From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access.

• Author: Benkler, Yochai

1. INTRODUCTION

   Constructing our information environment as one composed of information "from diverse and antagonistic sources"(1) has been a central focus of structural regulation and its First Amendment justification for half a century. In the twentieth century, structural media regulation meant tinkering with the configuration of a mass media market aimed at eyeballs. For example, group ownership and duopoly rules, licensing criteria like diversity and localism, financial interest and syndication rules, or cable access rules, took the basic structure of mass media markets as given, and tried to make sure that this basic structure delivered somewhat more diverse content than it would if left to its own devices. Technology now makes possible the attainment of decentralization and democratization by enabling small groups of constituents and individuals to become users--participants in the production of their information environment--rather than by lightly regulating concentrated commercial mass media to make them better serve individuals conceived as passive consumers. Structural media regulation in the twenty-first century must, in turn, focus on enabling a wide distribution of the capacity to produce and disseminate information as a more effective and normatively attractive approach to serve the goals that have traditionally animated structural media regulation.

   As the digitally networked environment matures, regulatory choices abound that implicate whether the network will be one of peer users or one of active producers who serve a menu of prepackaged information goods to consumers whose role is limited to selecting from this menu. These choices occur at all levels of the information environment: the physical infrastructure layer--wires, cable, radio frequency spectrum--the logical infrastructure layer--software--and the content layer. At the physical infrastructure level, we are seeing it in such decisions as the digital TV orders (DTV Orders), or the question of open access to cable broadband services, and the stunted availability of license-free spectrum. At the logical layer, we see laws like the Digital Millennium Copyright Act (DMCA)(2) and the technology control litigation that has followed hard upon its heels, as owners of copyrighted works attempt to lock up the software layer so as to permit them to control all valuable uses of their works.(3) At the content layer, we have seen an enclosure movement aimed at enabling information vendors to capture all the downstream value of their information. This enclosure raises the costs of becoming a user--rather than a consumer--of information and undermines the possibility of becoming a producer/user of information for reasons other than profit, by means other than sales.

   At all these levels, the fundamental commitment of our democracy to secure "the widest possible dissemination of information from diverse and antagonistic sources"(4) which has traditionally animated structural media regulation, should be on securing a significant component of the information environment for creative use by users. To implement such an agenda would require a focus on identifying resources necessary for the production and exchange of information and fashioning regulatory policies that make access to and use of these resources equally and ubiquitously available to all users of the network. Developing a series of commons in such resources is an important mode of implementation of this commitment. Other modes could include access and carriage requirements aimed specifically at making possible the development of a network of peer users. Identifying and sustaining commons and securing access to communicative resources are more important focuses for information policy concerned with democracy than assuring that there are eight rather than three broadcast networks or that no two networks are under common ownership.

2. AT THE CROSSROADS

   The basic structure of mass media markets emerged in the middle of the nineteenth century. Harold Innis(5) and James Beniger(6) have described how the development of high volume, high cost mechanized printing presses and the telegraph changed the enterprise of the press from a local, small circulation medium for political and public discourse to a mass scale demand management system.(7) As Innis put it, journalists became people who write on the back of advertisements.(8) After the introduction of broadcast, a series of business and regulatory decisions channeled this new medium into the same model,(9) and by the late 1920s, the basic structure of our mass mediated environment was in place.(10) This structure relies largely on a small number of professional, commercial producers seeking to serve the widest possible audiences. As Baker showed quite comprehensively,(11) they do so by providing information and cultural products that have relatively wide appeal and gloss over, rather than tend to, the diversity of actual interests and needs of finer divisions within the body of the mass audience. Nothing captures this better than the metaphor of the market for eyeballs. This basic structure will remain unaffected as long as we continue to think of our information and communications policy purely in terms of securing better service to consumers.

   There is an alternative. The Internet graphically represents this for us, at least as it was in the 1990s. In this information environment, the end points are users--an ambiguous category from the perspective of an established conception of an information environment composed of (a small number of professional) producers and (a large number of passive) consumers. Users sometimes receive information and sometimes rework it and send it to others. They can play the roles of producer and consumer. Their acts of reception are dialogic in the sense that they can easily be mapped as moves in a conversation rather than as endpoints for the delivery of a product.(12)

   This alternative is neither utopian nor preordained. It is possible to have a system that breaks through the clear cut categories of producer and consumer. For decades, individuals have been willing to pay much more for the privilege of participating in conversations than to receive professional content---expenditures on long-distance and local telephones have been greater than expenditures on newspapers, magazines, broadcast, cable, and movies put together.(13) A combination of technology, business organization, and law prevented the emergence of a widely decentralized information environment where production and consumption are less starkly separated.(14)

   Today, as the Internet and the digitally networked environment present us with a new set of regulatory choices, it is important to set our eyes on the right prize. That prize is not the Great Shopping Mall in Cyberspace. That prize is the Great Agora--the unmediated conversation of the many with the many.

3. WHY USERS? DEMOCRACY, PERSONAL AUTONOMY, AND COMMUNICATION

   In a series of cases in which the Supreme Court reviewed various media regulations, the Court has steadily developed an understanding that decentralization of information production is a policy that serves values central to the First Amendment.(15) Most pithily captured in Justice Black's statement in United States v. Associated Press,(16) since adopted in other cases in this line--Red Lion and the two Turner cases--it is central to the values served by the First Amendment that we secure "the widest possible dissemination of information from diverse and antagonistic sources."(17)

   These cases represent a central problem of modern First Amendment law. First identified in 1947 by Zechariah Chafee(18) and the Commission on Freedom of the Press (Commission) that he vice-chaired.(19) the problem arises from the technological and economic fact that different people and organizations in society have very different power to affect the flow of information in society. In particular, the owners of mass media outlets have an unusual degree of control over who gets to say what in the public arena. The problem arises when government intervenes to regulate media outlets with the specific intent of serving the values underlying the First Amendment--robust debate, diversity of viewpoints, and individual expressive freedom. The hope for such regulation is that it will in fact implement these core values. The fear, of which Chafee and the Commission writing at the dawn of the second red scare were well aware, was not only, or even primarily, that regulators would do a poor job and discourage as much as encourage valuable speech.(20) The problem is that government might use its power to suppress speech it disagrees with under the guise of regulating to enhance freedom of speech, and that government would get too comfortable with the idea of regulating communications markets and regulate well beyond what is necessary to assure robust, open discourse.(21)

   The problem of how to reconcile the fear of government intervention with the reality of a tightly controlled media industry that provides relatively little diversity and less access to most of society's constituents has since been taken up by others. Jerome Barron's work on access rights was the high water mark of the direct translation of these insights into a claim for constitutionally based access rights to the means of public discourse.(22) It largely broke on the shoals of Miami Herald Publishing Co. v. Tornillo.(23) Since then, Baker,(24) Fiss(25), and Sunstein(26) have developed extensive and sophisticated justifications for the adoption of speech-enhancing policies.

   It is all too simple and misleading to ignore the centrality of the electronic media regulation cases to our understanding of the values we ought to pursue in our information and communications policy. We have the imperious tone of Miami Herald to sooth us into believing that it, rather than these aberrant cases, is the norm adopted...