Cyberspace as Place, and the Tragedy of the Digital Anticommons

[Dave Farber <dave () farber net>]

Cyberspace as Place, and the Tragedy of the Digital Anticommons


DAN HUNTER 
University of Pennsylvania, Wharton School
------------------------------------------------------------------------


California Law Review, Forthcoming



Abstract:      
Cyberspace was once thought to be the modern equivalent of the Western
Frontier, a place, where land was free for the taking, where explorers could
roam, and communities could form with their own rules. It was an endless
expanse of space: open, free, replete with possibility. This is true no
longer. This Article argues that we are enclosing cyberspace, and imposing
private property conceptions upon it. As a result, we are creating a digital
anti-commons where sub-optimal uses of Internet resources is going to be the
norm. 

Part I shows why initial discussions of cyberspace as place have mistaken
the idea of how we think about cyberspace, with the normative question of
how we should regulate cyberspace. It suggests that we can bracket the
normative question, and still answer the descriptive question of whether we
think of cyberspace as a place.

Part II then examines the lessons of recent cognitive science, and
demonstrates the importance of physical metaphors within our cognitive
system. It then examines the evidence of our use of a physical metaphor,
"cyberspace as place", in understanding online communication environments.

Part III focuses on the unacknowledged, and unrecognized, influence that
this metaphor has had on the development of the legal framework for the
Internet. It examines tortious, criminal, and constitutional law responses
to cyberspace, and concludes that the metaphor of "cyberspace as place"
exercises a strong, and unrecognized, influence on the regulatory regimes of
cyberspace. 

Part IV details the implications of this observation and shows why they are
extremely troubling. The conception of "cyberspace as place" leads to the
implication that there is property online, and that this property should be
privately owned, parceled out, and exploited. Though private ownership of
resources of itself is not problematic, it can lead to the opposite of the
tragedy of the commons: the tragedy of the anti-commons. Anti-commons
property occurs when multiple parties have an effective right to preclude
others from using a given resource, and as a result no-one has an effective
right of use. Part IV argues that this is precisely where the "cyberspace as
place" metaphor leads. We are moving to a digital anti-commons, where no-one
will be allowed to access competitors' cyberspace "assets" without some
licensing, or other transactionally-expensive (or impossible), permission
mechanism. The Article shows how the "cyberspace as place" metaphor leads to
undesirable private control of the previously commons-like Internet, and the
emergence of the digital anti-commons. As we all come to stake out our
little claim in cyberspace, then the commons which is cyberspace is being
destroyed. 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=306662

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