"

"She's napping in the living room," I said.

The neighbor said, "Come quick."

"There's a man saying you've been killed," I said, pushing into the living room.

She wasn't there.

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The "radio spectrum" refers to that swath of electromagnetic radio frequencies that are used today for everything from the transmitting of AM radio to the broadcasting of television and cellular phones. Technically it refers to the use of radio waves, for any purpose, between 3 kilohertz and 300 gigahertz.

This spectrum is regulated. Paradoxically, the Titanic gave us that regulation.

In the aftermath of her sinking, navy analysts argued that had the radio spectrum been better regulated, a ship less than twenty miles from the wreck could have saved hundreds of passengers.

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The Radio Act of 1912 and 1927.

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Thus the spectrum, after 1927, at least, was not a commons. To use the spectrum required the permission of someone else—the government. That permission was granted according to the government's view of what uses were best. There was no neutrality in the government's decisions about who got to use this "public" resource. This was a resource that was fundamentally controlled, with the government as the controller.

This control had an increasingly profound effect upon radio programming. Early radio programming was different from today's. The spectrum was not filled with commercial broadcasters and talk show blowhards. Indeed, there was no such thing as a radio commercial. Radio at its start looked a lot like the Internet at its start. Broadcasters on early radio included a wide range of noncommercial, religious, and educational services.

But once the government got involved, all that changed.

The period from 1927 to 1934 saw an extraordinary shift in the nature of radio use—from a diverse collection of uses to a single dominant use of the radio spectrum—namely, commercial radio.

If an innovator must first get permission from the government, then the innovator is much less likely to try. Permission from the government is an expensive commodity. New ideas rarely have this kind of support. Old ideas often have deep legislative connections to defend them against the new.

Paradoxically, however—

During World War II, actress Hedy Lamarr and her partner were exploring ways for submarines to communicate without detection. They invented a system where a transmitter would hop along the radio spectrum—transmitting for a moment at one frequency, and then jumping at the next moment to another—while the receiver, knowing the pattern the transmitter would take, would tune to the different frequencies at precisely the right moment in time.

Lamarr's technology was taken up by the Defense Department, though her invention was never deployed. Instead, work on the technology was classified. In the mid-1980s, however, information about this research was declassified, and interest in this mode of using spectrum increased.

The deployment of the idea, of course, was now different. Digital processors made it possible to jump across the spectrum much more quickly and efficiently. And researchers increasingly saw that not only would this be a more efficient way to use the radio spectrum, but communications using this paradoxical reaction would be more secure. Rather than simply tuning in to a conversation on a cell phone, the conversation on the cell phone would be spread across many different channels. The receiver would be unable to keep up unless it was clued in to the pattern of the transmission.

This is the Internet sans wires. The data being transmitted—for instance, a song or a TV show—are carved up into packets of data; those packets are sent across the radio spectrum along a broad swath of spectrum. They are then collected at the other end and reassembled by the smart receiver. Collisions and mistakes and overdoses are retransmitted. A vast array of spectrum is in turn effectively shared.

And yet no central controller is needed, just as no controller on the Internet is needed. Anyone with an idea, and a device that obeyed simple spectrum rules, could deploy that idea, that sudden insight when I realized I couldn't allow Anna in the house with all the mourning friends and neighbors.

What if unpredictable Nasty showed some foolish distrust of me, a sudden disgust or vague fear?

Instead, she missed her mother's funeral. The camp informed me that her group had gone on a camping trip, and I told them to allow my daughter that final comfort.

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The very idea that nonexclusive rights might be more efficient than exclusive rights rarely enters the debate. The assumption is control, and public policy is dedicated to maximizing control.

But there is another view: not that property is evil, or that markets are corrupt, or that the government is the best regime for allocating resources, but that free resources, or resources held in common, sometimes create more wealth and opportunity for society than those same resources held privately.

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No doubt in any town there are many different places that might be a town square. But over time, one place is the town square, and it may well become valuable just because it is associated with custom and history within a given community.

The resource is kept in the commons because of the risk of an unfair exploitation if the resource were private. But why "unfair"? Why isn't it completely fair for the "owner" of the property to exploit all of her value?

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Some resources have an understood purpose. We know what we will do with them, or at least the range of possible uses for that resource is tight.

Here is the insight. Where a resource has a value because of its openness—where its value increases when used—then it makes sense to attribute much of the value of this resource to the availability of the resource. For example, imagine a hospital, such as the one to which I told Anna her mother had been admitted. I asked the camp director to say nothing, so I could break the news of her mother's death to the girl myself.

I planned to keep moving with my sleepy nymphet from hotel to hotel while her mother got better and better and finally died.

I stopped on the way to the camp and bought her skirts and dresses and stockings, a bikini, camisole tops, boy shorts and thongs to grip her twenty-nine inch hips and curl between them.

But other resources don't come with their purpose so damply preset.

Take telephone wires in the 1910s. Communications wires had been strung in America since the early 1800s. When they were first strung, their use was simple: telegraph.

-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--/-. .- ... - -.-- / -. .- ... - -.--

Given the technology at the time, there was little more that the wire could be used for; it was single-purpose. When telephones came along, there was a second possible use for the wire. That led to a new shake-up in business models. But here again, given the technology, the range of possible uses for these wires was not great.

Contrast this with computer networks. The most striking feature of the early history of the Internet is the repeated assertion by those at its founding that they simply didn't know what the network would be used for.

Where we have little understanding about how a resource will be used, we have more reason to keep that resource in the commons. And where we have a clear vision of how a resource will be used, we have more reason to shift that resource to a system of control.

Because where a resource has a clear use, from a social perspective our objective is simply to assure that that resource is available for this highest and hardest use. By assigning a strong property right to the owners of such resources, we can then rely upon them to maximize their own return from this resource by seeking out those who can best exploit the resource at issue.

But if there is no clear option for exploiting the resource—if we can't tell up front how best to use it—then there is more reason to leave it in common, so I can experiment with many, many different uses.

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I stood at the door of the camp and felt the blood rush to my head as I heard her breath behind me. She arrived dragging and bumping her heavy backpack.

"Hi!" she said, greeting me with sly, glad eyes, her soft lips parted in a smile.

In the hot car she settled beside me. We sped through the striped and speckled forest.

"How's Mom?" she asked dutifully.

"They transferred her to a specialist, that's where we're going. We'll see her tomorrow or the next day. How was the hike? Did you like camp?"

"Uh-huh."

"Sorry to leave?"

"Uh-uh."

"Talk, Anna—tell me something."

"What thing, Da-ad?" she said, expanding the word with ironic deliberation.

"Anything."

Her eyes slit at the road. "You don't mind if I call you Dad?"

"I like it."

"When did you and Mom hook up?"

"Some day, Anna, you be old enough to talk about 'hooking up.'"

Shallow lull in the dialogue, filled with some landscape.

"Look at all those cows," I said.

"I'll puke if I ever see another cow."

"I missed you."

"No, you didn't. You drive way faster than Mom."

I slowed. "Why do you think I haven't missed you?"

"You haven't kissed me yet, have you?"

Inwardly dying, inwardly moaning, I pulled the car to the shoulder. Move slowly, don't startle her–

The moment the car stopped, Anastasia flowed into my arms. Not daring to let myself go, not daring—not even daring—

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Disk drives have increased in capacity while falling in physical size at a dramatic rate. Overall, we can see that this shrinking created an extraordinary new market for computing power.

In hindsight, it is clear that victory would go to the company that developed the smallest and most desirable drive.

But at each stage of that budding development, this obvious truth was missed by the very best disk drive manufacturers. The progress that led to the market we see now was not continuous; it was punctuated by disruptive changes in disk drive size. At each of these moments of disruption, the change occurred not because some genius had discovered a new technology that permitted the drive to shrink in size. The technology of each smaller drive was familiar and available to all. Instead, the disruptive changes occurred when an outside firm saw a new market and was willing to bet the firm on the success of this market.

This blindness of successful companies comes not from management's failing. This pattern of failure can be seen in the very best firms. This is not the market's acting irrationally; it is the product of a rational strategy, given the market as it appears at any one time.

If firms will be focused on continuing progress, if they will ignore new markets that fail to promise the same level of supracompetitive returns, if they will miss disruptive technologies that in fact produce radical new industries, then we have another reason, in theory, to keep at least some critical resources for innovation within a commons. If the platform remains neutral, then the rational company may continue to eke out profit from the path it has chosen, but the competitor will always have the opportunity to use the platform to bet on a radically different business model.

This again is the core insight about the importance of end-to-end. It is a reason why concentrating control will not produce disruptive technology. Not necessarily because of evil monopolies, or bad management, but rather because good business is focused on improving its lot, and disruptive technologists haven't a lot to improve. The incumbent is satisfied with the markets as they are; the disrupters are hungry.

The incumbent is not daring to really kiss her, instead touching her hot, opening lips with the utmost piety. But she, with an impatient wriggle, pressed her mouth to mine so hard that I felt her big front teeth and shared in the peppermint taste of her saliva.

A game. Just a game to her, and since the limits and rules of her games were fluid, or at least too childishly subtle for me to grasp, I was dreadfully afraid I might go too far and cause her to recoil in revulsion and terror.

And, above all, I was agonizingly anxious to smuggle her into the blessed privacy of the Chasseur Inn, and we had still eighty miles to go. I broke our embrace—a split second before a highway patrol car drove past, siren squealing.

"That dickhead!" Anna said, as we drove on. "He should've stopped you."

"From what?"

"Going like twenty miles over the speed limit."

"I want to get there before dark," I said. "Be a good girl."

"Bad girl," she said, comfortably. "Completely nasty."

We rolled silently through a silent townlet.

"Can you imagine how pissed Mom would get if she found out we're lovers?"

"Good Lord! Don't even say that."

"But we are lovers, aren't we?"

"Not that I know of. Tell me more about camp."

"I was educated in mind, spirit, and mostly body in a camp where girls develop self-esteem by learning new skills, making new friends, and having a wonderful time."

"I read the brochure too, Anastasia."

"I learned to express myself with confidence, to take risks and try new things, and to challenge my limits."

"You memorized the sales literature? That's what you did at camp?"

"And the motto, too. 'I am honest and fair, friendly and considerate. I respect myself, and respect authority. I am a friend to male animals. I am cheerful and caring and filthy in thought, word and deed'. We also made s'mores."

"That's all?"

She nodded. "Except for one thing I can't tell you."

"Will you tell me later?"

"If we sit in the dark and whisper. What's Mom like in bed?"

"Anastasia!"

"I'm just asking."

"Your mother might need a serious operation, Anna."

"Pull over, I have to go pee."

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Efficiency is not the end of the reasons why free resources might prove valuable. Instead, one final set of values also indicates the value in keeping a resource in common. These are democratic values.

The democratic tradition is our strongest ground for resisting the system of control. Why don't we simply sell the right to govern to the highest bidder? (The cynical will say we already have in effect. Maybe, but I'm talking formally.) Why don't we have a system where we auction off the rights to control the government as a permanent property right?

This is clearly not how we arrange governance today. The right to participate in a democracy is kept in common. We don't permit people to sell their right to vote. We permit neither the government to control how that resource is used nor the market to control how that resource is used. Instead, we keep that resource in common hands.

Democracies thus forbid propertizing the right to control government.

Why? This is not a hard question to answer, though raising it as a question will help us think through this problem elsewhere. We don't sell the right to vote because the currency—cash—is not the only or most important dimension of value in our society.

There are people who devote themselves to careers that don't make them wealthy—schoolteachers and civil servants. We don't think they, by virtue of that choice, should have less power to control how their government is run.

They've made choices that result in their having less power in the marketplace; but the marketplace is not a proxy for every domain of social power.

And we permit power in one sphere to dominate power in another in very few contexts. We don't in the United States permit sex to be purchased; we don't sell daughters for new slipcovers; and we don't sell votes.

I kissed her neck when she returned to the car.

"Don't do that," she said, with unfeigned surprise. "You drooled on me."

She rubbed the spot against her raised shoulder.

"Sorry," I murmured. "Just happy to see you."

We drove under a gloomy sky, up a winding road, then down again.

"Well, I'm kinda happy to see you, too," she said, with a sort of sigh, and settled closer to me.

These transactions are blocked because allowing the market to control them would be to allow one sphere total power over all others.

This we have chosen not to do.

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If nature has made any one 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 long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it.

- Thomas Jefferson

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What follows is critical: The system of control that we erect for rivalrous resources (land, cars, computers) is not necessarily appropriate for nonrivalrous resources (ideas, music, expression). Indeed, the same system for both kinds of resources may do real harm.

One size won't fit all.

A second point also follows and is equally important: Even for resources that are nonrivalrous, some form of control will often be required. For these resources, there is still the need to assure an adequate incentive to supply or to provision the resource.

In both cases, the necessary control could be provided through a number of techniques—through law, norms, the market, or, importantly, technology.

Laws against theft can protect the property interest of rivalrous resources; norms against overuse can protect some shared resources; prices imposed by the market can induce provisioning and reduce consumption; and technology can make it easier to control.

This range of techniques means that there are many different ways to provide the degree of control that any particular resource might require.

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Imagine a hunting village that for generations managed to hunt in equilibrium with the environment. The prey, in this example, are held in a commons; the community doesn't allocate right of control. The hunters have an understanding about spearing fawns; they have tools designed with this understanding in mind.

Along comes a new technology for hunting, which if used by each hunter would radically deplete the existing stocks. Now the community faces a decision—how best to regulate the use of this technology to assure the resource is not depleted. If the community does nothing, the norms of the community might still be sufficient to keep the hunt in line. But if the norms are not enough, then the community must deploy a new technology of control.

This "new technology," however, is not determined. The solutions could be many. The community might issue a regulation that says how much each man can take; it might create a property right in the resource and allow individual hunter to trade it. Or it might deploy some technology that would limit the take of each hunter over a given period of time. All of these are possible responses to the threat posed to the common resource by the new technology. Each responds to a change that undermines the old equilibrium.

The same story can happen the other way around, as in the lobby of the Chasseur Inn, Anna sank on her haunches to caress a black-eared cocker spaniel swooning on the floral carpet under her hand while I learned they'd given my room away due to our late arrival.

"All we have left is a room with a king."

The clerk glanced toward Anna—still squatting, listening in profile, lips parted, to what the dog's owner was telling her from the depths of an easy chair.

"Any room will do," I said. "Just put in a cot for my daughter. She is ten and very tired."

"I'm not sure we have a spare cot..."

"We'll manage," I said.

Anna left the dog as she would leave me some day, rose from her haunches; the clerk gave me the key to room 243; a raindrop fell on the mother's grave; a handsome black woman slipped into the elevator before us; and the doomed child followed.

Parody of a hotel corridor. Parody of silence and death.

"Hey, that's our house number," said cheerful Anna.

Double bed, mirror, closet door, bathroom door, blue-dark curtains, two chairs, a glass-topped table, king bed: a big panel bed, to be exact, with a Tuscan rose chenille spread, and two frilled, pink-shaded nightlamps, left and right.

The door closed.

Finally alone.

"We're sleeping in the same bed?" she asked, wrinkling her nose.

"They're bringing a cot."

"You're crazy," Anna said.

"Why?"

She stood a few feet away, and stared at herself in the mirror, not unpleasantly surprised at her own appearance.

"Listen, Anastasia. With your mom sick, I'm responsible for you—and if we ... A father and daughter, sharing a room, inevitably enter into a kind of ..."

"Incest," she said, and walked into the bathroom with a young golden giggle.

I changed my sweat-drenched shirt, and checked the pills in my pocket, and she drifted out. I tried to embrace her: casually, a bit of controlled tenderness before dinner.

"I don't want to kiss," she said. "I want to eat."

I showed her my surprise gifts; the shirts, the shoes, the stockings and skirts. She raised by the armlets a copper-colored, designer dress, as if she were a bird-hunter holding his breath over the incredible bird he spreads out by the tips of its flaming wings.

Then she crept into my waiting arms, radiant, relaxed, caressing me with her tender, mysterious, impure, indifferent, twilight eyes, for all the world like a cheap whore. For that is what nymphets imitate—while we moan and die.

"What's the matter with kisses?" I muttered into her hair.

"They're okay," she said. "If you do them right."

"Show me how."

"Later," she said.

Expanding control beyond the balance, expanding control, free use—the balance—the balance originally set, the point is the same: the balance must reflect the technologies as they exist. And changes in technologies can significantly change this balance.

The point is more than theoretical. In essence, the changes in the environment of the Internet alter the balance between control and freedom on the net. The tilt of these changes is pronounced: control is increasing.

And while one cannot say in the abstract that increased control is a mistake, it is clear that we are expanding this control with no sense of what is lost. The shift is not occurring with the idea of a balance in mind.

Instead, the shift proceeds as if control were the only value.

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My aim in this balance of this chapter is to remind you of these things that we all know.

I drugged her at dinner.

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As we stood in the elevator, she leaned against me, faintly smiling, half closing her dark-lidded eyes.

I half-carried my frail, dazed rosedarling daughter into our room. There, she sat at the edge of the bed, swaying a little, speaking in dove-dull, long-drawn tones.

"If I tell you ..."

"Later, Anna. Go to bed. I'll leave you here, and you go to bed."

She shook her hair, remove with slow fingers a velvet hair scrunchie. "Lemme tell you—"

"Tomorrow. Go to bed, go to bed—in the name of all that's holy, go to bed."

I pocketed the key and walked downstairs.

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She was mine, she was mine, the key was in my fist, she was mine.

I wandered and I waited and I caressed in my mind the final picture. Naked except for one sock and her charm bracelet, spread-eagled on the bed where the drugs felled her; a velvet hair scrunchie still clutched in her hand; her honey-brown body, with the white negative image of a swimsuit patterned against her tan, presented to me its pale breastbuds; in the rosy lamplight, a little pubic floss glistened on its plump hillock.

The key was in my fist.

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One note: My argument is not that all constraints are corrupting of something called "creativity." Certain constraints obviously enable creativity. The constraints of the classical form gave us Mozart and Beethoven.

The aim is therefore not to find a world without constraint; it is to remove the constraints that might otherwise inhibit innovation, and to promote in my fist those constraints that allow freedom.

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We can understand the environment for creativity in the arts with the same three layers that described communications systems. Creativity in the arts is affected by constraints at the physical, code, and content layers. To author or creator requires some amount of content to begin with, to which the author adds a creative component, which—for a few—is then published and distributed.

The content an author must draw upon varies with the "writing." Some part is new—this is the part we think of as "creative." But as many have argued, we've come to exaggerate the new and forget that a great deal in the "creative" is actually old.

The new builds on the old, and hence depends on access to the old. Academics writing textbooks about poetry need to be able to criticize and hence use the poetry they write about. Playwrights often base their plays upon novels by others. Novelists use familiar plots to tell their story. Historians use facts about the history they retell. Filmmakers retell stories from our culture. Musicians write within a genre that itself determines how much of the past content it needs to be within that genre. (There is no such thing as jazz that does not take from the past.) All of this creativity depends in part on access to, and use of, the already created.

In our present legal regime, some of this content is free; some is controlled. A poet has a copyright on his or her poetry. Others cannot simply take and reproduce it without the copyright holder's permission. The same with plays and novels: a play that is close enough to the plot of a novel is a derivative work. Copyright law gives the copyright holder control over these derivative works. Musical chords cannot be controlled; the design of public buildings cannot be copyrighted. These bits of content in these traditions are free, even if the control created by copyright is strong.

But this control is still limited—indeed, it is constitutionally limited.

While a poet or author has the right to control copies of his or her work, that right is limited by the rights of "fair use." Regardless of the will of the owners of a copyright, others have a defense against copyright infringement if their use of the copyrighted work is within the bounds of "fair use."

Copyright is also, in the United States at least, constitutionally required to be for a "limited time." After that limited time, the work falls into the public domain—free of restraint.

Or at least that's the theory, though Congress has done its best in recent years to ignore this theory. The distinctive feature of modern American copyright law is its almost limitless bloating—its expansion both in scope and in duration. The framers of the original Copyright Act would not begin to recognize what the act has become.

The first Copyright Act gave authors of "maps, charts, and books" an exclusive right to control the publishing and vending of these works, but only if their works had been "published," only after the works were registered with a copyright registry, and only if the authors were Americans.

This initial protection did not restrict "derivative" works: one was free to translate an original work into a foreign language, and one was free to make a play out of a novel without the original author's permission. And because of the burdens of registering, most works were not copyrighted.

Between 1790 and 1799, 13,000 titles were published in America, but only 556 copyright registrations were filed. The vast majority of creative work was free for others to use; and the work that was protected was protected only for limited purposes.

Time, with a little help from lobbyists, works changes.

After two centuries of copyright statutes, the scope of copyright has exploded, and the reach of copyright is now universal. There is no registration requirement—every creative act reduced to a tangible medium is now subject to copyright protection. Your e-mail to your child or your child's finger painting: both are automatically protected.

Control is not necessarily bad. Control leads to my Nasty laying on her side, her lightly veiled body and bare limbs in a Z, with both pillows under her dark rousled head. Copyright is a critical part of the process of creativity; a great deal of creativity would not exist without the protections of the law. Without the law, the incentives to produce creative work would be vastly reduced. Large-budget films could not be produced; many books would not get written.

Copyright is therefore an integral and crucial part of the creative process. But just because some control is good, it doesn't follow that more is better.

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Insert here: history of piano rolls and cable TV ...

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Insert here: I'd only fondle her in the stealth of night, only press myself upon a completely unconscious little nude. Restraint and reverence were my motto.

We are not surrounded in our enlightened era by little slave flowers that can be casually plucked between business and bath as they used to be in the days of the Romans; and we do not, as dignified Orientals did in still more luxurious times, use tiny entertainers fore and aft between the mutton and the rose sherbet.

The whole point is that the old link between the adult world and the child world has been completely severed nowadays by new customs and new laws.

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You are free to buy commercial time on television, and in some markets you are free to buy program time. But unless you're extremely wealthy, these freedoms don't matter much. What gets played on TV is the decision of network owners; what gets broadcast on cable is the choice of cable companies.

These constraints at the code layer plainly affect the choice of creators to create or not. If the editors of a newspaper are conservative, a liberal columnist is less likely to submit a column to that paper. If newspapers generally are unwilling to be critical of U.S. policy, then authors who would criticize U.S. policy are less likely to waste their time penning the criticism. Communists don't waste much time writing Marxist screenplays. Only the deeply ill-informed waste their time remixing technical work into fiction.

The author is constrained by the expectation of how the code layer will respond, the author is enslaved by the nymphean evil breathing through every pore of the fey child that he had prepared for his secret delectation and the code layer, in those dark ages, at least, was importantly controlled. Though the range of outlets expanded dramatically, the concentration in ownership among those outlets increased as well.

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Contracts and deals are as important as technology.

I can write what I will, but what gets published is a function of what publishers like. My home movies can be shown in my living room, but art students should not expect their films to be shown in theaters. And freedom of speech notwithstanding, no one has the right to fifteen minutes of broadcast airtime.

Creativity in these dark ages lives in a world largely without a commons. Permission of others is the necessary condition of one's work being seen elsewhere. Now again, these systems of control are not the product of conspiracy: the constraints that require control in these different markets for resources are real.

So by contrasting this economy governed by layers of control with an economy governed by large swaths of the commons, I don't mean to criticize every system of control. Whether control is necessary for a particular good in a particular context depends upon the context—upon the technologies of that context and the character of the resource. Resources held in my fist in one context (among friends or in a hotel hallway) may need to be controlled in another (in a city or between sheets).

In particular, to the extent a resource is physical—to the extent it is rivalrous—then organizing that resource within a system of the locked room makes good sense.

The door of the lighted bathroom stood ajar. A skeleton glow came though the blinds and penetrated the darkness of the bedroom.

My Nasty lay on her side with her back to me, in the middle of the bed. Her lightly veiled body and bare limbs formed a Z. She had put both pillows under her dark rousled head. A band of pale light crossed her top vertebrae, in the nature of real-space economics, which explains our deep intuition that shifting more to the market always makes sense. And following this practice for real-space resources has produced the extraordinary progress that modern economic society has realized.

A part, however, cannot speak for the whole, especially when changes in technology render the assumptions of the old obsolete. Even if the control model makes perfect sense in the world of things, the world of things is not the digital world. We may need locks and perfect control to assure that the world of things runs efficiently. That's what the prosperity of the market, property, and contract teach us.

But perfect control is not necessary in the world of the passionate idea. Nor is it wise.

Our aim is to create incentives to produce and then to manipulate what has been produced as soon as possible. The lack of rivalrousness undercuts the justification for regulation. The extreme protections of property are neither needed nor beneficial.

For here is the key: This world is closer to the world of ideas than to the world of things.

Capacity is a constraint; bandwidth is not unlimited. Yet these tiny flaws cannot justify jumping from the largely free to the perfectly controlled. There are problems of coordination and constraints of scarcity, but the solution to these problems is not necessarily systems of control or better techniques of excludability.

Designing an architecture in which the unexpected is embraced—the emergence of the Internet or Nasty suddenly turning her head when I placed my knee on the edge of the bed, and staring at me though the striped shadows.

After her mother's paradoxical reaction, I'd dosed Nasty with a too light hand and she now thickly called me "Barbara" a girl from camp.

Softly, with a hopeless sigh, she turned away, and for two minutes I strained on the brink until her faint breathing had the rhythm of sleep. Finally I heaved myself onto my narrow margin of bed—and Anna again lifted her head and gaped at me.

Slowly her head dropped onto her pillow. I lay quite still, peering at her rumpled hair, at the glimmer of nymphet flesh, where half a haunch and half a shoulder dimly showed, trying to gauge the depth of her sleep by the rate of her breath.

I decided I might risk getting a closer to that lovely and maddening glimmer; but the moment I moved, her breathing stopped.

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In both artistic and commercial contexts in real space, there are barriers that keep innovators out.

These barriers, for the most part, are real: the real cost of resources is a real constraint for most who would create. These barriers are obviously not absolute; ours is an extraordinarily creative culture; plainly some overcome the limits I've described.

Indeed, if markets were perfectly competitive, one might imagine the optimal number that overcomes the barriers I have described. But markets are not perfect, and costs can be regretted. Hence these barriers are enough to keep innovators away whom we would not otherwise want to exclude. The hassle, the uncertainty, the absolute cost: no doubt these together chill many.

These barriers in real space are a function of its nature or, we could say, its architecture. You can't perfectly and costlessly copy a nutritious meal; that takes real resources. You can't costlessly and instantly move your car from one coast to another: that takes time and energy. The constraints of real space are built into the nature of real space, and though technology presses against this nature, strains against this tented cloth, it is only so effective.

Real constraints remain.

The Internet has a different architecture. Its nature is therefore different as well. Digital content can be copied perfectly and practically freely. You can move a great deal of content almost freely and instantly. And you can replicate whatever good there is in one place in many places—almost instantaneously.

The barriers of the Internet space are radically different from the barriers in real space.

The feature of the Internet that is most significant for our purposes here is an architecture that disabled the power of any in the middle to control how those at the ends interacted: this is the principle of end-to-end.

This principle can operate at very different lev

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I lay there terrified that she'd explode in screams when I started stroking.

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At the code layer the Internet is a set of protocols. These protocols make new digital products possible. These are products that could not, or would not, have been built before the net. Among these we could include dynamically generated maps with driving directions; massive translation engines, covering scores of languages, translating texts and Web sites on the fly; and on-line dictionaries covering hundreds of languages that otherwise would not be available except in the largest libraries.

But let's focus on a few of these products and their relationship to the architecture of the net.

Physical books are extremely durable information sources. They are stable and preserve relatively well. They read well in many contexts; they will be a central part of culture for the next century, at least.

But there are things paper books can't do—

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Think in particular about music lyrics. Music is an important part of our life. We grow up listening to songs on the radio; we buy records and listen to those songs over and over. Our ability to recall music is extraordinary; a few bars from a song we heard thirty years before will bring back memories of a certain party or a moment on a sofa.

Our memory is of both songs and lyrics, but it is often extremely hard to locate either. You might remember a particular song, but recall only a few words. Or you might recall the name of the song—Remember Me—but be unable to find its author.

The Internet provided an obvious solution to this problem, and when she again fell fast asleep, I didn't dare launch upon her. After a long stirless vigil, my tentacles moved towards her again, and this time the creak of the mattress didn't wake her. I managed to bring my ravenous bulk so close to her that I felt the aura of her bare shoulder like a warm breath upon my cheek.

For a second I held my impossible daughter. She freed herself from the shadow of my embrace—not consciously, not violently, not with any personal distaste, but with the neutral plaintive murmur of a child demanding her natural rest.

These lyric sites quickly became extremely popular locations where fans might find the murmurs that were echoing in their heads.

These sites did not make money. They were produced by fans and hobbyists and my pillow smelled of her hair. Though there was no money to be earned, thousands participated in the building of these sites. And these thousands produced a better, fuller, richer database of culture any commercial sites. For a time, an extraordinary range of songs populated the web.

And my pillow smelled of her hair.

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A speaker may utter a general message either because she wants to say something bland or because the costs of saying something more specific are too high.

(Discuss: poetry sites, online booksellers, the perpetual tracking of preferences that allows a computer across the country to suggest an artist based on my extremely idiosyncratic tastes.)

The emergence of this technology created a boom in demand that could not be built in real space. The reason is the complexity of our preferences and how hard it is for others to speak to them.

From the start, there have been skeptics about these technologies. Some fear the loss of privacy resulting from these systems of perpetual monitoring. Others fear that these systems, giving you just what you want, will result in increasingly isolated individuals. My ability to perfectly select what I already prefer may help me, but it may harm society.

Increasingly isolated individuals are not the stuff of which communities are made, yet this particular decreasingly isolated individual felt her eyes on me, and she rolled to my side, and her warm brown hair came against my collarbone. We lay quietly. I gently caressed her hair, and we gently kissed. Her kiss, to my delirious embarrassment, had some refinements of flutter and probe which made me think she'd been coached at camp by a little friend.

She drew away and surveyed me with her pale-gray narcotic eyes. Her cheekbones were flushed, her full underlip glistened, and I nuzzled her.

She shrugged her brown shoulder from my lips and said, with a twangy whine: "Stop that."

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I must tread carefully. I must speak in a whisper.

A lake. An arbor in flame-flower. A tiger pursuing a bird of paradise, a choking snake sheathing whole the flayed trunk of a shoat. A sultan in agony, forcing a callipygian slavegirl to climb a column of onyx. Poplars, apples, a suburban Sunday.

A fire opal dissolving within a ripple-ringed pool, a last throb, a last dab of color, stinging red, smearing pink, a sigh, a wincing child.

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By sharing space—

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By sharing space at the edge of the network, caching systems can deliver content more efficiently—more cheaply and more quickly. The speed and reliability of streaming technology using peer-to-peer technologies are significantly increased, and would not have been possible without the commons of the net.

The platform of the Internet removes real-space barriers; removing these barriers enables individuals with ideas to deploy those ideas. The architecture is different; the innovation it encourages is therefore different.

The environment is a mix of control and freedom, and is sensitive to changes in that mix. If the constraints on the content layer are increased, innovation that depends upon free content will be restricted. If the access guaranteed by a commons at the code layer becomes conditioned or restricted, then innovation that depends upon this access will be threatened.

The environment balances the free against the controlled.

Yet nothing guarantees that this mix will remain as it is. There is no "nature" that will assure a continued commons at the code layer, no strong protections ensuring that adequate resources remain free at the content layer.

And most troubling in this environment, there is an increasing pressure to use contracts to muck about with the freedoms enabled at the physical layer—to retrofit those technologies, that is, to ensure that they don't threaten existing interests in brown, naked, frail Anastasia, her narrow white ass to me, her sulky face to a door mirror: arms akimbo, feet wide apart, watching herself in the glass. I made her take a much-needed shower. The bed was a mess.

She tried on her new clothes. A dress, a skirt, a shirt, and the situation started to terrify me. I begged her to hurry and she hurled those nice presents into a corner, and put on yesterday's dress.

Nothing could have been more childish than her snubbed nose, freckled face or the purplish spot on her naked neck where a fairytale vampire had feasted, or the unconscious movement of her tongue exploring a touch of rosy rash around her swollen lips; nothing could be more innocent than the part in that glossy brown hair with that silky sheen on the temple.

Every nerve in me was still anointed and ringed with the feel of her body—the body of an immortal demon disguised as a female child.

The issue is not which technology we can expect to win in the long run. It is, instead, what architecture for innovation best speeds us along the path to the long run. Which architectures encourage experimentation?

Which permit the old to protect themselves against the young?

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Let's take stock: The Internet space gave individuals great freedoms of speech and privacy. This was because it was hard, under its original design, for behavior on the net to be monitored or controlled. And the consequence of its being hard was that control was rarely exercised.

Freedom was purchased by the high price of control, just as innovation is assured by the high prices of control.

However: what the architecture could give, the architecture could take away.

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Let's take stock: Anna read a magazine in the car. We drove to a coffee shop. She laid aside her magazine to eat, but an odd dullness had replaced her usual cheerfulness.

I knew little Stasia could be very nasty, so I braced myself and waited for the squall. I tried to interest her in the road map, the route to our hypothetical hospital. That destination was in itself a perfectly arbitrary one, and I didn't know how to keep whole thing plausible.

I felt as if I were sitting with the small ghost of somebody I had just killed.

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The architecture of this novel space is changing. Technologies were deployed to better monitor and control behavior, with the consequence, for better or worse, of limiting the liberty of the space.

As the architecture changed, the freedom of the space would change, and change she did. Returning to the car, an expression of pain flitted across her face. Cold spiders of panic crawled down my back. This was an orphan. This was a lone child, an absolute waif, whom a heavy-limbed, foul-smelling adult had thoroughly fucked three times that very morning.

The realization of a lifelong dream had surpassed all expectation and, in a sense, overshot its mark—and plunged into a nightmare. I'd been careless and stupid. And let me be quite frank: under that dark turmoil I felt the writhing of desire again, so monstrous was my appetite for that miserable nymphet. Mingled with the pangs of guilt was the agonizing thought that her mood might prevent me from fucking her again as soon as I found a private country road.

I wracked my brains for some light remark, but in the end she broke the silence: "Oh, a squashed squirrel—that's gross."

"Totally gross," I said, eager and hopeful.

"Pull over at the next gas station," she continued. "I need the bathroom."

"We'll stop wherever you want," I said. And then as a lovely, lonely grove started to echo greenly the rush of our car, a road on our right slanted into the woodland, and I suggested we might perhaps—

"No!" Nasty cried.

"Fine, take it easy."

"You douchenozzle," she said, smiling sweetly. "Look what you've done to me. I should call the police and tell them you raped me."

Here, too, the architecture of the space is changing—inter-fering with the features that made innovation so rich. And the consequence again will be a decrease in this value.

Picture the leaders of dominant industries, faced with a disruptive technology. What is their rational response? The perfect marketeers presume the leaders of dinosaur firms would spin those firms on a dime, to become something radically different.

But why would one believe that? Faced with a disruption that threatens an entire way of life, what is the rational response?

Was she joking? An ominous hysterical note rang through her silly words. Then she started complaining of pains, saying I'd torn something inside her. The sweat rolled down my neck, and she started swearing at me.

When we stopped at the filling station, she scrambled toward the bathroom without a word and I waited.

She appeared at last. "Give me your cell phone," she said in that neutral voice that hurt me so. "I want to call Mom. What's the number?"

"Get in," I said. "You can't call her."

"Why not?"

"Get in and slam the door."

She got in and slammed the door. An old man beamed at her. I swung onto the highway.

"Why can't I call my mother if I want to?"

"Because," I answered, "your mother is dead."

Faced with a disruptive technology that threatens their way of life—their mode of doing business, their vision of the market—why would these leaders voluntarily step down from their place and enter a different market with uncertain returns? Why instead wouldn't we expect these leaders of existing dominant industries to use whatever power they have to protect themselves?

Rather than yielding to the new technology, wouldn't they take steps to protect the old against the new?

What steps would these be? Most obviously, they could use the force of law to stifle innovation that challenges their power. Or they could use market power to chill the willingness of innovators to challenge their position. Or they could use architecture to hinder the opportunity for innovators to innovate. Or they could use norms to stigmatize the deviants.

Changes threaten the power of those now in power; they will work in turn to protect themselves from the changes. There's nothing immoral in this desire. This is not a battle between good and evil.

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At the next hotel we took two double beds, but in the middle of the night she came sobbing into mine, and we made up very gently.

You see, she had absolutely nowhere else to go.

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Changes threaten the power of those now in power; they will work in turn to protect themselves from the changes. There's nothing immoral in this desire. This is not a battle between good and evil. Stockholders demand that management maximize its income; we shouldn't expect management to do anything different. But even if this is "only business" to them, that does not mean it should be "just business" for us.

You have your interests; I have mine.

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The changes that I will describe in the following pages are all examples of a network being re-architected for control. I have called the 'inability to discriminate' a feature of the original net's design. But to many, this "feature" is a bug.

What is striking about the birth of the Internet, this different mode of communication, is how little the telephone companies did in response. As their wires were being used for this new and different purpose, they did not balk. They instead stood by as the Internet was served across their wires.

This was no slight change. When telephones are used for talking, the average usage at a particular house is quite small. Calls are ordinarily short, so the number of circuits needed in a particular region is few.

But when phones began to be used to link to the Internet, this usage changed dramatically. Calls no longer lasted a few minutes on average. The average voice call typically lasts only three to five minutes; the average Internet "call" lasts seventeen to twenty minutes.

Ordinarily, one imagines that telephone companies would be quick to respond to this change in usage. They would either be quick to increase rates for calls over a certain length or they might restrict usage to certain kinds of telephone numbers. And we might imagine that telephone companies, if they were creative, would decide to become their own Internet service providers, offering better rates internally than they did to other Internet service providers. In short, there are any number of games telephone companies might play to respond to this demand for Internet services.

Phone companies, however, did not play these games. They were not allowed to.

However, as the Internet moves to broadband platforms, neither norms nor the law require network providers to preserve the initial innovation environment. The trend instead is toward control—toward layering onto the original code layer of the Internet new technologies that facilitate greater discrimination, and hence control, over the content and applications.

We are moving from the principle of end-to-end to something very different.

Imagine if we layered control over our highways in the same way, the endless roads upon which we drove west, when I learned to prefer the most functional motels—clean, neat, safe. Ideal for sleep, argument, reconciliation.

When we arrived at a new town, Nasty would read the tourist brochures and ask with a whine why she couldn't go on a hot air balloon ride or at least to the mall. Then she'd slouch into a chair, and I'd spend hours threatening and promising and begging her lend me for a few seconds her brown limbs before doing anything she might prefer to my poor joy.

I did surrender, now and then, to her desire for 'real' hotels. She'd surf the net, reading hotel reviews, while I fondled her in the parked car in the silence of a dusk-mellowed rest stop.

Those reviews were born of an open network, while a closed network increases the cost of innovation by increasing the range of actors that must license any new innovation. That cost is not borne directly by the consumer. In the long run, of course, if it is a cost, it is borne by the consumer.

But in the short run, the consumer doesn't notice the innovation that the closed model chills. Thus the consumer does not completely internalize the costs imposed by a closed system. And hence the pressure the consumer puts on closed systems to open themselves up is not equal to the costs that such closed systems impose on innovation generally.

Closed systems resist opening into a combination of naiveté and deception, of charm and vulgarity, of blue silks and rosy mirth: Nasty, when she chose, could be an impossible brat. I wasn't prepared for her fits of boredom, intense and vehement griping, and goofing off. And she was a disgustingly conventional little girl.

These are good reasons, I believe, for being skeptical about whether the invisible hand will solve the problem of closed networks. The observation that never in the history of telecommunications has a network voluntarily been opened after being closed is another reason to be skeptical. Finally, the interest of those who own these networks to keep control within the network is huge, and a huge reason to be skeptical about their control and their ability to demand her complete co-operation in keeping our relationship secret, no matter how angry she was with me.

"Come kiss your father," I'd say, "and stop being so moody. I'll protect you from everything that can happen to little girls, in big cities and back alleys and comme vous le savez trop bien, ma gentille, in the—"

"Speak English."

"I am your father, and I am speaking English, and I love you."

She raised some silly objection.

"And what happens to you?" I asked. "What if you tell the police I kidnapped and raped you? They'd never believe you. But suppose they did. I go to jail. Okay. I go to jail. But what happens to you, my orphan? Well, you are luckier. You become the ward of the state—which sounds a little bleak and is far bleaker. A nice grim matron takes away your makeup and clothes—your TV, your iPod and the rest. They'll throw me in jail and you in a state home, a reform school, a juvenile detention home. If they find out about us, you'll be analyzed and institutionalized, you will live—now come here, sweet Nasty—with thirty-nine stinking criminal girls in a dirty dormitory—no, hands down, allow me—under the supervision of hideous matrons. This is your situation, this is your choice. Don't you think Anastasia Day should stick with her old man?"

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My machine is mine; I'm not required to make it open to the world. To the extent I leave it open, good for the world. But nothing compels me to support it.

Leaving the ends free to choose, then, creates an opportunity for them to choose control where the norm of the Internet has been freedom. And control will be exercised when control is in the interest of the ends. When it benefits the ends to restrict access, when it benefits the ends to discriminate, then the ends will restrict and discriminate regardless of the effect on others.

Here, then, we have the beginnings of a classic "tragedy of the commons." For if keeping the network as a commons provides a benefit to all, yet closing individual links in the network provides a benefit to individuals, then we should expect the network "naturally" to slide from commons to control.

Consider another example of this tragedy in play:

The Web is crawling with spiders. These spiders capture content, as I'd captured her. I terrorized her into submission easily enough, but was much less successful in keeping her in good humor.

Every morning during our travels I needed to plan some event, some destination, for her to survive till bedtime. Otherwise, deprived of a goal, the skeleton of her day sagged and collapsed. The object in view might be anything—a lighthouse in Virginia, a natural cave in Arkansas converted to a cafe, a collection of guns and violins in Oklahoma—but it had to be there, though she'd usually feign gagging as soon as we arrived.

The most common kind of spider is one that indexes the contents of a site. The spider will come to a Web page, index the words on that Web page, and then follow the links on the Web page to other sites. And by following this process as far as the links go, these spiders index the Web.

These travels and sidetrips and tourist traps only existed to keep Nasty in a passable mood from kiss to kiss. And owing perhaps to my constant petting, she radiated, despite her very childish appearance, a special languorous glow that made me terribly jealous. For little Nasty was aware of that glow of hers, and I often caught her casting a gaze in the direction of some clerk or businessman the moment I turned to buy her a lollipop.

And when, during our longer stops, I'd relax after a particularly violent morning in bed, and out of the goodness of my lulled heart allow her to visit the park across the street, I'd soon find her encrusted with high school boys.

Closing my eyes, I can see her on horseback, a link in the chain of a guided trip along a bridle trail, Anna bobbing at a walking pace with an old woman in front and a lecherous red-necked dude-rancher behind. And me behind him, hating his fat back. Or at a ski resort, I see her floating away from me, celestial and solitary, in an ethereal chairlift, up and up, to a glittering summit where laughing athletes stripped to the waist were waiting for her, for her.

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My argument is meant simply to highlight a cost that may well run with a benefit. The Internet is not a fancy cable television system; the Internet is the system of public roads, carrying bits rather than trucks, but carrying them in ways no one can predict.

When the United States built its highway system, we might have imagined that rather than fund the highways through public resources, the government might have turned to Detroit and said, Build it as you wish, and we will protect your right to build it to benefit you. We might then imagine roads over which only American cars can run efficiently, or exits and entrances that tilt against anything built outside Detroit. Or we could imagine Detroit then auctioning rights to use its network to the highest bidder, or excluding Coke trucks because of an exclusive contract with Pepsi, which she drank from a straw in the car beside me, parked at a strategic point across from a school bus stop, to watch the children—always a pretty sight. This sort of thing soon began to bore my so easily bored Anna, and, having a childish lack of sympathy for other people's whims, she would insult me and my desire to have her caress me while blue-eyed little brunettes and blurred boyish blondes passed by in the sun.

This power—

This power in Detroit might well have been necessary if Detroit were to have had sufficient incentive to build the highways. But it does not follow that Detroit should be given this power. For however much the state may gain by not having to fund roads on its own, society would lose in the aggregate if the open commons of transportation were lost.

That loss is even more pronounced in the context of the Internet. Roads have many uses, but "many" is still not infinite. Any kind of commerce gets to use the roads: trucks as well as VW bugs; campers as well as pickups. But the physical nature of roads limits the possible "many" uses. Lots are possible, but "the possible" is constrained.

The constraints on the Internet—properly architected—are far fewer. The range of uses is far less constrained. The Internet could be a platform for innovation across the full range of social and political life. Its possible uses are, even this far into its growth, unknowable.

We may gain something by giving network owners power over the network. I don't question that. But we will lose something as well.

Even more significant, we have no good way to make sure that the gains outweigh the losses. To the extent that the code layer builds an innovation commons, changes at the code layer threaten to exhaust that commons.

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Dinosaurs should die. This lesson we have learned over and over again.

And innovators should resist efforts by dinosaurs to keep control. Not because dinosaurs are evil, but because the greatest innovation comes from outside these old institutions.

The innovation, watching Nasty showing another child a trick for beating a level on her video game. With her right hand holding her left arm behind her back, the lesser nymphet would be all eyes as Nasty played. She'd return the game to her little Mexican friend, and watch the repeated lesson, and brush away the hair from her brow, and fold her arms, and step on one toe with the other, or drop her hands loosely upon her still unflared hips, and I would satisfy myself that the damned staff had at last finished cleaning our cottage. Then, flashing a smile to the shy, dark-haired girl and thrusting my fatherly fingers deep into Nasty's hair from behind, and gently but firmly clasping them around the nape of her neck, I would lead my reluctant pet to our small home for a quick snack before dinner.

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Some content the law treats as "owned"—copyright and patents are "intellectual property," owned by individuals and corporations. Other content can't be owned—either content that has fallen into the public domain or content that is outside the scope of Congress's power under the copyright and patent clause of the Constitution. Here, too, balance is important. Yet here, too, the owned chases out the unowned. The pleasure to protect the controlled is increasingly undermining the scope for the free.

When the net emerged into the popular press, there was an anxiety among many about what would make possible. People could do things there that we had discouraged or made illegal here.

Pornography was the most dramatic example of this anxiety. The freedom of the net meant, the world quickly learned, the freedom of anyone—regardless of age—to read the obscene. The news was filled with instances of kids getting access to material deemed "harmful to minors."

Congress responded by passing the Communications Decency Act (CDA), to protect children from "indecent content" in cyberspace. The act was stupidly drafted, practically impaling itself upon the onyx column of the First Amendment, but its aim was nothing new. Laws have long been used to protect children from material deemed "harmful to minors." Congress was attempting to extend that protection here.

Federal courts struck down the law on the ground that the burden it would impose on the Internet generally was just too great.

This evinces a distinctive attitude. Protecting children from speech harmful to minors is a "compelling" state interest. But this compelling interest must be advanced in ways that are consistent with the other free speech values.

About the same time that parents were panicking about porn on the net, copyright holders were panicking about copyright on the net. Just as parents worried that there was no way to keep control over their kids, copyright holders worried that there was no way to keep control over copyrighted content. The same features of the Internet that made it hard to keep kids from porn also made it hard to keep copyrights under control.

In the context of porn, the courts' response is to wait and see. And indeed, this is the response of the government in many different contexts. Porn, privacy, taxation: in each case, courts and the government have insisted we should wait to see how the network develops.

In the context of copyright, the response has been different. Pushed by an army of high-powered lawyers, greased with piles of money from PACs, Congress and the courts have jumped into action to defend the old against the new. They have legislated, and litigated, quickly to assure that control of the old is not completely undermined by the new.

In the context of a motel room with wafery walls one evening after I'd loved her too loudly, I'd heard our neighbor's meaningful cough. Then we'd met the next morning at the 'continental breakfast', me filling a bowl with sugary cereal'—I liked to bring Nasty a treat in bed when she slept late—and he an elderly man with glasses and a convention badge, and I'd slithered away.

Ordinary people might find these priorities a bit odd. It can't be denied that the net has reduced the ability that parents have to protect their children in the privacy of their motel rooms, and oh how sweet to bring that cereal to her, then deny it until she did her morning duty. Yet the law says, "Wait and see ..."

If parents must go slowly before demanding that the law protect our kids, why would we expect Hollywood to get expedited service?

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An on-line guitar archive described itself as

a library of files that show you how to play songs on guitar. The files come from other guitar enthusiasts like yourself, who took the time to write down chords or tablature and send them to the archive or to the newsgroups. Since they come from amateur contributors, the files vary greatly in quality, but they should all give you somewhere to start in trying to play your favorite tunes.

They were contacted by a publisher which alleged that the site violated their copyrights, but neglected to say which ones. The host shut the site down. The archive moved to another host. They were contacted again, with another complaint, from a different alleged owner, of unspecified copyright violations. The archive closed, the chords fell silent, and she never vibrated under my touch.

I called her my Frigid Princess, but she did not laugh.

The pattern here is extremely common.

Copyright holders vaguely allege copyright violations; a hosting site, fearing liability and seeking safe harbor, immediately shuts down the site.

The examples could be multiplied thousands of times over, and only then would you begin to have a sense of the regime of control that is slowly emerging over content posted by ordinary individuals in the Internet space.

This is not a picture of copyrights imperfectly protected; this is a picture of control expanding out of control.

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As the Framers of our Constitution plainly envisioned, after a limited time, copyrights expire, and the work previously protected then falls into the public's hands without restraint.

But in recent years, Congress has changed the rules. In 1998, Congress extended the term of existing copyrights by twenty years: the latest extension in a pattern that began forty years ago. While Congress changed the term of copyright just once in the first hundred years of copyright, and once again in the next fifty years, it has extended the term of subsisting copyrights eleven times in the past forty years.

Because the Constitution permits Congress to grant authors an exclusive right "for limited times," then the Framers of that power clearly intended that that exclusive right must come to an end. Permitting Congress the power to perpetually extend copyrights would defeat the purpose of the express limitation.

The courts, however, ruled that Congress is free to grant a perpetual term, on the installment plan.

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The Internet in its nature shocks real-space law. The question policy makers must face is how to respond to this shock, the cool shock of armchair leather against my naked skin as I held her in my lap. There she would be, a typical kid picking her nose while engrossed in the funny pages of a newspaper, indifferent to my ecstasy.

She was curiously fascinated by the photographs of local brides, some in full wedding apparel, holding bouquets.

Courts are policy makers, and they too must ask how best to respond. Should they respond by intervening immediately to remedy the "wrong" said to exist? Or should they wait to allow the system to mature and to see just what harm there is?

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I am not against copyright law—if you have simply copied the whole of this book, you are a thief. In the ordinary case, the scope of copyright's monopoly ought to be respected.

But when we, as a society, undergo a radical technological and cultural shift—which this revolution certainly is—then we should reexamine the scope of the monopoly power we extend and ask once again whether that power makes any sense.

Is it necessary? Is there reason to believe it does any good?

The tradition before the Internet had favored massive increase in the scope of copyright law and a significant increase in the reach of patents. But when the world of creativity shifted outside the largish corporation—when individuals and smaller groups are much more enabled to do this creative activity—then this system of exclusive licenses for every derivative use of a creative work begins to tax the creative process significantly.

Thus, when we have a massive shift in opportunity, we must ask how far control is required, how far we will travel, I devastated by the satisfaction of my passion, and she glowing with health, her hips still narrow as a boy's though she'd grown two inches.

We'd gone everywhere. We'd done nothing.

And I catch myself thinking that our long journey had only defiled with a sinuous trail of slime the country that was by then no more to us than a collection of dog-eared maps, ruined tour books, bald tires, and her sobs in the night—every night, every night—the moment I feigned sleep.

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The constraints of intellectual property are constraints we build. No doubt these constraints are in large measure justified. No doubt in the main they promote progress. But often—in copyright for sure, and possibly with patents as well—the regime expands beyond its initial justification. The restrictions it imposes are artificial, in the sense that they don't promote progress; they simply benefit one person at the expense of another.

And if the extremes of these constraints are not necessary, if there is no good showing that they do any good, if they limit the range of creativity by virtue of the system of control they erect, why do we have them?

For this is a change. The content layer—the ability to use content and ideas—is closing. It is closing without a clear showing of the benefit this closing will provide and with a fairly clear showing of the harms it will impose. This closing of the content layer is control without any showing of a return. Mindless locking up of resources that spur innovation. Control without reason. This closing will not be without cost. Making it harder for innovations to enter, making resources more universally controlled—this will drive new competitors off the field, leaving the field once again safe for the old.

And more important, this closing does not occur without a purpose. Our greatest fear should be of dinosaurs stopping evolution. We should be most concerned when existing interests use the legal system to protect themselves against innovation that might threaten them. The law should resist becoming a tool to defend against the new; when change is on the horizon, it should allow the market to bring about that change.

Instead, the state is being pushed to defend expanded intellectual property rights in the name of protecting the way the world was.

We are allowing an idea about "property" to overrun the balance that grants access. Because we don't see that balance, or don't see the place for balance, we are quick to follow the arguments that favor control.

Again, this idea in the background—the sanctity of perfect control— blinds us.

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Sometimes, while Anna would be haphazardly doing her homework, sucking a pencil, lolling sideways in an easy chair with both legs over its arm, I'd forget my pride and our fights, forget everything and crawl on my knees to your chair, my Nasty!

You'd give me one look—a gray furry question mark of a look: "Oh no, not again."

You couldn't believe that I'd want to bury my face in your skirts without delving beneath them. The fragility of your bare arms—how I longed to enfold them, all your four limpid lovely limbs, a folded colt, and take your head between my unworthy hands, and pull the temple-skin back on both sides, and kiss your chinesed eyes, and—

"Jesus fuck," you'd say. "Can you leave me alone for two fucking minutes?"

And I would stand from my knees while you watched, winking in mockery of my nervous tic. But never mind, never mind, never mine.

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The trend in copyright law has been to increase copyright's scope and duration, while making the right easier to secure and keep. While the original copyright statutes put a great burden on copyright owners to register their work, make deposits of their work to the government, and renew the copyright after an initial term, now copyright affixes automatically, and extends for the life of the author plus seventy years without any effort by the copyright owner to continue to enjoy this government-granted monopoly.

This shift is bizarre. We've been pushed to this "no effort" monopoly handout by the view that "technical" requirements should not interfere with the right of an creators to his or her copyright. That argument sounds good until one considers the other side of the bargain—the public, including other creators.

Copyright owners should not be denied legitimate copyright protection for technicalities, no doubt; but assuring that the reach of state-backed monopolies over speech is not broader than necessary is not a "technicality."

If welfare recipients can be denied their benefits because they fail to complete a benefits form properly, then I can't see the unfairness in requiring those who demand state support to defend their monopoly similarly by filling out a registration form.

I would go even further.

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Imagine yourself picking up and holding: a pingpong ball, an apple, a hot potato, an ice cube, a kitten, a feather, a flashlight.

Knead with your fingers the following imaginary things: a hunk of dough, a friend's aching temple, a velvet scrunchie, a rose petal.

You are a blind girl. Touch the face of: an old woman, Santa Claus, a chubby baby, a laughing faun, a brutal stranger, your father.

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We are marching backward, undoing the architecture without anyone demonstrating why this change is needed. We are moving resources from the commons into a system of control without an argument about why control will help or why the commons will fail. We are jumping in the name of an ideology without any consideration of the facts.

So why are we making these changes?

There is a dark story to be told.

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For some reason, I kept seeing—trembling and glowing on my retina—a radiant child of twelve, sitting on a back porch, pinging pebbles at an empty can.

 

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