At The Crossroads

The Internet and its distinctive architecture have created a freer culture than we have ever had before -- or even imagined. The next few years will decide whether the Net will be made to conform to existing laws and values, or whether society will recognize it as a new kind of realm. The fighting has started. (Read More).

As any number of legal and constitutional scholars have written, the Internet has breached many of the walls built around information, ideas and intellectual property.

Perhaps the primary reason the Net has been so free is its architecture, no doubt the greatest protector of free speech online and the reason that issues relating to the distribution of software and hardware are taken so seriously. If politicians, lawyers, businesspeople and journalists have grown alarmed to the point of hysteria because of the Net's wall-busting capabilities, the digital infrastructure has been freedom's best pal and the reason we are all freer than our non-wired counterparts.

Some in the media, a number of affected artists and copyright holders, and many large corporations -- even some people involved in technological movements like open source -- have a tendency to oversimplify copyright issues. Piracy, they say, is wrong, and copyright isn't necessarily a bad thing.

This is, to say the least, stating the obvious. They're right. Piracy, like murder, arson and theft, is unequivocably a bad thing. Who, exactly, is for it? And ownership of ideas is an important tradition. Unfortunately, the issue isn't that copyright is a good or bad witch, but that like the one in Oz, a very big house has fallen on it.

This isn''t a Sunday School morality play, with clearly defined good guys and bad guys. The reality is that the very definition of copyright has been shattered by the Net, along, perhaps with conventional wisdoms about piracy and theft. Finding a fair and workable response will be difficult.

The relative anonymity, the tools of encryption, decentralized distribution, multiple points of access, the irrelevance of traditional geographical boundaries, the challenges to conventional policing, the lack of systems to identify content -- those features designed by the far-sighted wizards who built the Net three decades ago have made it difficult, if not impossible, to control speech in cyberspace.

Not that people haven't tried. Congress passed not one but two Communications Decency Acts to curb speech online, and millions of dollars worth of blocking, filtering and censoring programs have been sold to schools, businesses and parents. Corporate lawyers are cranking out print and e-warning patent and copyright letters by the thousands, sometimes even the hundreds of thousands.

There is no special reason to believe that the current architecture will remain in place. The next generation of Net architects -- more and more likely to work for businesses, with radically different interests than the Net's original designers -- may well build in more controls over the movement of content and information.

Even the U.S. government is beginning to grasp the impact that corporatism is having on technology. In a California speech last week, Treasury Secretary Lawrence H. Summers noted three features of the information revolution: its dependence on brainpower more than conventional economic resources; the globalization of information technology and markets; and its tendency to produce successive monopolies, with a single firm often dominating each generation of technology and products.

Monopolies, as economists know, are obsessive wall-builders. "We can already see the beginnings of this reconstruction," writes Harvard Constitutional expert Lawrence Lessig in his book "Code; and other laws of cyberspace." "Already the architecture is being remade to reregulate what real-space architecture before made regulable. Already the Net is changing from free to controlled."

True. We are clearly passing from one phase to another, though it's far from clear exactly how free the Net will or won't remain. Technology is inherently unpredictable. No one foresaw the Internet, no one can state with certainty how it will evolve. Everyone reading this is well aware of the growing number of lawsuits, patent and copyright issues cropping up online dealing with text, ideas, music, words, software. One primary instrument of legal architecture being deployed to control the Net is the Digital Millenium Copyright Act (DMCA), little mentioned until a few months ago, but by now familiar to almost everyone interested in speech, copyright or intellectual property matters.

It says a lot about the sad state of media and politics that few people in the country understand how much is at stake when it comes to Net architecture and other issues directly related to this uniquely free environment.

"The architecture of the Internet, as it is right now is perhaps the most important model of free speech since the founding [of the American Republic]," writes Lessig. "This model has implications far beyond e-mail and web pages. Two hundred years after the framers ratified the Constitution, the Net has taught us what the First Amendment means. If we take this meaning seriously, then the First Amendment will require a fairly radical restructuring of the architectures of speech off the Net as well."

This is a powerful idea, much closer to Thomas Jefferson's visions -- he didn't believe ideas could or should be owned -- than to those of contemporary political leaders. He also foresaw that the politics surrounding ideas could change.

But the kind of restructuring Lessig is talking about will take time, and involve complexities and controversies beyond the existing public debates over speech and copyright, i.e. you're-a-thief; no-I'm-not.

In a way, technology and copyright have always been at war. Before the printing press, the idea of copyright was almost incomprehensible: copying was so cumbersome and expensive that nature and time itself protected an author or creator.

Copying is no longer difficult. As each generation has developed better technologies, the ability of copyright holders to protect their intellectual property has eroded to the point where copyright either has to be re-defined or abandoned.

This has brought the Net to a distinct, profoundly significant fork in the road. There are really only two choices when it comes to defining and enforcing free speech and the ownership of ideas and intellectual property. As a society, we can try to make cyberspace conform to the rules of physical space. Or we can recognize the extraordinary potential of this new culture, and invest cyberspace with laws and values and properties that are fundamentally different.

Before the Internet, copyright law and the means to enforce it were relatively simple. Cyberspace changes not only the technology of copying but also the power of law and legislators to protect against illegal copying. In a sense, the Net is a giant Xerox machine, cranking out digital copies at almost no cost, in staggering quantities, to incalculable numbers of people -- all at unbelievable speed. Pity the cop whose job it is to enforce existing copyright -- tracing and punishing violators -- online. Talk about a crime wave.

This has enormous implications for free speech and intellectual property. Technologies that work have always gotten used, whether they should be or not. It's still true. People who can download text, columns, games, ideas, music and software will do so, if for no other reason than because they can. People who can use technology to comment freely, distribute code, challenge authority and criticize powerful corporate interests will do so, not only because they have the right but because they are able. This is the immutable reality of cyberspace, the new political consciousness emanating from the Internet.

All along the Internet Edge, legal and political conflicts are intensifying over the ownership of music, patents, programs, code, content and ideas.

This battle will sorely test a system that hasn't even begun to come to grips with the impact of the Internet on freedom, or on traditional models of commerce and information distribution. The libertarian ethic that has always defined much of the Internet associates government with threats to liberty. Traditionally, the libertarian is concerned about reducing the power of government. But threats to liberty change: in our time, they increasingly arise from corporate, not governmental power. And there is no mainstream political movement primarily concerned with that, in part because corporatism has acquired much of the press and now provides the primary funding for the political system.

To date, there's no consensus about which Internet choice should be made -- to make it conform to existing laws and values, or to recognize it as a new kind of space. Nor is there anything like broad agreement about what changes might be made, if there are to be any.

But the issue is becoming more distinct every day. Computer users, members of Web communities, software developers and Web site operators are increasingly confronted with lawyers, arguments and new kinds of questions about the movement of information and ideas. The Net is, as a result, in danger of losing at least some of the freedom that characterized its first decades.

The United States has always had a love-hate relationship both with freedom and government. America has been a country that self-righteously espouses the notion of individual liberty, even as many Americans and institutions from the Puritans to the sponsors of the DMCA -- have continuously tried to take it away. Since freedom involves not a single idea but a complex system of values, the struggle to define what it is is a never-ending intellectual, economic, personal and political --and increasingly, technological -- struggle, one which is now engulfing the Internet.

The Net gave America a freer culture than it had ever had, or even quite imagined. The next few years will decide if it stays that way. Were the founders alive -- people like Paine, Jefferson and Franklin -- they would find in the Internet many of their values and dreams for a free and democratic society. And they'd fight to keep it that way.

"New circumstances," wrote Jefferson in 1813, "...call for new words, new phrases, and for the transfer of old words to new objects."