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The field of information technology–particularly the rise of the Internet and a related phenomenon, Free and Open Source Software (FOSS)–provides an interesting prism through which to view contemporary ideological conflicts in the political and economic realms. Both the Internet and FOSS are powerful testimonies to the fertility of the public domain, at a moment when the existence of that domain is being challenged by an absolutist ideology that seeks to enthrone private property rights as the sole rationale for economic policy.

That these phenomena could flourish in such a hostile ideological environment is a testimony to their power. Yet the Internet and the open information infrastructure upon which FOSS rests face new legal challenges that could have profound consequences for their current state of health. Those challenges fall under two broad categories:

• Extension of intellectual property rights through patents and Digital Rights Managment (DRM) schemes
• Deregulation of telecommunications infrastructure to such an extent that telephone and cable companies will be able to discriminate as to the uses to which that infrastructure is put

In an article titled "Fencing Off Ideas: Enclosure and the disappearance of the public domain," which first appeared in Daedalus in Spring, 2002, Duke University professor of law James Boyle draws attention to how intellectual property policy has been subjected to the reductive logic of neoliberal economic orthodoxy (as manifested in the "Washington Consensus," which had been the object of much media scrutiny at the time Boyle’s article was written), which suggests that only free markets can provide efficiency and productivity. This trend is illustrated by recent efforts by various commercial interests to extend patent law both in time (as in the Sonny Bono Copyright Act) and space, into previously public realms such as "unoriginal compilations of facts" (for example, patents on gene sequences)–extending intellectual property to the "data layer" of facts rather than confining it to inventions that truly represent an innovation build upon those facts. All this is to say nothing of the increasing tendency of the U.S. Patent Office to grant patents in new technology fields that clearly fail to meet the basic test of novelty and originality.

Despite the "intellectually complacent, analytically unsound assumptions" (as Boyle puts it) of this so-called consensus, it has in fact been enshrined as unassailable dogma, such that arguments made from other perspectives are frequently rejected as "economically illiterate." (I feel obliged to point out again that the article was published four years ago–there are hopeful signs of a reevaluation of neoliberal fundamentalism, particularly in the wake of the spectacular failure of Washington Consensus-inspired policies in cases like Argentina’s economic collapse in 2001 and 2002.)

Far from representing the sanctification of a time-honored truth, neoliberal dogma in fact flies in the face of the consensus that held sway in the past. In 1918 Louis Brandeis wrote: "The general rule of law is that the noblest of human production–knowledge, truths ascertained, conceptions, and ideas become, after voluntary communication to others, free as the air to common use". The old consensus was that "ideas and facts must always remain in the public domain." Boyle writes:

From the inception of intellectual property law in the eighteenth century until quite recently, protection of the public domain–the intangible commons–was one fundamental goal of the law in most nations. In the new vision of intellectual property, however, property rights should be established everywhere: more is better.

The new consensus appears to be based largely on two assertions:

• Strong property rights are the best, if not the only, incentive for innovation and productivity.
• Government is inherently inefficient and corrupt and therefore should not interfere in the streamlined workings of free markets.

Boyle characterizes the first of these as an unbalanced assumption and suggests that the "vote of no confidence in the productive powers of the commons" it implies is mistaken. It’s not that the protection of property rights is unimportant, it’s that the new dogma does not recognize the importance of the commons as a basis for the generation of new knowledge: "Protecting the raw material of science and speech is as important to the next generation of innovation as the intellectual property rights themselves." A proper balance must be struck.

Moreover, the economic evidence simply does not warrant according property rights the exclusive position sought by some business interests. Strong DRM schemes in software and electronic devices, which often compromise fair use and other consumer rights, are based on the assumption that it’s always in the producer’s best interest to restrict copying to the maximum extent possible. In fact, there’s evidence to suggest that a "large, leaky market [in which illegal copying of content occurs] may actually produce more revenue than a small, tightly controlled market." In addition, Boyle writes, "given the known static and dynamic costs of monopolies, and the constitutional injunction to encourage the progress of science and the useful arts, the burden should be on those requesting expanded intellectual property rights to prove their value."

Most interesting from my point of view is Boyle’s presentation of FOSS as a most striking example of the "productive powers of the commons." Why FOSS, which is governed by an intellectual property regime meant to encourage–rather than discourage–copying, produces results of a quality that exceeds its proprietary counterparts (think the Linux operating system, the Apache Web server, the Firefox Web browser) is poorly understood, most especially by neoliberal ideologues. How does volunteer Boyle ventures that its global scale is key. Given that scale, a variety of motives–ranging from simple benevolence, to resume improvement, to enjoyment of solving puzzles–can be harnessed and plugged into a modular development process to produce results of exceptional quality.

What is clear is that FOSS represents "a new mode of collaborative production" that warrants further study. But to stifle it along with the open infrastructure on which it rests, would risk undermining a great source of creativity and innovation in the crucial realm of information technology. Lawmakers should protect this source by ensuring that "free" modes of production can exist along side the protection of property rights.

Skepticism about government should not expand itself to a condemnation of all public forms of collaboration in the creation of knowledge and wealth. Nor is this skepticism justified when it turns into a wholesale rejection of the notion that government can play an important role in facilitating productive activity, as it appears to in the case of neoliberal orthodoxy. In fact, as Joseph Stiglitz notes in a recent review essay in Foreign Affairs, there are cases in which government can outperform the private sector in certain areas relevant to the present discussion: "A report by the Council of Economic Advisers (conducted when I was its chair) found that the returns on public investment in science and technology were far higher than for private investment in these areas and than for conventional investment in plant and equipment." Stiglitz offers a perspective that differs sharply from neoliberal orthodoxy: "The market economy does not automatically guarantee growth, social justice, or even economic efficiency; achieving those ends requires that government play an important role."

Fortunately, certain intellectual property-related excesses seem to be coming increasingly to the attention of the public. As of this writing a "patent troll" with a dubious claim on the technology employed by the Blackberry handheld computer has take the device’s manufacturer to court, where the possibility of a cease-and-desist order threatens to throw the productivity of tens of millions of Blackberry customers into a tailspin. Additionally, large corporations like Microsoft and IBM advocate are advocating patent reforms that would ensure that patents are granted only for true innovations.

In the larger scheme of things, the wisdom of the Washington Consensus and the neoliberal orthodoxy that gave rise to it is being questioned in places like Latin America. Despite the populist or leftist cast of their campaigning and public interactions with their constituencies, Latin American leaders who have opposed themselves to the economically orthodox positions of the past have in most cases pursued moderate policies rather than returning to the protectionism of the past.

Still, there are other threats to openness on the horizon. O’Reilly’s Andy Oram recently commented on a new legal initiative called "Webcaster’s rights" that would erode the principle, currently in force, of "fair use" of Web content by legislating that the original broadcaster of a piece of Web content have full control over its use. By default, it would be illegal to retransmit it without first getting permission from the Web site that first broadcast it. Currently the US is pursuing the ratification of this policy globally in the context of WIPO (the World Intellectual Property Organization).

Finally, the Nation, among others, has reported on the potential privatization of the Internet in the wake of the dismantling of FCC regulation that that formerly required phone companies to operate as "nondiscriminatory networks (technically known as ‘common carriers’)." Under such a scheme, companies offering broadband service might throttle bandwidth in favor of customers downloading "premium content" (surely bandwidth-intensive video and audio) for an extra fee. The potential for revenue sharing under this model could compel major Web sites like Google, Amazon and Yahoo to support this arrangement.

These companies are furthermore pushing to make it illegal for communities to create their own local wi-fi networks that connect to the Internet.

AT&T CEO Ed Whitacre was quoted as saying: "Why should they be allowed to use my pipes? The Internet can’t be free in that sense, because we and the cable companies have made an investment, and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes [for] free is nuts!"

What’s most interesting about such a remark is the extent to which the question of to what extent private property rights serve the public good no longer even enters into the debate–the assumption is that the private concern’s right to maximization of profits is absolute.