The internet is a semicommons

Fordham Law Review

Volumn 78, Issue 6, 2010, Pages 2799-2842

  Grimmelmann, James ^a  

^a NEW YORK LAW SCHOOL   (United States)

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EID: 77953574587     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (409)

1. DAVID Q. POST, IN SEARCH OF JEFFERSON'S MOOSE: NOTES ON THE STATE OF CYBERSPACE (2009).
2. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET-AND HOW TO STOP IT (2008).
3. See POST, supra note 1, at 116 ("How do you build a democratic system that would scale, that would get stronger as it got bigger, and bigger as it got stronger?... But like the American West of 1787, cyberspace is (or at least it has been) a Jeffersonian kind of place.").
4. See id. at 202 ("The perfect Jeffersonian world, then, is one that has as much protection for speech as it can have, but only as much protection for intellectual property as it needs. Sounds like cyberspace!").
5. See ZITTRAIN, supra note 2, at 71-74 (defining and analyzing generativity);
6. id. at 149 ("This book has explained how the Internet's generative characteristics primed it for extraordinary success-").
7. See generally Henry E. Smith, Semicommon Property Rights and Scattering in the Open Fields, 29 J. LEGAL STUD. 131 (2000) (introducing semicommons concept).
8. Id. at 131.
9. See Smith, supra note 6, at 145 ("[T]he open-field system is a mixture of common and private ownership, and the question is, why not one or the other?");
10. infra Part III.
11. See POST, supra note 1, at 80-86 (discussing layering);
12. ZITTRAIN, supra note 2, at 67-69 ("Layers facilitate polyarchies-");
13. infra Part IV. A.
14. See ZITTRAIN, supra note 2, at 142-43, 147-48 (discussing "netizenship" and "personal commitments" of Wikipedia editors);
15. infra Part IV. B. See generally ANDREW DALBY, THE WORLD AND WIKIPEDIA: HOW WE ARE EDITING REALITY (2009) (describing the history and norms of Wikipedia in detail).
16. See POST, supra note 1, at 103 ("Perhaps it was a coincidence that the network that became 'the Internet' was the one that operated this way.... I doubt it, though.");
17. Zittrain, supra note 2, at 30 ("The bundled proprietary model... had been defeated by the Internet model....").
18. See infra Part II. A.
19. See infra Part II. B.
20. See infra Part II. C.
21. POST, supra note 1, at 16-18.
22. Id. at 63-64.
23. See id. at 63-68
24. (citing THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (Frank Shuffelton ed., Penguin Books 1999) (1785)).
25. Or so Jefferson thought when he referred to the moose as a "species not existing in Europe." He was wrong; Alces aices also thrives in Scandinavia and Russia.
26. See VICTOR VAN BALLENBERGHE, IN THE COMPANY OF MOOSE 1 (2004) ("Simply put, moose are giant deer that live in the northern forests of Europe, Asia, and North America.").
27. See generally LEE ALAN DUGATKIN, MR. JEFFERSON AND THE GIANT MOOSE: NATURAL HISTORY IN EARLY AMERICA 81-100 (2009) (describing Jefferson's search for a moose specimen and his notalways-reliable research methods).
28. POST, supra note 1, at 63-68.
29. See id. at 110-16.
30. Id. at 209.
31. See Press Release, comScore, Inc., Global Internet Audience Surpasses One Billion Visitors, According to comScore (Jan. 23, 2009), http://www.comscore. com/Press-Events/Press-Releases/2009/l/Global-Internet-Audience-l-Billion/ %281anguage%29/eng-US.
32. Netcraft, December 2009 Web Server Survey, http://news.netcraft.com/ archives/2009/12/24/december-2009-web-server-survey.html (last visited Apr. 10, 2010);
33. see also The VeriSign Domain Report, DOMAIN NAME INDUSTRY BRIEF (VeriSign, Mountain View, Cal.), Dec. 2009, at 2, available at http://www.verisign. com/domain-name-services/domaininformation-center/domain- name-resources/domain-name-report-dec09.pdf (over 187 million registered domains).
34. See Posting of Jesse Alpert & Nissan Hajaj to Official Google Blog, http://googleblog.blogspot.com/2008/07/we-knew-web-was-big.html (July 25, 2008, 10:12 PDT).
35. CISCO SYS., INC., CISCO 2008 ANNUAL SECURITY REPORT 13 (2009), available at http://www.cisco.com/en/US/prod/collateral/vpndevc/securityreview 12-2.pdf.
36. Roger E. Bohn & James E. Short, HOW MUCH INFORMATION? 2009:
37. REPORT ON AMERICAN CONSUMERS app. B, at 32 (2009), available at http://hmi.ucsd.edu/pdf/HMI-2009-ConsumerReport-Dec9-2009.pdf.
38. See YouTube, YouTube Fact Sheet, http://www.youtube.com/t/fact-sheet (last visited Apr. 10, 2010) (reporting twenty hours of video uploaded per minute). My calculation assumes a forty-hour workweek. If you didn't stop to sleep or eat, you could watch a day's worth of YouTube videos in only three years and a few months.
39. Cf James Grimmelmann, Information Policy for the Library of Babel, 3 J. BUS. & TECH. L. 29, 38-40 (2008) (comparing the Internet to Borges's infinite Library of Babel).
40. See POST, supra note 1, at 80-99.
41. See id. at 126-41.
42. See id. at 107-17.
43. See id. at 116-17, 172-78 (discussing Jefferson's vision of the settlement of the American West).
44. See ZITTRAIN, supra note 2, at 19-35;
45. see also Jonathan L. Zittrain, The Generative Internet, 119 HARV. L. REV. 1974 (2006)..
46. ZITTRAIN, supra note 2, at 80-90.
47. See id. at 31 (discussing "procrastination principle" of deferring decisions by leaving architecture open initially);
48. cf. Carliss Y. Baldwin & Kim B. Clark, The Architecture of Participation: Does Code Architecture Mitigate Free Riding in the Open Source Development Model?, 52 MGMT. SCI. 1116 (2006) (discussing importance of "option values" in open source software projects).
49. POST, supra note 1, at 73-99.
50. Id. at 133-41, 178-86.
51. ZITTRAIN, supra note 2, at 80-90.
52. Id. at 90-96, 134-35, 141-48, 223-25.
53. See, e.g., POST, supra note 1, at 60 (titling one chapter, "Jefferson's Moose and the Problem of Scalel").
54. Id. at 61.
55. Haldane's essay itself links biological and political scale, concluding with a passage on the maximum size of a democratic state (increasing with technological change) and the impossibility of socialist governance of truly large states. J. B. S. Haldane, On Being the Right Size, 152 HARPER'S MAG. 424, 427 (1926) ("I find it no easier to picture a completely socialized British Empire or United States than an elephant turning somersaults or a hippopotamus jumping a hedge."). Had Haldane been exposed to the Internet, he might have noted that it has an inordinate fondness for pictures of cats.
56. The major networks that carry the heaviest volumes of Internet traffic are referred to as "backbones." See, e.g., ZITTRAIN, supra note 2, at 158. Note the use of the plural.
57. See POST, supra note 1, at 68-79.
58. The intuition, as Henry Smith notes, goes back to Aristotle.
59. See Henry E. Smith, Governing Water: The Semicommons of Fluid Property Rights, 50 ARIZ. L. REV. 445, 451 n. 25 (2008)
60. y (citing ARISTOTLE, THE POLITICS AND THE CONSTITUTION OF ATHENS 33 (Stephen Everson ed., Benjamin Jowett trans., 1996)).
61. See infra Part II. B.
62. ZITTRAIN, supra note 2, at 148 ("Wikipedia is the canonical bee that flies despite scientists' skepticism that the aerodynamics add up. "
63. (citing YOCHAI BENKLER, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM 76-80 (2006))).
64. In his conclusion, Post applies his own biological metaphor to Wikipedia, writing that Wikipedia might well be "a pretty good moose, something we could bring with us... to show to people of the Old World." POST, supra note 1, at 209.
65. See generally RICHARD CORNES & TODD SANDLER, THE THEORY OF EXTERNALITIES, PUBLIC GOODS, AND CLUB GOODS 8-13 (1986);
66. Charlotte Hess & Elinor Ostrom, Ideas, Artifacts, and Facilities: Information as a Common-Pool Resource, LAW & CONTEMP. PROBS., Winter/Spring 2003, at 111, 119-21.
67. See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. 347, 354-55 (1967).
68. Excludability, by making it possible to "own" a resource, thus makes it possible to transact over it. See Steven N. S. Cheung, The Structure of a Contract and the Theory of a Non-exclusive Resource, 13 J. L. & ECON. 49, 64-67 (1970).
69. See, e.g., Harold Demsetz, The Public Production of Private Goods, 13 J. L. & ECON. 293, 293-94 (1970) (giving example involving slaughterhouse that supplies both meat and leather).
70. Garrett Hardin, The Tragedy of the Commons, 162 SCIENCE 1243 (1968).
71. Id. at 1244 (omission in original).
72. Others had made a similar observation about another scarce natural resource that functioned as a commons: fisheries. See Peder Anderson, " On Rent of Fishing Grounds": A Translation of Jens Warming's 1911 Article, with an Introduction, 15 HIST. POL. ECON. 391 (1983);
73. H. Scott Gordon, The Economic Theory of a Common-Property Resource: The Fishery, 62 J. POL. ECON. 124 (1954);
74. see also Cheung, supra note 48.
75. Hardin, supra note 50, at 1248.
76. Id. at 1247.
77. Id. at 1245.
78. See Demsetz, supra note 48, at 355.
79. See CORNES & SANDLER, supra note 47, at 43;
80. Hardin, supra note 50, at 1247 ("Consider bank-robbing. The man who takes money from a bank acts as if the bank were a commons. How do we prevent such action?" (emphasis added)).
81. Henry E. Smith, Exclusion Versus Governance: Two Strategies for Delineating Property Rights, 31 J. LEGAL STUD. S453, S454-55 (2002).
82. Id. at S454.
83. Id. at S455.
84. Hardin, supra note 50, at 1247.
85. See ELINOR OSTROM, GOVERNING THE COMMONS 13-15 (1990).
86. Id. at 51-88.
87. See id. at 143-78 (discussing "institutional failures and fragilities").
88. See id. at 88-102.
89. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION: PUBLIC GOODS AND THE THEORY OF GROUPS 22-36 (1971).
90. See OSTROM, supra note 62, at 91-92.
91. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 15-40, 177-82 (1991).
92. See Hess & Ostrom, supra note 47, at 120.
93. This arrangement is also described in the literature as a "limited-access commons, " see, e.g., Smith, supra note 58, at S458, or "limited common property, "
94. see, e.g., Carol M. Rose, The Several Futures of Property: Of Cyberspace and Folk Tales, Emission Trades and Ecosystems, 83 MINN. L. REV. 129, 132 (1998).
95. OSTROM, supra note 62, at 42-45, 92-100.
96. See, e.g., BROADBAND WORKING GROUP, MASS. INST, OF TECH. COMMC'N FUTURES PROGRAM, THE BROADBAND INCENTIVE PROBLEM 2 (2005), available at http://cfp. mit.edu/docs/incentive-wp-sept2005.pdf ("The broadband value chain is headed for a train wreck-The broadband locomotive left the station with a critical missing piece: the incentive for network operators to support many of the bandwidth-intensive innovations planned by upstream industries and users.");
97. Bret Swanson, The Coming Exaflood, WALL ST. J., Jan. 20, 2007, at All ("Today's networks are not remotely prepared to handle this exaflood.").
98. See, e.g., Kim Hart, Shutting Down Big Downloaders, WASH. POST, Sept. 7, 2007, at Al ("Comcast has punished some transgressors by cutting off their Internet service, arguing that excessive downloaders hog Internet capacity and slow down the network for other customers.").
99. See Eric Goldman, Wikipedia's Labor Squeeze and Its Consequences, 8 J. ON TELECOMM. & HIGH TECH. L. 157, 159-61 & n. l2 (2010).
100. Lior Jacob Strahilevitz, Wealth Without Markets?, 116 YALE L. J. 1472, 1493-504 (2007) (reviewing Benkler, supra note 46) ("Taken together, these challenges are daunting, and they might push social production to the peripheries of the new economy.").
101. See, e.g., Farhad Manjoo, Do You Think Bandwidth Grows on Trees?, SLATE, APR. 14, 2009, http://www.slate.com/id/2216162/("YouTube has to pay for a gargantuan Internet connection to send videos to your computer and the millions of others who are demanding the most recent Dramatic Chipmunk mash-up.... [N]ot even Google can long sustain a company that's losing close to half a billion dollars a year.").
102. See, e.g., ZITTRAIN, supra note 2, at 43-54 (describing the "untenable" state of online security).
103. Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 MINN. L. REV. 917, 945-46 (2005). To be more precise, as Brett Frischmann explains, goods vary in their capacity to accommodate multiple uses. But even a good with a finite capacity can still be effectively nonrivalrous if that capacity is also renewable.
104. Id. at 950-56. A stretch of highway may be able to accommodate 2000 cars per hour, but its use at 6:00 a.m. has essentially no effect on its ability to accommodate cars at 6:00 p. m. As long as we're beneath the level of use at which adding cars would create a traffic jam now, the highway is nonrival. Yochai Benkler has developed this point into a theory of "sharable" goods.
105. See Yochai Benkler, Sharing Nicely: On Shareable Goods and the Emergence of Sharing as a Modality of Economic Production, 114 YALE L. J. 273, 330-44 (2004).
106. See WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 19-21 (2003).
107. See, e.g., U. S. CONST, art. I, § 8, cl. 8 ("To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (emphasis added)).
108. See, e.g., LANDES & POSNER, supra note 79, at 112-13.
109. See Trotter Hardy, Property (and Copyright) in Cyberspace, 1996 U. CHI. LEGAL F. 217, 221-28.
110. See Niva Elkin-Koren, Making Room for Consumers Under the DMCA, 22 BERKELEY TECH. L. J. 1119, 1119-20 (2007).
111. See Demsetz, supra note 49, at 300-03 (arguing that the resulting equilibrium "allocates resources efficiently to the production of the public good").
112. There are, however, other important ways in which they differ. Because these nonrival goods have high fixed (or first-copy) costs but very low marginal costs, there's an enormous competitive advantage to being the bigger competitor in a market. Your average costs will be lower than your competitors, helping you undercut their prices and seize the whole of the market. This gives these markets-one kind of "network industry"-distinctive economics and creates special managerial and regulatory challenges.
113. See generally CARL SHAPIRO & HAL R. VARIAN, INFORMATION RULES: ASTRATEGIC GUIDE TO THE NETWORK ECONOMY (1999);
114. OZ SHY, THE ECONOMICS OF NETWORK INDUSTRIES (2001). The semicommons analysis developed in this essay may have implications for these industries.
115. It also has other unfortunate side effects: it cripples otherwise useful devices and smothers innovation.
116. See Wendy Seltzer, The Imperfect Is the Enemy of the Good: Anticircumvention Versus Open Development, 25 BERKELEY TECH. L. J. (forthcoming 2010).
117. In a world in which she cannot price discriminate perfectly and costlessly, that is. If she could, perfect price discrimination would also in theory lead to an efficient outcome, one in which she appropriates all the value of the good, rather than other users.
118. See James Boyle, Cruel, Mean, or Lavish? Economic Analysis, Price Discrimination and Digital Intellectual Property, 53 VAND. L. REV. 2007, 2021-35 (2000) (discussing "Econo-World" view of price discrimination). But that world isn't our world, and, in ours, price discrimination is costly and imperfect, leaving us to argue over second bests.
119. See, e.g., Yochai Benkler, An Unhurried View of Private Ordering in Information Transactions, 53 VAND. L. REV. 2063, 2072 (2000).
120. See Niva Elkin-Koren, Copyright Policy and the Limits of Freedom of Contract, 12 BERKELEY TECH. L. J. 93, 99-100 (1997).
121. See Shyamkrishna Balganesh, Forseeability and Copyright Incentives, 122 HARV. L. REV. 1569, 1577-79 (2009).
122. See R. H. Coase, The Lighthouse in Economics, 17 J. L. & ECON. 357, 360-62 (1974) (discussing British lighthouse system, maintained by Trinity House, a governmental body). But see id. at 363-72 (discussing history of private lighthouses in Britain).
123. See, e.g., MASHA GESSEN, PERFECT RIGOR: AGENIUS AND THE MATHEMATICAL BREAKTHROUGH OF THE CENTURY, at vii-xi (2009) (predicting that the $1, 000, 000 prize for proof of Poincare Conjecture is likely to be refused by mathematician who proved it);
124. DAVA SOBEL, LONGITUDE: THE TRUE STORY OF A LONE GENIUS WHO SOLVED THE GREATEST SCIENTIFIC PROBLEM OF HIS TIME 16 (2006) (describing the £20, 000 prize offered in 1714 for discovery of an accurate method of determining longitude while at sea).
125. On the other hand, having the government pay for it doesn't solve the problem of deciding how much to pay for it. Here, it's even more difficult to decide how much the government should spend for the sheep photograph. Since the photograph will ultimately be given away for free, the government will find it well-nigh impossible to learn how much each individual would have been willing to pay for it.
126. See Paul A. Samuelson, The Pure Theory of Public Expenditure, 36 REV. ECON. & STAT. 387, 388-89 (1954).
127. See Frischmann, supra note 78, at 946-59.
128. Indeed, one of the other virtues of commons theory is its willingness to recognize that "consumers" and "producers" are often the exact same people, that individuals move between these roles seamlessly in their cultural, social, and intellectual lives.
129. See, e.g., Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N. Y. U. L. REV. 1, 4 (2004) ("Freedom of speech... is interactive because speech is about speakers and listeners, who in turn become speakers themselves.... [Individual speech acts are part of a larger, continuous circulation. "). The idea, however, has led to some unfortunate portmanteaus.
130. See, e.g., DON TAPSCOTT & ANTHONY D. WILLIAMS, WDONOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 124-27 (2008) ("prosumer");
131. Erez Reuveni, Authorship in the Age of the Conducer, 54 J. COPYRIGHT SOC'Y U. S. 285, 286-87 (2007) ("conducer").
132. Cf. Int'l News Serv. v. Associated Press, 248 U. S. 215, 250 (1918) (Brandeis, J., dissenting) ("The general rule of law is, that the noblest of human productions-knowledge, truths ascertained, conceptions, and ideas-become, after voluntary communication to others, free as the air to common use.").
133. See generally JAMES BOYLE, THE PUBLIC DOMAIN: ENCLOSING THE COMMONS OF THE MIND (2008).
134. See Frischmann, supra note 78, at 990-1003 (arguing that this claim is likely to hold for certain kinds of infrastructural information).
135. See, e.g., Yochai Benkler, Coase's Penguin, or, Linux and The Nature of the Firm, 112 YALE L. J. 369, 423-36 (2002).
136. See BENKLER, supra note 46, at 59-90;
137. STEVEN WEBER, THE SUCCESS OF OPEN SOURCE (2004).
138. The phrase comes from Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. CHI. L. REV. 711, 768 (1986).
139. See ERIC S. RAYMOND, THE CATHEDRAL AND THE BAZAAR: MUSINGS ON LINUX AND OPEN SOURCE BY AN ACCIDENTAL REVOLUTIONARY 33-36 (2001).
140. Eric Raymond gives the metaphor of a "magic cauldron" that produces soup ex nihilo, then argues that open source software is that cauldron made real.
141. See id. at 115.
142. BENKLER, supra note 46;
143. Benkler, supra note 98, at 415 ("[T]here are increasing returns to the scale of the pool of individuals, resources, and projects to which they can be applied.").
144. The inspiration for this term comes from Carol Rose's remarkable Comedy of the Commons, supra note 100.
145. See, e.g., Benkler, supra note 98, at 404-05.
146. See SCOTT ROSENBERG, SAY EVERYTHING: HOW BLOGGING BEGAN, WHAT IT'S BECOMING, AND WHY IT MATTERS 163-97 (2009).
147. Cf Eben Moglen, Anarchism Triumphant: Free Software and the Death of Copyright, FIRST MONDAY, Aug. 2, 1999, http://firstmonday.org/htbin/cgiwrapftin/ ojs/index.php/frn/article/view/684/594 ("So Moglen's Metaphorical Corollary to Faraday's Law says that if you wrap the Internet around every person on the planet and spin the planet, software flows in the network. It's an emergent property of connected human minds that they create things for one another's pleasure and to conquer their uneasy sense of being too alone.").
148. See, e.g., ZITTRAIN, supra note 2, at 133 (closure of Nupedia);
149. Randall Stross, Encyclopedic Knowledge, Then vs. Now, N. Y. TIMES, May 3, 2009, at BU3 (end of Encarta);
150. On Wikipedia, On Citizendium, http://onwikipedia.blogspot.com/2010/01/ oncitizendium.html (Jan. 18, 2010, 16:06) ("stagnat[ion]" of Citizendium);
151. Erick Schonfeld, Poor Google Knol Has Gone from a Wikipedia Killer to a Craigslist Wannabe, TECHCRUNCH, Aug. 11, 2009, http://techcrunch.com/2009/08/ll/ poor-google-knol-hasgone-from-a-wikipedia-killer-to-a-craigslist-wannabe/ (decline of Knol).
152. POST, supra note 1, at 133-41.
153. ZITTRALN, supra note 2, at 141.
154. These same standards were in many cases developed in open participatory processes, where all-important decisions were made on a consensus basis.
155. See MILTON L. MUELLER, RULING THE ROOT: INTERNET GOVERNANCE AND THE TAMING OF CYBERSPACE 89-94 (2002).
156. See Tim O'Reilly, What Is Web 2.0, O'REILLY, Sept. 30, 2005, http://oreilly.com/web2/archive/what-is-web-20.html;
157. cf. ZITTRAIN, supra note 2, at 181-85 (discussing "API neutrality").
158. See generally GLYN MOODY, REBEL CODE: THE INSIDE STORY OF LINUX AND THE OPEN SOURCE REVOLUTION (2001).
159. See supra Part II. B.
160. See supra Part II. C.
161. Smith, supra note 6, at 131-32.
162. See id. at 168.
163. Id. at 132. Yes, sheep and pastures again. Hardin's tragic commons and Ostrom's potentially sustainable one are the same as Smith's semicommons, just theorized differently.
164. Id.
165. Id. at 135-36.
166. See id. at 136-38.
167. See Robert C. Ellickson, Property in Land, 102 YALE L. J. 1315, 1327-30 (1993).
168. And sometimes during them, as required by crop rotation.
169. Smith, supra note 6, at 132, 135.
170. Id. at 136.
171. Id. at 138-41.
172. Id. at 138-39.
173. Id. at 149.
174. Id. at 140-41.
175. Id. at 141.
176. Id. at 141-42.
177. Id. at 142 & n. 27.
178. Id.
179. Id. at 161-67.
180. Id. at 146-54.
181. Id. at 147-48.
182. See infra Part IV. A.
183. See infra Part IV. C.
184. See Rackspace, Definitions and Technical Jargon of the Hosting Industry, http://www.rackspace.corn/information/hostingl01/definitions.php (last visited Apr. 10, 2010) ("In a managed hosting environment, the provider owns the data centers, the network, the server and other devices, and is responsible for deploying, maintaining and monitoring them.... Dedicated Hosting... allows customers to lease pre-configured, dedicated equipment and connectivity from the provider.").
185. ® Network today operates as one of the largest IP transit networks in North America and Europe.").
186. To be clear, I'm focusing more on tangible communications platform as a common use, rather than the intangible information exchanged on it. The nonrivalry of information and the Comedic story explain why the Internet is so valuable as a communications platform; they don't actually make the Internet into information or eliminate the challenges of rivalry. We've faced the problem of exchanging nonrival information over rival communications infrastructure for a long time; the Internet is just better at the task than its predecessors.
187. See generally Frischmann, supra note 78, at 1005-22 (describing the Internet as infrastructure). Robert Heverly has written an important and illuminating article on how intellectual property law makes information a semicommons of positively interacting private and common uses.
188. Robert A. Heverly, he Information Semicommons, 18 BERKELEY TECH. L. J. 1127 (2003);
189. see also Lydia Pallas Loren, Building a Reliable Semicommons of Creative Works: Enforcement of Creative Commons Licenses and Limited Abandonment of Copyright, 14 GEO. MASON L. REV. 271 (2007);
190. Robert P. Merges, A New Dynamism in the Public Domain, 71 U. CHI. L. REV. 183 (2004) (describing Creative Commons as a "semicommons" in Heverly's sense).
191. See generally LAURA DENARDIS, PROTOCOL POLITICS: THE GLOBALIZATION OF INTERNET GOVERNANCE (2009) (discussing governance role of Internet standards).
192. See 1 DOUGLAS COMER, INTERNETWORKING WITH TCP/IP: PRINCIPLES, PROTOCOLS, AND ARCHITECTURE (5th ed. 2006) (describing IP datagram format and routing); INFO. SCIS. INST., RFC 791, INTERNET PROTOCOL: DARPA INTERNET PROGRAM PROTOCOL SPECIFICATION § 2.3 (1981), http://tools.ietf.org/html/rfc791 ("The function or purpose of Internet Protocol is to move datagrams through an interconnected set of networks. This is done by passing the datagrams from one internet module to another until the destination is reached.").
193. See generally DAVID GOURLEY & BRIAN TOTTY, HTTP: THE DEFINITIVE GUIDE (2002) (describing HTTP standard).
194. See JOHN RHOTON, PROGRAMMER'S GUIDE TO INTERNET MAIL: SMTP, POP, IMAP, AND LDAP (2000);
195. JONATHAN B. POSTEL, RFC 821, SIMPLE MAIL TRANSFER PROTOCOL (1982), http://tools.ietf.org/html/rfc821 [hereinafter RFC 821] (detailing SMTP standard).
196. See POST, supra note 1, at 101-03;
197. ZITTRAIN, supra note 2, at 26-35.
198. Cf. Henry E. Smith, Governing the Tele-Semicommons, 22 Yale J. on Reg. 289 (2005) (applying semicommons theory to argue against the use of common property treatment of individual physical network elements).
199. See Joris Evers, Computer Crime Costs $67 Billion, FBI Says, CNET NEWS, Jan. 19, 2006, http://news.cnet.com/Computer-crime-costs-67-billion,-FBI- says/2100-7349-3-6028946.html.
200. See, e.g., ZITTRAIN, supra note 2, at 159 (advocating "a simple dashboard that lets the users of PCs make quick judgments about the nature and quality of the code they are about to run"). Such sentiments assume that users have the sort of autonomy over their PCs that a private property owner would, a principle Zittrain strongly endorses.
201. See id. at 108-09.
202. See Andrew Odlyzko & Benjamin Tilly, A Refutation of Metcalfe's Law and a Better Estimate for the Value of Networks and Network Interconnections 4 (Mar. 2, 2005) (unpublished manuscript), available at http://www.dtc.umn. edu/-odlyzko/doc/metcalfe.pdf (arguing that the value of an n-user network grows as n log n);
203. see also Bob Briscoe et al., Metcalfe's Law Is Wrong, IEEE Spectrum, July 2006, at 35 (later version of Odlyzko & Tilly article).
204. Lauren Gelman observes that users often post sensitive information in publicly accessible ways online. Her point is that public accessibility allows you to reach others who share your interests, even when you couldn't identify them at the time of the posting. The value of reaching them can outweigh even significant privacy risks of being noticed by outsiders.
205. See Lauren Gelman, Privacy, Free Speech, and "Blurry-Edged" Social Networks, 50 B. C. L. REV. 1315, 1334-35 (2009).
206. Paul Ohm has pointed out that in many cases, just trying to meter or monitor these information flows-a necessary step in privatizing them-would in many circumstances be ruinously costly.
207. See Paul Ohm, The Rise and Fall of Invasive ISP Surveillance, 2009 U. ILL. L. REV. 1417.
208. See, e.g., Dan Hunter, Cyberspace as Place and the Tragedy of the Digital Anticommons, 91 CAL. L. REV. 439, 500-14 (2003).
209. See Chris Anderson, Free! Why $0.00 Is the Future of Business, WIRED, Mar. 2008, at 140.
210. See, e.g., Jesse Kirdahy-Scalia, One Year After Capping Bandwidth, Comcast Still Offers No Meter, OPEN MEDIA BOSTON, Aug. 21, 2009, http://www.openmediaboston.org/node/860.
211. See supra notes 22-23 and accompanying text.
212. Smith, supra note 6, at 132.
213. ZITTRAIN, supra note 2, at 11-18.
214. Id. at 19-35.
215. Id. at 101-04.
216. Jonathan Zittrain, Op-Ed., Lost in the Cloud, N. Y. TIMES, July 20, 2009, at A19.
217. ZITTRAIN, supra note 2, at 165.
218. ZITTRAIN, supra note 33, at 1990.
219. Smith, supra note 6, at 138-39.
220. See supra Part II. A.
221. Smith, supra note 6, at 146-54 (arguing that border-setting semicommons explanation of scattering is superior to other economic explanations).
222. See 1 W. RICHARD STEVENS, TCP/IP ILLUSTRATED: THE PROTOCOLS 1-6 (1994);
223. ANDREW S. TANENBAUM, COMPUTER NETWORKS 26 (4th ed. 2003);
224. TELECOMM. STANDARDIZATION SECTOR, INT'L TELECOMM. UNION, ITU-T RECOMMENDATION X.200, INFORMATION TECHNOLOGY-OPEN SYSTEMS INTERCONNECTION-BASIC REFERENCE MODEL: THE BASIC MODEL § 5.2, at 6-8 (1994), http://www.itu.int/ rec/dologin-pub.asp? lang=e&id=T-REC-X.200-199407-I!!PDF-E&type=items.
225. See STEVE MCCONNELL, CODE COMPLETE: A PRACTICAL HANDBOOK OF SOFTWARE CONSTRUCTION 94-108 (2d ed. 2004);
226. HERBERT A. SIMON, THE SCIENCES OF THE ARTIFICIAL 195-200 (3d ed. 1996).
227. See TANENBAUM, supra note 167, at 37-71.
228. To be more precise, this claim would also include the ancillary routing protocols, such as the Border Gateway Protocol (BGP) and the Routing Information Protocol (RIP), that tell IP-implementing systems which other computers they should forward IP traffic through.
229. See COMER, supra note 143, at 249-93 (describing BGP and RIP).
230. The current version of IP in broad use is version 4; there is a worldwide effort underway to upgrade to version 6. But IP's universality makes this upgrade both technically challenging and politically contentious: any widely adopted change to IP will change the nature of the Internet itself.
231. See DENARDIS, supra note 142, at 4;
232. LAWRENCE LESSIG, CODE: AND OTHER LAWS OF CYBERSPACE 207-09 (1999) ("[W]e again will have to decide whether this architecture of regulabiliry is creating the cyberspace we want. A choice. A need to make a choice.").
233. See James Grimmelmann & Paul Ohm, Dr. Generative-Or How I Learned To Stop Worrying and Love the iPhone, 69 MD. L. REV. (forthcoming 2010) (book review).
234. See, e.g., LAWRENCE LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A CONNECTED WORLD 23-25 (2001);
235. Lawrence B. Solum & Minn Chung, The Layers Principle: Internet Architecture and the Law, 79 NOTRE DAME L. REV. 815, 818-20 (2004);
236. Kevin Werbach, A Layered Model for Internet Policy, 1 J. ON TELECOMM. & HIGH TECH. L. 37, 57-60 (2002);
237. Timothy Wu, Application-Centered Internet Analysis, 85 VA. L. REV. 1163, 1188-93 (1999).
238. See Solum & Chung, supra note 173, at 838-44 (discussing coexistence of multiple layers).
239. See ZITTRAIN, supra note 2, at 67-71 (discussing "hourglass architecture" of IP).
240. See D. WAITZMAN, RFC 1149, A STANDARD FOR THE TRANSMISSION OF IP DATAGRAMS ON AVIAN CARRIERS (1990), http://tools.ietf.org/html/rfcll49 (explaining how to implement IP using carrier pigeons).
241. See POST, supra note 1, at 82-89 (discussing the simplicity of IP).
242. See M. MITCHELL WALDROP, THE DREAM MACHINE: J. C. R. LICKLIDER AND THE REVOLUTION THAT MADE COMPUTING PERSONAL 379-80 (2001) (discussing how IP's simplicity made it easier to connect networks and aided its adoption).
243. See David Isenberg, Rise of the Stupid Network, J. HYPERLINKED ORG., June 1997, http://www.hyperorg.com/misc/stupidnet.html ("The Stupid Network would let you send mixed data types at will.... You would not have to ask your Stupid Network provider for any special network modifications.... A rudimentary form of the Stupid Network-the Internet-is here today.").
244. See J. H. Saltzer et al., End-to-End Arguments in System Design, 2 ACM TRANSACTIONS ON COMPUTER SYS. 277, 278 (1984).
245. For example, network A will hand off packets destined for network B's users as soon as possible, so that network B does the bulk of the work to deliver them. See JONATHAN E. NUECHTERLEIN & PHILIP J. WEISER, DIGITAL CROSSROADS: AMERICAN TELECOMMUNICATIONS POLICY IN THE INTERNET AGE 42-44 (2005).
246. See ZITTRAIN, supra note 2, at 36-51. Of course, we might classify these contentlevel costs as burdens on the private resources of users' attention, but saying that this is a cost imposed on the commons, even if less descriptively precise, is clearer in terms of pinpointing the problem.
247. See David Pogue, On the Job, a Spam Fighter Is Learning, N. Y. TIMES, Mar. 30, 2006, at C1 (describing the Spam Cube, a home device to filter spam). The Spam Cube, like other spam-fighting technologies, is costly in two different ways. It costs $150, and along with the spam it catches, it also blocks legitimate emails.
248. Id.
249. See ReCAPTCHA, What Is a CAPTCHA?, http://recaptcha.net/captcha.html (last visited Apr. 10, 2010) ("A CAPTCHA is a program that can generate and grade tests that humans can pass but current computer programs cannot.").
250. But CAPTCHAs are costly, too. See BaltTech, Towson U., National Federation of the Blind Re-Invent CAPTCHA, http://weblogs.bdtimoresun. com/news/tecrmology/2009/ll/towso (Nov. 18, 2009, 8:18 EST) (quoting computer science professor Jonathan Lazar as saying, "[b]asically, computer viruses are twice as successful as blind people on the old captchas.").
251. See WILLIAM R. CHESWICK ET AL., FIREWALLS AND INTERNET SECURITY: REPELLING THE WILY HACKER, at xviii (2d ed. 2003) (defining "firewall gateway" as a dedicated computer that is the only one on a network to communicate with the outside world);
252. id. at 173-96 (describing how firewalls can provide specialized security). It's costly to add a dedicated computer to a network for no other purpose than security-to say nothing of the expense of configuring and monitoring it, or buying books like Firewalls and Internet Security.
253. " And yet it moves." STEPHEN HAWKING, ON THE SHOULDERS OF GIANTS: THE GREAT WORKS OF PHYSICS AND ASTRONOMY 393 (2002) (quoting Galileo Galilei). "[M]ost historians regard the story as a myth."
254. Id.
255. Solum & Chung, supra note 173, discuss at length the policy virtues of respecting boundaries between layers.
256. Peter H. Lewis, Limiting a Medium Without Boundaries, N. Y. TIMES, Jan. 15, 1996, at D4.
257. Solum & Chung, supra note 173, at 829-31, 936-42.
258. This is not to enter the debates on network neutrality as a matter of policy. My point is merely that layering as a form of boundary-setting limits certain forms of self-interested behavior by private owners; evaluating whether this is a good thing or a bad thing would require more analysis than can fit in this margin.
259. This is another layered system, but note that the private/common division is different than the one discussed in the previous section. Here, the system is held in common at the content layer, but is essentially private at every lower layer.
260. The Laboratorium, http://laboratorium.net/(last visited Apr. 10, 2010).
261. See Posting of Chad Hurley to YouTube Blog, http://youtube-global. blogspot.com/2009/10/y000000000utube.html (Oct. 9, 2009).
262. In this respect, these particular Internet semicommons are more susceptible to Demsetzian explanations than many offline property systems and legal regimes, where the problem of collective action looms larger.
263. See Harold Demsetz, Toward a Theory of Property Rights, 57 AM. ECON. REV. PROC. 347 (1967) (describing evolution of property rights as efficient response when value from more intensive use increases). Scholars, however, have raised difficult questions about the mechanism by which this evolution would take place.
264. See, e.g., Saul Levmore, Two Stories About the Evolution of Property Rights, 31 J. LEGAL STUD. S421, S425-33 (2002) (noting ambiguity between optimistic Demsetzian story of the evolution of efficient property regimes and pessimistic story about selfish interest groups capturing value for themselves). A UGC site, however, as a resource, doesn't preexist the semicommons form (so that its users can hardly be accused of appropriating a commons for their exclusive use), and its users make individual voluntary decisions to take part when the rewards outweigh the costs (thus providing a straightforward mechanism for the collective decision to use a particular governance regime). This isn't to say that UGC sites are free of interest-group dynamics, or that they don't face collective action dilemmas, only that their initial development of a property system may pose less of a puzzle than the development of property systems in purely tangible online resources.
265. See ROSENBERG, supra note 106, at 178-85.
266. Sometimes, as with Twitter, the ad revenue isn't there yet (and may not ever be, if the skeptics are to be believed), but the prospect of monetizing the eyeballs justifies the upfront expenses of building the community.
267. See A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 896, 902, 921-22 (N. D. Cal. 2000)
268. (basing a holding of vicarious copyright infringement on the argument that although Napster had no present revenue, a larger user base would give it greater future revenue potential), affd in part, rev'd in part, 239 F.3d 1004 (9th Cir. 2001).
269. Cf. Anderson, supra note 154, at 146.
270. Lest this seem unremarkable, keep in mind that it would be nearly inconceivable for an Internet backbone provider to decide sua sponte that it needed to block traffic from a particular IP address, and that when Comcast started blocking particular traffic, it drew an FCC investigation and injunctive relief. Formal Complaint of Free Press & Pub. Knowledge Against Comcast Corp. for Secretly Degrading Peer-to-Peer Applications, 23 F. C. C. R. 13, 028 (2008).
271. See Google Help, YouTube Glossary: Flag as Inappropriate, http://www.google.com/support/youtube/bin/answer.py?hl=en&answer=95403 (last visited Apr. 10, 2010).
272. See, e.g., Wikipedia: Blocking IP Addresses, http://en. wikipedia.org/wiki/Wikipedia:Blocking-IP-addresses (last visited Apr. 10, 2010).
273. See Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 HARV. J. L. & TECH. 495, 501-06 (1997) (discussing role played by amateur "sysops" of online forums, newsgroups, and bulletin boards in fostering community). Zittrain's message in 1997 was pessimistic; he saw the sysop as a dying breed presiding over fragile communities. The Future of the Internet is far more optimistic about the potential of bottom-up collaboration and altruistic community creation in creating a healthy online society. One possible difference between then and now, I would submit, is that the benefits of linking these communities together on the Internet-putting the "commons" in "semicommons"-are much clearer today. Zittrain's invocation of the "sysop" also leads us off into the world of bulletin-board systems (or "BBSes"). Time and space constraints don't permit me to discuss them in detail as an additional example of an online organizational form. Their basic model, however-privately owned servers, connected to the telephone network, accessible to anyone who wished to dial in via modem-fits the basic semicommons pattern described in this essay, and their history also illustrates the applicability of Smith's model. For more on BBSes
274. see generally BBS: THE DOCUMENTARY (Bovine Ignition Systems 2005); Textfiles.com, History, http://www.textfiles.com/history/(last visited Apr. 10, 2010).
275. See, e.g., Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N. Y. U. L. REV. 1 (2004) (discussing censorship powers of platform owners);
276. James Grimmelmann, Saving Facebook, 94 IOWA L. REv. 1137, 1192-95 (2009) (discussing platform lock-in). There's also the larger question of the proper division of value between private owner and commons users. One could argue that the platform owner who becomes rich off of user contributions is engaged in a form of digital exploitation.
277. See, e.g., Søren Mark Petersen, Loser Generated Content: From Participation to Exploitation, FIRST MONDAY, Mar. 6, 2008, http://www.uic.edu/ htbin/cgiwrap/bin/ojs/index.php/fin/article/view/2141/1948. As this is a normative question, not an analytic one, I put it aside for the time being.
278. Craigslist, Flags and Community Moderation, http://www.craigslist.org/ about/help/flags-and-community-moderation (last visited Apr. 10, 2010).
279. See ZITTRAIN, supra note 2, at 131-42 (discussing Wikipedia).
280. Louise Story & Brad Stone, Facebook Retreats on Online Tracking, N. Y. TIMES, Nov. 30, 2007, at C1.
281. See generally DAVID WEINBERGER, SMALL PIECES LOOSELY JOINED: HOW THE WEB SHOWS US WHO WE REALLY ARE (2002) (describing the Internet's success in terms of this loose coupling of small components in multiple domains).
282. See ROSENBERG, supra note 106, at 205-06;
283. Posting of James Grimmelmann to LawMeme, http://lawmeme.research.yale. edu/modules.php?name=New&file=print&sid=1155 (June 18, 2003, 4:03 EDT).
284. See Posting of Deepak Thomas and Vineet Buch to Startup Review, http://www.startup-review.com/blog/youmbe-ase-study-widget-marketing-comes-of- age.php (Mar. 18, 2007).
285. See SIMON, supra note 168, at 197-205 (describing common pattern of tightly coupled modules themselves loosely coupled to each other);
286. Mark S. Granovetter, The Strength of Weak Ties, 78 AM. J. SOC. 1360 (1973) (describing power of loose links to bridge different social groups).
287. This point may have implications for Zittrain's goal of stopping malware through "suasion" and "experimentation. " ZITTRAIN, supra note 2, at 173. Zittrain's discussion of the challenges and goals of the StopBadware project clearly recognizes the dangers of both too much and not enough private control, at multiple scales.
288. Id. at 168-73. Sites experimenting with security policies in an informed way are private and Tragic. Internetwide monitoring and information-sharing are common and Comedic.
289. See id.
290. See Wikipedia: WikiProject, http://en. wikipedia.org/wiki/WikiProject (last visited Apr. 10, 2010) ("A WikiProject is a collection of pages devoted to the management of a specific topic or family of topics within Wikipedia; and, simultaneously, a group of editors who use those pages to collaborate on encyclopedic work.").
291. On the technology and operation of Usenet (sometimes also written as "USENET')
292. see generally JENNY A. FRISTUP, USENET: NETNEWS FOR EVERYONE (1994);
293. MARK HARRISON, THE USENET HANDBOOK: A USER'S GUIDE TO NETNEWS (1995);
294. ED KROL, THE WHOLE INTERNET: USER'S GUIDE & CATALOG (2d ed. 1994);
295. TIM O'REILLY & GRACE TODINO, MANAGING UUCP AND USENET (10th ed. 1992);
296. and BRYAN PFAFFENBERGER, THE USENET BOOK: FINDING, USING, AND SURVIVING NEWSGROUPS ON THE INTERNET (1994). For discussion of its culture and sociology
297. see generally MICHAEL HAUBEN & RHONDA HAUBEN, NETIZENS: ON THE HISTORY AND IMPACT OF USENET AND THE INTERNET (1997);
298. HOWARD RHEINGOLD, THE VIRTUAL COMMUNITY: HOMESTEADING ON THE ELECTRONIC FRONTIER 117-31 (1993);
299. and CLAY SHIRKY, VOICES FROM THE NET 80-89 (1995). Within the law review literature
300. see generally A. Michael Froomkin, HabermasDiscourse.net: Toward a Critical Theory of Cyberspace, 116 HARV. L. REV. 749, 821-31 (2003);
301. Paul K. Ohm, On Regulating the Internet: Usenet, a Case Study, 46 UCLA L. REV. 1941 (1999);
302. David G. Post, Pooling Intellectual Capital: Thoughts on Anonymity, Pseudonymity, and Limited Liability in Cyberspace, 1996 U. CHI. LEGAL F. 139, 163 n. 54;
303. and Charles D. Siegal, Rule Formation in Non-hierarchical Systems, 16 TEMP. ENVTL. L. & TECH. J. 173, 181-83, 190-99 (1997).
304. See also Eric Schlachter, War of the Cancelbots!, http://eric-goldman. tripod.corn/articles/cancelbotarticle.htm (last visited Apr. 10, 2010). Usenet has made sporadic appearances in the case reports. Highlights with significant factual discussion of Usenet include Arista Records LLC v. USENET.com, Inc., 633 F. Supp. 2d 124, 129-31 (S. D. N. Y. 2009);
305. Ellison v. Robertson, 189 F. Supp. 2d 1051, 1053-54 (CD. Cal. 2002)
306. rev 'd, 357 F.3d 1072 (9th Cir. 2004);
307. ACLU v. Reno, 929 F. Supp. 824, 834-35 (E. D. Pa. 1996)
308. aff' d, 521 U. S. 844 (1997);
309. and Religious Tech. Ctr. v. Netcom On-Line Commc'n Servs., Inc., 907 F. Supp. 1361, 1366 n. 4, 1367-68 (N. D. Cal. 1995). Purists may insist that "Usenet" refers only to one particular set of newsgroups, and that "Network News" is the correct umbrella term that also includes local newsgroups and even a few alternative hierarchies.
310. See, e.g., KROL, supra, at 151-57. In practice, though, users often also referred to these other hierarchies as "Usenet."
311. See id. at 452. Similarly, one could technically distinguish between the higher-level protocol governing Usenet's messages and newsgroups
312. see M. HORTON & R. ADAMS, RFC 1036 STANDARD FOR INTERCHANGE OF USENET MESSAGES (1987), http://tools.ietf.org/html/rfcl036 [hereinafter RFC 1036], and the lower-level protocols governing how those messages are transferred from one computer to another.
313. See MARK R. HORTON, RFC 976, UUCP MAIL INTERCHANGE FORMAT STANDARD (1986), http://tools.ietf.org/html/rfc976;
314. BRIAN KANTOR & PHIL LAPSLEY, RFC 977, NETWORK NEWS TRANSFER PROTOCOL (1986), http://tools.ietf.org/html/rfcl036. But in practice, the same social conventions causing users and administrators to standardize on the one protocol also led them to standardize on the other. As Paul Ohm puts it, "Just as you can get from downtown to Westwood without a car, you can communicate via Usenet without NNTP [Network News Transfer Protocol]. But most people would not take this trip without a car, just as most people do not use USENET except over NNTP." Ohm, supra, 1949-50 n. 28 (citing RFC 1036, supra, § 4).
315. See infra Part IV. C.1.
316. See infra Part IV. C.2.
317. See infra Part IV. C.3.
318. This exchange originally took place through direct telephone-line connections between Usenet servers; as the Internet became more widely available, the exchanges gradually switched over to using the Internet for their transport.
319. See HAUBEN & HAUBEN, supra note 212, 39-40, 44;
320. RHEINGOLD, supra note 212, at 120-21.
321. See RFC 1036, supra note 212, § 5 (describing algorithm for propagation of Usenet messages through network).
322. See KROL, supra note 212, at 153-54.
323. See Henry Edward Hardy, The History of the Net (Sept. 20, 1993) (unpublished master's thesis, Grand Valley State University), available at http://w2.eff.org/Net-culture/net.history.txt.
324. On the topical nature of particular newsgroups, see generally the archive of Usenet Frequently Asked Question (FAQ) files at www.faqs.org, which are organized by newsgroup.
325. See Ohm, supra note 212, at 1945-47 (describing posting to newsgroups); id. at 1949-50 (describing replication).
326. On server operation, see generally O'REILLY & TODINO, supra note 212.
327. See KROL, supra note 212, at 157 ("Last, we must deal with (how can I write this delicately?) censorship. Some administrators decide that some groups (especially in the alt category) are not for consumption by the server's clientele. So they choose not to carry them."). Since, by 2002, Usenet carried 1000 gigabytes of data per day, see Froomkin, supra note 212, at 822, some prioritization of which groups to carry was a technical necessity.
328. See KROL, supra note 212, at 156 ("A server administrator may choose not to accept a certain group because it is very active and eats up too much disk space.").
329. OSTROM, supra note 62, at 101-02 (discussing importance of "nested enterprises").
330. See Froomkin, supra note 212, at 823-24.
331. Id. at 824-25.
332. See RHEINGOLD, supra note 212, at 130 ("Usenet is a place for conversation or publication, like a giant coffeehouse with a thousand rooms; it is also a worldwide digital version of the Speaker's Corner in London's Hyde Park, an unedited collection of letters to the editor, a floating flea market, a huge vanity publisher, and a coalition of every odd special-interest group in the world.").
333. Froomkin, supra note 212, at 822.
334. See RHEINGOLD, supra note 212, at 120. The years of publication of the books on Usenet cited in footnote 212 are telling: 1992, 1993, 1994, 1994, 1994, 1995, 1995, and 1997. See supra note 212.
335. See RHEINGOLD, supra note 212, at 119 ("All you had to do to join Usenet was to obtain the free software, find a site to feed you News and take your postings, and you were in action. ").
336. See S. HAMBRIDGE, RFC 1855, NETIQUETTE GUIDELINES (1995), http://tools.ietf.org/html/rfcl855.
337. In Internet folklore, at least, the tide turned in 1993, as commercial services like Delphi and AOL began offering their millions of subscribers access to Usenet newsgroups, an event known as the "Eternal September"-a never-ending stream of new users as unfamiliar with Usenet's norms as the annual crop of college first-years had been. See WENDY M. GROSSMAN, NET. WARS 9-11 (1997).
338. See Froomkin, supra note 212, at 825-29.
339. See Giganews, Usenet Interview with John Gilmore, http://www.giganews. com/usenet-history/gilmore.html (last visited Apr. 10, 2010) ("For example, the quote I seem to be most famous for, "The net treats censorship as damage and routes around it', came directly out of my Usenet experience. I was actually talking about the Usenet when I first said it. And that's how the Usenet works-if you have three news feeds coming in, and one of those feeds censors the material it handles, the censored info automatically comes in from the other two.").
340. See KROL, supra note 212, at 132 ("If you are offended [by your server administrator's refusal to carry a newsgroup], you have two choices: find another server or beat up on your administrator.").
341. Siegal, supra note 212, at 192.
342. Id.
343. Froomkin, supra note 212, at 827-28 ("[M]ass self-defense....") ;
344. Siegal, supra note 212, at 192-93 ("[E]xtreme self-help-").
345. See Siegal, supra note 212, at 193 ("Moreover, Canter and Seigel, unbowed by their role as outcasts on the Internet, published a book telling other would be cyber-entrepreneurs how to profit by following their example....").
346. See id. ("[S]pamming is common....").
347. Id.
348. Id. ("But these guidelines obviously do not deter those who seek either financial gain or perverse pleasure from spamming.").
349. See Ohm, supra note 212, at 1941 ("[S]till too early for a legislature to intervene....");
350. Siegal, supra note 212, at 193-95.
351. See FRISTUP, supra note 212, at 25;
352. Ohm, supra note 212, at 1976-77.
353. See Internet FAQ Archives, Moderated Newsgroups FAQ, http://www.faqs.org/ faqs/usenet/moderated-ng-faq/(last visited Apr. 10, 2010) ("In general, hand-moderated newsgroups often have some unavoidable delay....").
354. See id. ("[A] typical setup for doing moderation would include... several hours of spare time per week for at least a year....").
355. See id. ("The discussion of differences between moderation and censorship has been erupting several times a year in news.groups for about 15 years.").
356. See id. (noting a total of about 300 moderated Usenet newsgroups);
357. cf. Froomkin, supra note 212, at 822 (counting "thousands" of newsgroups overall).
358. PFAFFENBERGER, supra note 212, at 193 ("The (Unfortunately Necessary) Art of the Kill File.... The proper remedy for all the above-mentioned forms of net.abuse is the kill file."). Items could also be killed based on other criteria, such as the use of a particular phrase.
359. See KROL, supra note 212, at 166-69 (explaining use of keyword-based tagging and killing to help newsgroup readers quickly browse topics). But the term "kill file" is most colorfully used to describe user-based filtering.
360. See ERIC S. RAYMOND, THE NEW HACKER'S DICTIONARY 269 (3d ed. 1996) ("Thus to add a person (or subject) to one's kill file is to arrange for that person to be ignored by one's newsreader in future. By extension, it may be used for a decision to ignore the person or subject in other media.").
361. See Internet FAQ Archivers, m KILL file FAQ § 1, http://www.faqs.org/faqs/killfile-faq/(last visited Apr. 10, 2010) (noting in passing that there is a killfile "for each user"). The killfile works a bit like a personal filter that sends all messages from your crazy cousin straight to an archive folder. Compare the nearly identical interfaces for "Rules" (including killing, marking as read, and sorting messages) in Unison (a newsreader) and Mail.app (an e-mail client) for Mac OS X.
362. See SHIRKY, supra note 212, at 82 ("Kill files perfectly illustrate the burden placed on the reader on Usenet where freedom of speech is as absolute as its gets anywhere. For all intents and purposes, anyone can say anything to anyone. If a certain kind of speech causes upset, it is usually up to the reader not to read posts about those subjects or mail from those people.").
363. This observation is based on the personal experience of the author. I would rather not, for reasons that should be obvious, name the specific newsgroups and mailing lists on which I have resorted to using a killfile.
364. See, e.g., James "Kibo" Parry, Killfiles and You, http://www.kibo.com/kibokill/(last visited Apr. 10, 2010) (providing detailed suggestions for efficient use of a killfile). Note the assumption that filtering out specific unwanted users will not suffice to make a newsgroup readable; more detailed filtering is required.
365. See Siegal, supra note 212, at 194;
366. RFC 1036, supra note 212, § 3.1;
367. Internet FAQ Archives, Cancel Messages: Frequently Asked Questions, Part 2/4 (v1.75), http://www.faqs.org/faqs/usenet/cancel-faq/part2/(last visited Apr. 10, 2010) [hereinafter Cancel FAQ, Part 2/4].
368. See Siegal, supra note 212, at 194;
369. Internet FAQ Archives, Cancel Messages: Frequently Asked Questions, Part 1/4 (v1.75), at I-II, http://www.faqs.org/faqs/usenet/cancel-faq/part1/(last visited Apr. 10, 2010) (discussing "third-party" cancels, including "forged" cancels).
370. Cancel FAQ, Part 2/4, supra note 252, at IV. C. ("A cancelbot is a program that searches for messages matching a certain pattern and sends out cancels for them; it's basically an automated cancel program, run by a human operator.").
371. See GROSSMAN, supra note 230, at 75-78 (discussing technical back-and-forth between message posters and message cancelers).
372. See Froomkin, supra note 212, at 829-31 (discussing "Usenet Death Penalty" in which a site considered to be too lax in stopping spam "has every single Usenet post originating from it immediately canceled or at least not forwarded. Thus, every person using that ISP loses the ability to post to Usenet regardless of his or her guilt or, in most cases, innocence");
373. Cancel FAQ, Part 2/4, supra note 252, at IV. E ("Giving out a cancelbot is like handing out loaded guns with no safeties.").
374. See Cancel FAQ, Part 2/4, supra note 252, at V. D (discussing spammers who used cancels as an offensive weapon, such as "Krazy Kevin, " who "cancelled many posts on news.admin. net-abuse.misc concerning his spams" and "Crusader, " who tried to prevent investigation of a neo-Nazi mass email by cancelling Usenet messages discussing it).
375. See Post, supra note 212, at 163 n. 54, 166 (discussing pseudonymity of Cancelmoose[tm]);
376. Internet FAQ Archives, Net Abuse FAQ, § 2.9, http://www.faqs.org/ faqs/net-abuse-faq/partl/(last visited Apr. 10, 2010)) ("Cancelmoose[tm] is, to misquote some wise poster, 'the greatest public servant the net has seen in quite some time.' Once upon a time, the 'Moose would send out spam-cancels and then post notice anonymously to news.admin. policy, news.admin. misc, and alt.current-events.net-abuse. The 'Moose stepped to the fore on its own initiative, at a time (mid 1994) when spam-cancels were irregular and disorganized, and behaved altogether admirably-fair, even-handed, and quick to respond to comments and criticism, all without self-aggrandizement or martyrdom.... Nobody knows who Cancelmoose[tm] really is, and there aren't even any good rumors.").
377. See Julian Dibbell, Griefer Madness, WIRED, Feb. 2008, at 90, 92 (defining "griefer" as "an online version of the spoilsport-someone who takes pleasure in shattering the world of play itself).
378. See Cancel FAQ, Part 2/4, supra note 252, at V. D (listing "rogue cancellers of various skill, competence, and intelligence"). Notable examples include Ellisd, who tried on moral grounds to cancel all messages posted to alt.sex, and the so-called CancelBunny, which tried to cancel posts containing the scriptures of Scientology.
379. Id.
380. Froomkin, supra note 212, at 829.
381. See id. at 828-31 (discussing attempt by "Internet vigilantes" to coordinate their efforts through the news.admin. net-abuse newsgroup and impose collective punishments on servers deemed to be excessively spam-friendly and discussing debates over legitimacy and existence of consensus to act against particular spammers).
382. See id. at 823-25 (discussing difficulty of coordinating process of selecting which newsgroups to carry);
383. Hardy, supra note 219 (discussing how dissatisfaction with decisions by administrators of "backbone cabal" systems not to carry newsgroups discussing sex or drugs, leading to creation of alternative hierarchy for distribution of news and abdication of previous coordinators of newsgroup-creation process);
384. Lee S. Bumgarner, The Great Renaming FAQ: Part 4, http://www.linux.it/- md/usenet/gr4.htm (last visited Apr. 10, 2010) (discussing near "constitutional crisis" on Usenet, including forged votes, over whether to create a newsgroup devoted to discussion of aquaria);
385. Giganews, 1987: The Great Renaming-Page 2, http://www.giganews.com/ usenet-history/renaming-2.html (last visited Apr. 10, 2010) (discussing controversy over Great Renaming and suspicion of the administrators who pushed it through).
386. See Froomkin, supra note 212, at 823 (noting that "backbone cabal" systems carried disproportionate share of Usenet traffic);
387. id. at 824-25 (observing that "a large number, perhaps a majority, of sites had effectively delegated administration of the newsgroup creation process to one person" who was willing to "take the time to figure out what is a legitimate group... and what is a practical joke").
388. See, e.g., Sascha Segan, R. I. P. Usenet, PC MAG. COM, July 31, 2008, http://www.pcmag.com/article2/0, 2817, 2326849, 00.asp ("[S]ervice providers sensibly started to wonder why they should be reserving big chunks of their own disk space for pirated movies and repetitive pom.").
389. See, e.g., Declan McCullagh, N. Y. Attorney General Forces ISPs To Curb Usenet Access, CNETNEWS, June 10, 2008, http://news.cnet.com/8301-13578-3- 9964895-38.html.
390. See Posting of Kevin Poulsen to Epicenter, http://www.wired.com/ epicenter/2009/10/usenet/(Oct. 7, 2009, 12:34 PST).
391. Clay Shirky has written that "[s]ocial software is stuff that gets spammed." Posting of Clay Shirky to Many2Many, http://many.corante.com/ archives/2005/02/01/tags-run-amok.php (Feb. 1, 2005).
392. As of this writing, Wikipedia discusses "e-mail spam... instant messaging spam, Usenet newsgroup spam, Web search engine spam, spam in blogs, wiki spam, online classified ads spam, mobile phone messaging spam, Internet forum spam, junk fax transmissions, social networking spam, and file sharing network spam." Spam (electronic), Wikipedia, http://en. wikipedia.org/wiki/Spamming (last visited Apr. 10, 2010). Just about anything worth using online is spammed.
393. See Chris Kanich et al., Spamalytics: An Empirical Analysis of Spam Marketing Conversion, 52 COMM. ACM 99 (2009).
394. See supra Part IV. B.
395. See Usenet, Wikipedia, http://en. wikipedia.org/wiki/Usenet (last visited Apr. 10, 2010) ("Usenet... is the precursor to the various Internet forums that are widely used today....").
396. See Giganews, Usenet Newsgroups History, http://www.giganews.com/ usenethistory/index.html (last visited Apr. 10, 2010) (describing switch from UUCP to NNTP as being designed to take advantage of "cutting-edge networking concepts" including the "always-on" Internet). Without the always-on Internet, unless most users are willing to pay long-distance phone charges to connect, they need to have servers located near them.
397. Krol, writing in 1994, thought that e-mail and Usenet each deserved a chapter. Indeed, he gave the Web roughly the same amount of space he gave to Usenet. KROL, supra note 212, at 101-48 (e-mail);
398. id. at 151-87 (Usenet);
399. id. at 287-322 (Web).
400. Usenet was born in 1979, WALDROP, supra note 178, at 427-28, modern SMTP-based e-mail in 1983
401. id. at 465.
402. See, e.g., MARK R. HORTON, RFC 850, STANDARD FOR INTERCHANGE OF USENET MESSAGES § 3.4 (1983), http://tools.ietf.org/html/rfc850 ("This message removes a newsgroup with the given name.... [T]he newsgroup is removed from every site on the network....").
403. See, e.g., RFC 821, supra note 145, § 3.2 (discussing forwarding of message by intermediate relays, with no expectation that they will retain copies for themselves or transmit to other, unspecified recipients).
404. See generally BRYAN COSTALES & ERIC ALLMAN, SENDMAIL (3d ed. 2002) (describing configuration of e-mail servers).
405. See Froomkin, supra note 212, at 833 ("[W]e are exercising our right to refuse traffic from anyone we choose. We choose not to accept any traffic at all from networks who are friendly in any way to spammers. This is our right as it would be within anyone's rights to make the same choice (or a different one, so long as only their own resources were affected by their choice)." (emphasis added) (quoting Paul Vixie, What Is an Open Relay?, http://www.mail-archive.com/imail-forum@list.ipswitch.com/msgl 1527.html (last visited Apr. 10, 2010))).
406. See, e.g., PAUL GRAHAM, HACKERS AND PAINTERS: BIO IDEAS FROM THE COMPUTER AGE 121-29 (2004) (proposing Bayesian filtering and explaining that the author had already implemented such a system on his own).
407. See Gmail Uses Google's Innovative Technology To Keep Spam Out of Your Inbox, http://mail.google.com/mail/help/fightspam/spamexplained.html (last visited Apr. 10, 2010) (using high-quality spam filtering as advertisement for Gmail).
408. Cf. LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY (2008) (arguing for coexistence of and collaboration between private and common forms in the law of intellectual property);
409. Heverly, supra note 141, at 1184-85.