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

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