death of cyberspace, The

Washington and Lee Law Review, Spring 2000 by Lessig, Lawrence

1999 is an oddly rich year for remembering. In Berlin, the city that is my home this year, it is the tenth anniversary of the fall of the Berlin Wall. It is the fiftieth anniversary of the rebirth of Germany. It is the fiftieth anniversary of Mao's China. And it is ten years since the image of a brave but foolish Chinese student standing defiantly before a tank became for us the image of Tiannamen.

It is also for us an anniversary of a different sort. It is a decade since "Internet time" began. Though it's harder here to mark moments, and though of course the Internet technically lived long before, 1989, it was not until the early 1990s that the Internet became an idea in the minds of ordinary people. In CERN, Tim Berners-Lee was just describing the protocol that would become the World Wide Web. Microsoft was just readying release of Windows 3.

Decades are good lengths of time for marking moments of reflection. They are long enough to give perspective, yet not so long as to absolve responsibility. If it was the last ten years, then they are years that we are in a sense responsible for. If it is the next ten years, then they are years we should certainly be responsible for.

In the next few minutes, I want to think about this responsibility and this change. The decade of the 1990s has been the decade of the 1990s has been the decade of an important kind of freedom. But we need to understand how.

To understand how, I want to begin long before the decade began. I want to begin where the Republic began, with a passage from a letter of Thomas Jefferson that, in an important way, captures both the hope and the error of our time. Said Jefferson:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself, but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possess the whole of it He who receives an idea from me, receives instruction himself without lessening mine; as he who lites his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement, or exclusive appropriation Inventions then cannot, in nature, be a subject of property.1

Jefferson's hope is the dream of the Enlightenment: That ideas, and their creativity, were subject to a different law of nature. Property, or ordinary property at least, gets consumed. If you harvest my field, I cannot. If you use my car, then I am unable to. Ordinary property is subject to these constraints of nature. To the dismal science of economics, which must use price to allocate the scarce, scarcity incents production.

But ideas are different. They live, as Jefferson said, according to different rules. He who receives an idea from me "receives instruction himself without lessening mine, as he who lites his taper at mine receives life without darkening me." Ideas spread without control, and culture and knowledge with it, because they live life under different rules. Nature protects ideas, since ideas cannot, in nature, be a subject of property.

It is important for us to think a bit about what this enlightenment picture was. For we are likely to miss the essence of its magic. We think of Jefferson as the idolizer of the yeoman farmer, frugal yet profitable in his small yet productive farms. But the part of Jefferson that I am talking about was not the farmer part. This part of Jefferson was the creator. This part of Jefferson thought the greatest in man came from his creativity. It came from his ability to build the new, in music, in art, in government. This part of Jefferson idolized the inspiration of genius, in all the ways that genius got expressed. This is the ideal of the Enlightenment - that education would inspire something new.

But out of what? Out of what do we build the new? From what resources? Using what ideas?

Here's where the economy that Jefferson spoke of becomes so important. We build new ideas out of old ideas. We create by taking what's been created before. We erect on top of foundations laid by others - a foundation of ideas laid by others. And a free society is that society where this building is something anyone can do. Ideas get to run free - that is their nature - and anyone gets to pick up an idea and carry it along.

This is the picture of science: Of thousands working in parallel on a common problem - whether the structure of the polio virus, or the cure for the common cold - thousands working, in different institutions, with different incentives, all allowed to carry on this work because nature makes it impossible to capture an idea, and keep it from others.