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

Abstract

I. INTRODUCTION Constructing our information environment as one composed of information diverse and antagonistic sources(1) has been a central focus of structural regulation and its First Amendment justification for half a century. In twentieth century, structural media regulation meant tinkering with 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 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 attainment of decentralization and democratization by enabling small groups of constituents and individuals to become users--participants in 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 twenty-first century must, in turn, focus on enabling a wide distribution of capacity to produce and disseminate information as a more effective and normatively attractive approach to serve goals that have traditionally animated structural media regulation. As digitally networked environment matures, regulatory choices abound that implicate whether 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 information environment: physical infrastructure layer--wires, cable, radio frequency spectrum--the logical infrastructure layer--software--and content layer. At physical infrastructure level, we are seeing it in such decisions as digital TV orders (DTV Orders), or question of open access to cable broadband services, and stunted availability of license-free spectrum. At logical layer, we see laws like Digital Millennium Copyright Act (DMCA)(2) and technology control litigation that has followed hard upon its heels, as owners of copyrighted works attempt to lock up software layer so as to permit them to control all valuable uses of their works.(3) At content layer, we have seen an enclosure movement aimed at enabling information vendors to capture all downstream value of their information. This enclosure raises costs of becoming a user--rather than a consumer--of information and undermines possibility of becoming a producer/user of information for reasons other than profit, by means other than sales. At all these levels, 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 information environment for creative use by users. To implement such an agenda would require a focus on identifying resources necessary for 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 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 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. II. AT THE CROSSROADS The basic structure of mass media markets emerged in middle of nineteenth century. …

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