Lawmeme is blogging this weekend’s conference at Yale on Information as Governance, and the summary of yesterday’s opening conversation among Robert Post, Yochai Benkler, and Jack Balkin is very interesting. Post and Benkler appear to have disagreed on a foundational point:
Post, paraphrased: Information is a thing. But the first amendment looks only at speech as an action. The value of a thing comes only from its incorporation into actions. Copyright turns the action of speaking into information, a thing. . . . So don’t think of information as the agent. It doesn’t flow, it doesn’t do anything. People do these things. We care about people, not things.
Benkler, paraphrased: Information isn’t a thing, it’s a flow! Packaged goods give away to flows moving in the network. Instead of going to an almanac, you make a Google query. That’s away from a thing and towards a process. . . . The mass-media era was based on high start-up and high ongoing costs, but low marginal costs for each “instantiation.” Newspapers, radio, telephones, cable, etc. — the core determined what could be said, because it took such high capitalization. . . . But now we move from capitalization-financed stuff at the core to user-financed stuff at the periphery. The capitalization isn’t lower, it’s just distributed. Everyone around the planet has the basic capital to make and communicate knowledge, creativity, etc. The only truly costly input of new information is human creativity. this creates new freedoms, new complexity, and a very different flow and rhythm.
So they agree that information law isn’t about things, but they appear to disagree on what it should be about. Post = people in social processes; Benkler = information flows.
My suspicion is that both speakers are too quick to dismiss “the thing” as a premise of information policy. Post is right that we can’t and shouldn’t ignore social processes. Benkler is right, too, that we can’t and should ignore information flows. So, they don’t really disagree; their positions are complementary.
But we also can’t and shouldn’t ignore “things.” People and firms like and want and use things. Material things. Virtual things. Conceptual things. The law finds things and creates things. Information flows are flows that involve things. Social processes are processes about things. If we ignore things (“we” meaning society and “we” also meaning policymakers), we do so at our peril, since our understandings of information flows and social processes will be fundamentally incomplete. This is a First Amendment point as well as a copyright point; it’s also a commercial law point and an antitrust law point. The Betamax case is a case about contested things. Grokster is a case about contested things. Information isn’t the only thing that governs. Things govern, too.