Susan Crawford touches on the parallels between IP and communications in this post. I think she is absolutely correct (obviously, I suppose, given my infrastructure piece). I have two comments. First, I would hasten to add that the problem should not be framed as either a monopoly or public goods problem. It is much more complex than that. (I know that Susan sees this as well, given her work on complex systems. ) While both of those frames are relevant, they are incomplete and tend to lead to rather narrow supply side thinking (e.g., how best to create incentives to supply). Perhaps: What Susan, myself and many others are grappling with is how to best get a handle on figuring out what it is that we want as a society – what type of (information, communications, natural, relational …) environment do we demand? IP is not only/simply about supplying works and inventions, and communications law is not only/simply about supplying access to a network. The character, quality, terms, conditions, nature, … of that which is being supplied matter. What is difficult, I think, is figuring out whether and how the market mechanism assesses and responds to our demands–as consumers and more generally as a society (as I explore elsewhere, there may be divergence or a wedge between consumer demand [willingness to pay] and social demand). To the extent that there are demand-side market failures, the prescriptions that flow from analyzing the problem as a monopoly problem or public good problem may exacerbate (rather than ameliorate) the failures. I touch on these issues in a number of different papers and am continuing to work in this area; so feel free to post or email comments.
My second comment is simply that the parallels perceived by Susan (and others) extend well beyond communications and IP. Again, something I’ve written about and am still pursuing.
Brett makes a really important point, one that I’ve written about it in different terms and in different contexts. The different terms are that we can’t take the existence or scope of “the network” or “the internet” for granted. Susan makes this point, too, in terms of “flows”; I make it in terms of “things.” But these are the flip sides of the same issue. The different context is software licensing (Yochai Benkler, of course, has written about this), which is another problem child of the public/private distinction.
Susan is exploring this in the communications context; Brett is doing this at a theoretical level (the infrastructure argument) and in various institutional applications of that theory. I’m interested in a sympathetic middle ground, which looks at the distinction between regulating the “open” or “closed” character of communications resources as a species of a slightly larger question. Since I assume that the character of society’s innovative and creative output is affected by the material conditions under which innovation and creativity occurs (or doesn’t occur), and since I assume that regulation can influence those material conditions, how do we use the tools at our disposal to “design” an optimal innovation environment? How do we design the places and spaces and things that we inhabit and use; how do we write the stories that we tell ourselves?
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