September 23, 2010
Why the Internet Works: "The seeming schism between 'private' and 'common' [ought not be taken] too seriously."
One of the law prof bloggers who was omitted from a recent NLJ special Law School Report supplement titled "A look at professors who have made blogging a mainstream medium" was New York Law School's James Grimmelmann. See LLB's On Unintended Consequences: Tenured Law Profs Who Helped Make Blogging a Mainstream Medium in the Legal Academy. Grimmelmann started writing on the Internet long before any of the featured law profs in the NLJ piece. Why was he omitted? Failure to do homework, no doubt. Grimelmann's current web destination is The Labortorium. Well, what do you expect from the legal press.
Recently he published an article titled The Internet Is a Semicommons, 78 Fordham Law Review 2799 (2010) [bePress] which adds to David Post’s In Search of Jefferson’s Moose: Notes on the State of Cyberspace (2009) and Jonathan Zittrain’s The Future of the Internet and How to Stop (2008) commentary on the Internet. Some may view what he has to same as a much-needed corrective to those works. At the very least, it is a more balanced analysis of the current state of affairs. In that context, Grimmelmann writes:
I’d like to suggest a third reason that the Internet works: it gets the property boundaries right. Specifically, I see the Internet as a particularly striking example of what property theorist Henry Smith has named a semicommons. It mixes private property in individual computers and network links with a commons in the communications that flow through the network. Both private and common uses are essential. Without the private aspects, the Internet would collapse from overuse and abuse; without the common ones, it would be pointlessly barren. But the two together are magical; their combination makes the Internet hum.
Highly recommended. A snip from the article's conclusion:
In the scholarly debates over the significance of the Internet, the private versus common dichotomy looms large. Triumphalists proclaim that the Internet creates new forms of collaboration and that the commons is the way of the future. Skeptics respond that the stability and sustainability of the Internet depend on private ownership. These are the Comedic and Tragic stories, and they animate scholarly controversies in telecommunications, intellectual property, privacy, intermediary regulation, virtual worlds, and almost every other corner of Internet law. In addition to its analytical virtues in explaining why some Internet systems thrive and others fail, semicommons theory also speaks to these debates. It reminds us not to take the seeming schism between “private” and “common” too seriously.