Cyberspace as Place, and the Tragedy of the Digital Anticommons

(Forwarded from MediaMentor list.)

-----Original Message-----
From: George [s] Lessard <[email protected]>
Date: Tue, 3 Feb 2004 17:58:07 -0600
Subject: [MediaMentor] Cyberspace as Place, and the Tragedy of the 
Digital Anticommons

Cyberspace as Place, and the Tragedy of the Digital Anticommons
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=306662

University of Pennsylvania - The 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.

Keywords: cyberspace regulation, cyberlaw, cognitive science
  JEL Classifications: E2
  Accepted Paper Series
Abstract has been viewed 2835 times

Contact Information for DAN HUNTER (Contact Author)

[email protected]                                              

(Email address for DAN HUNTER )


University of Pennsylvania - The Wharton School
3641 Locust Walk
Philadelphia, PA  19104-6365
United States
(215) 573-7154 (Phone)
(215) 573-2006 (Fax)


Suggested Citation

Hunter, Dan, "Cyberspace as Place, and the Tragedy of the Digital 
Anticommons". California Law Review, Forthcoming 
http://ssrn.com/abstract=306662
Download @ 
http://papers.ssrn.com/sol3/delivery.cfm/SSRN_ID306662_code020422670.pd
f?abstractid=306662







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