List

Lessig, Lawrence. “The Architecture of Innovation,” 51 Duke Law Journal 1783 (2002).

  • Lessig is concerned in this piece with what happens when an idea “sticks it to society;” or becomes an object that society can’t change.  He wants to know if he can get people to believe that there might be something contestable about what seems unquestionable.
  • The “thing” that is sticking it to society – according to Lessign – is property.  Specifically, Lessig wants to think about how “resources” are and could be controlled.
  • The question of resource allocation has been an ongoing one in political circles.  Lessig notes that state vs. market control is a centuries old debate; however, it would appear that the market has won in a post-Communist era.  Unfortunately, this question comes after the one that really matters – should there by any control at all of some resources?
  • The three-layer conception of communication a la Benkler:
    • Layer one – physical layer.  The wires and cables that create communication.
    • Layer two – logical layer.  This layer is the system that controls who gets access to what or what gets to run where.
    • Layer three – content layer.  This is the stuff that gets said or written within any given system of communication.
  • Commons defined:  “they are within the reach of members of the relevant community without the permission of anyone else” (181).
  • The three layers of the internet:
    • 1 – cables owned by the owner.  Property.
    • 2 – the protocols that make the net run.  These are usually chunked into TCP/IP and are usually defined by the end-to-end conception of internet use.  This network doesn’t care about content.  In that sense, it is a commons that doesn’t restrict content via it’s own logic.
    • 3 – the content layer is both free and controlled.
  • Lessig claims that the content layer is quickly becoming homogenized by control – not a mix anymore.
  • The logic of control and capitalism – “the whole world is best managed when divided among private owners” – is changing the architecture of the internet toward a privatization model.
  • Cable operators seek to control the logic of layer two to ensure availability of only certain content.
  • DMCA is the cooptation of the logical layer – the discipline and control is coded into the logic of the machine.  Math becomes ideological.
  • Intellectual property is not property – in fact it is a protection against monopolies and exclusive rights. . . paradoxically (189).
  • Lessig claims that culture has taken for granted that the public domain and the commons are nearly dead.
  • Lessig notes that, “the free speech clause of the first amendment will be read to entitle those who owned the wires to change the logical layer and make it owned as well; the free competition principle of the Sherman Act will be read to entitle the owner of the platform that most affects this logical layer to code that platform to discriminate as it wants; and the free culture that we have seen flourish in this commons built by the Internet will be captured and controlled again by those who control most of the content, and by those who succeed in congress in expanding their control from the imperfect to the perfect” (189).
  • The logic of control is usually propagated by individuals who understand culture as “served” by corporations and the state.  The Dialectic of Enlightenment.

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