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The Architecture of Innovation

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Lawrence Lessig, The Architecture of Innovation, 51 Duke L. J.

Citation 1783 (2002).

http://scholarship.law.duke.edu/dlj/vol51/iss6/2/

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THE ARCHITECTURE OF INNOVATION

LAWRENCE LESSIG† Every society has resources that are free and resources that are controlled. A free resource is one that anyone equally can take; a con- trolled resource one can take only with the permission of someone 2 else. E=MC is a free resource. You can take it and use it without the permission of the Einstein estate. 112 Mercer Street, Princeton, is a controlled resource. To sleep at 112 Mercer Street requires the per- mission of the Institute for Advanced Study.

A time is marked not so much by the ideas that are argued about, but by the ideas that are taken for granted. The character of an era hangs on what one need not question; the power in a particular mo- ment runs with the notions that only the crazy would draw into doubt.

Sometimes that is just fine. I’m happy the question of infanticide is off the table; how extraordinarily tedious it would be if we regularly had to debate whether we wanted to be a democracy. In the language of computer programming, it is a great and valuable thing that certain ideals get compiled into social life. It is an advantage that everything need not at every moment be interpreted.

But sometimes a society gets stuck because of an idea it can’t quite question, or dislodge. Sometimes the idea “sticks” the society.

And when that happens, the hardest part of political action—the hardest part of changing an aspect of society—is to get people to see Copyright © 2002 by Lawrence Lessig.

† Professor of Law, Stanford Law School. This lecture was delivered as the inaugural Meredith and Kip Frey Lecture in Intellectual Property at Duke University School of Law on March 23, 2001.

1784 DUKE LAW JOURNAL [Vol. 51:1783 how this taken-for-granted idea might be wrong. To get people to be- lieve that there might be something contestable about what seemed unquestionable, or evento get them to see that the story is more complex than they believed.

And so it is with us.

We live in an era when the idea of property is just such a thought, or better, just such a non-thought; when the importance and value of property is taken for granted; when it is impossible, or at least for us, very hard, to get anyone to entertain a view where property is not central; when to question the universality and inevitability of complete propertization is to mark yourself as an outsider. As an alien.

I don’t mean the debate about commodification crystallized by feminism, or a debate about whether we conceive of social relations as a kind of property right. That is a fundamentally contested discourse, rich with possibility and profoundly important.

I mean something much more mundane and simple. I mean the question of property in resources. Or, more precisely, the question of whether resources should be controlled—or how they should be controlled.

For about this question, there is apparently no debate. As Yale Professor Carol Rose puts it, we live in a time when the view is that “the whole world is best managed when divided among private owners.” The most creative minds in public policy turn their attention to how best to divide resources up. The assumption is that well-divided resources will always work best.

We have this view—this taken-for-granted, background view— because for the last hundred years, we’ve debated a related question, and that debate has come to an end. For the last hundred years, the question exciting political philosophy has been which system of control works best. Should resources be controlled by the state, or controlled by the market? And this question, we all rightly believe, has been answered. In all but a few cases, for a wide range of reasons, we know this: that the market is a better tool for controlling resources than the state. That between the two, there is no real debate.

1. Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 712 (1986).

2002] THE ARCHITECTURE OF INNOVATION 1785 But this confidence obscures a distinct and more basic question.

This certainty about the superiority of the market to the state leads us to ignore an issue that comes before. Not the question of which system of control is best for any given resource, but instead the question—should a resource be subject to control at all. Not the market versus the state, but controlled versus free.

If communism versus capitalism was the struggle of the twentieth century, then control versus freedom will be the debate of the twentyfirst century. If our question then was how best to control, our question now will become whether to control. What would a free resource give us that controlled resources do not? What is the value in avoiding systems of control?





Now, this is a hard question to ask at Duke. It’s actually a hard question to ask anywhere, as it usually elicits a sheeplike stare among most in the audience. But it is particularly hard to ask here because here it’s been asked, and answered, many times before.

The controlled versus free debate gets reborn within law in an essay about the public domain, penned by Professor David Lange.2 The paradox between the controlled and the free is crystallized in the first great book of the information era, by one who has romantically denied the romance in authorship, Professor James Boyle.3 And the struggle to preserve internationally the space of the free in the core of science and the periphery has at its center the energy of Professor Jerome Reichman.4 And so here is the real struggle of one invited to Duke to speak of things learned from Duke: The exercise quickly feels less like a lecture, and more like an exam. At each moment I feel myself pulled to look up for correction or scoring; I sit spinning at my desk wondering whether there is anything new to say to a school that reminds us

2. David Lange, Recognizing the Public Domain, 44 LAW & CONTEMP. PROBS. 147 (Autumn 1981).

3. JAMES BOYLE, SHAMANS, SOFTWARE, AND SPLEENS: LAW AND THE CONSTRUCTION

OF THE INFORMATION SOCIETY (1996).

4. J.H. Reichman, Of Green Tulips and Legal Kudzu: Repackaging Rights in Subpatentable Innovations, 53 VAND. L. REV. 1743 (2000) [hereinafter Reichman, Of Green Tulips]; J.H.

Reichman & Paul F. Uhlir, Database Protection at a Crossroads: Recent Development and Their Impact on Science and Technology, 14 BERKELEY TECH. L.J. 793 (1999); Pamela Samuelson, Randall Davis, Mitchell D. Kapor & J.H. Reichman, A Manifesto Concerning the Legal Protection of Computer Programs, 94 COLUM. L. REV. 2308 (1994).

1786 DUKE LAW JOURNAL [Vol. 51:1783 about how much of the old there is in everything new. And then, for a moment, I’m relieved by the thought that if I say nothing new, then you all will feel at least vindicated in your view of how little new there is in the work of any author, or at least this author.

But here’s the way I want to take your arguments, and say something new. Put most abstractly, I want to translate your arguments into space; to place them within an architecture. And then to demonstrate the points you’ve already made through the machines we’ve come to know. Through the machines that have defined the potential for a kind of freedom that we, as a culture, have not known for a very long time.

COMMUNICATION SYSTEMS

Professor Yochai Benkler of New York University School of Law is a theorist of free communication who says to think about a 5 system of communication divided among three layers. These layers interconnect; each depends upon the other; any communication depends upon all three.

At the bottom of these three, there is the physical layer—the wires that connect the phones or the computers; the cable across which television might be broadcast; above that, the logical layer— the system that controls who gets access to what, or what gets to run where; and above that, the content layer—the stuff that gets said or written within any given system of communication.

Now, each of these layers in principle could be controlled or free.

They would be free if they were organized in a commons—organized so that anyone could get access or equal terms, whether they had to pay (a fixed and neutral charge) or not. They would be controlled if they were the property of someone else—someone who had a right to exclude, or to decide whether to grant access based upon his or her own subjective reasons.

Depending on whether these layers are free, or are controlled, the communications system that gets built differs.

5. Yochai Benkler, From Consumer to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access, 52 FED. COMM. L.J. 561, 562–63 (2000).

6. See LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A

CONNECTED WORLD 23–26 (2001) (explaining the application of the layers approach to the Internet).

2002] THE ARCHITECTURE OF INNOVATION 1787 Consider four possibilities as we vary whether each of these layers is owned or free.

Speakers’ Corner. Orators and loons gather every Sunday in Hyde Park’s Speakers’ Corner to rage about something or nothing at all. It has become a London tradition. It is a communication system organized in a specific way. The physical layer of this communication system (the park) is a commons; the logical layer (the language used) is also a commons. And the content layer (what these nuts say) is their own creation. It too is unowned. All three layers in this context are free; no one can exercise control over the kinds of communications that might happen here.

Madison Square Garden. Madison Square Garden is another place where people give speeches. But Madison Square Garden is owned. Only those who pay get to use the auditorium; and the Garden is not obligated to take all comers. The physical layer is therefore controlled. But like Speakers’ Corner, both the logical layer of the language and the content that gets uttered is not controlled in the context of the Garden. They too remain free.

The Telephone System. Before the breakup, the telephone system was a single-unitary system. The physical infrastructure of this system was owned by AT&T; so too was the logical infrastructure, which determined how and to whom you could connect. But what you said on an AT&T phone (within limits at least) was free: The content of the telephone conversations was not controlled, even if the physical and logical layer underneath were.

Cable TV. Finally, think of cable TV. Here the physical layer is owned in the form of the wires that run the content into your house.

The logical 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, in Professor Benkler’s sense, remains free.

This then is the range. A communications system, and hence, a system for innovation, could be any of the four, or, of course, more than these four. But these four set the range that will best help us understand a very specific example: The Internet.

1788 DUKE LAW JOURNAL [Vol. 51:1783 It is commonplace to think about the Internet as a kind of commons. It is less commonplace to actually have an idea what a commons is.

By a commons I mean a resource that is free. Not necessarily zero cost, but, if there is a cost, it is a neutrally imposed or equally imposed cost.

8 Central Park is a commons: an extraordinary resource of peacefulness in the center of a city that is anything but; an escape and refuge that anyone can take and use without the permission of anyone else.

The public streets are a commons: on no one’s schedule but your own, you enter the public streets, and go in any direction you wish.

You can turn off of Broadway onto Fifty-second Street at any time, without a certificate or authorization from the government.

Fermat’s Last Theorem is a commons: a challenge that anyone could pick up and complete, as Andrew Wiles, after a lifetime of struggle, did.

Open source, or free software, is a commons: the source code of Linux, for example, lies available for anyone to take, to use, to improve, to advance. No permission is necessary; no authorization may be required.

These are commons because they are within the reach of members of the relevant community without the permission of anyone else. They are resources that are protected by a liability rule rather than a property rule. Professor Reichman, for example, has suggested that some innovation be protected by a liability rule rather than a 9 property rule. The point is not that no control is present, but rather that the kind of control is different from the control we grant to property.

The Internet is a communication system. It too has these three layers. At the bottom, the physical layer, are wires and computers,

7. See generally id. (discussing the idea of the commons in intellectual property theory).

8. I used Central Park, Fermat’s Last Theorem, and open source as examples of commons in an Address Before the First Amendment and the Media Symposium at the Fordham University School of Law on February 9, 1999. For the full text of this lecture, see Lawrence Lessig, Commons and Code, 9 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 405 (1999).

9. See generally Reichman, Of Green Tulips, supra note 4 (arguing that protecting small, subpatentable innovations with a liability rule rather than a property rule would yield a net benefit to society).



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