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

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

Author(s) / Editor(s)

In this paper, Benkler demonstrates that regulatory policy in the digitally networked environment is being used to replicate the current mass media structure in which individuals are passive consumers and argues that regulatory policy should develop and sustain an information commons for the consumption, production and exchange of information by active users.

Disciplines

Publication Reference

Published in/by
Federal Communications Law Journal Vol. 52 pp. 561-579
Date
April 4, 2000

Findings

  • Information and communication regulatory policy should be focused on ensuring a stable system that supports active "peer" users who produce and consume information in the digitally networked environment as opposed to the current mass media system in which a few commercial producers deliver content to a large number of passive consumers. Benkler argues that regulatory policy should develop and sustain an information commons (for the consumption, production and exchange of information by users) and that provisions be designed for the access of information that is not or cannot be held in common.
  • A user is an individual who consumes information but also reworks information and sends it to others (or produces new information). The unregulated Internet of the 1990s made it possible for peer users to emerge. This is in contrast to a passive consumer who consumes but does not produce or exchange information.
  • People want to be users, as evidenced by the Internet and the fact that people using telephones have spent more than on "newspapers, magazines, broadcast cable, and movies combined" in order to participate in communication.
  • For the past half century, our information and communication structure has been one of mass media - a small number of professional producers create content for the widest possible set of passive consumers. This has resulted in today's powerful mass media structure. Attempts are ongoing to replicate the same structure in the digitally networked environment. Things will continue on this path so long as regulatory policy is one that seeks to provide better service to consumers as opposed to one that supports and evolves peer use. That is, the goal of regulatory policy must be seen as enabling use and that consumption, production, and exchange of content is the purview of users.
  • Technologically today, because of the digitally networked environment and through appropriate regulatory policy, it is possible to develop a system in which individuals are free to participate in the consumption, production, and exchange of information - an information commons. However, such a system is not guaranteed and appropriate regulatory choices must be made at all levels (physical layer, logical layer, and content layer) to ensure a commons.
  • The Supreme Court's view of the First Amendment continues to be that it provides for "robust debate, diversity of viewpoints, and individual expressive freedom" as opposed to the view that it provides a technical rule against regulation as regulation. At the same time, mass media has become technically, economically, and legally entrenched and government regulation seeks to counteract the potentially ill-effects on the intent of the First Amendment. The reality is that mass media provides very few individuals or organizations with access to communication pathways, and hence without regulation and maybe in spite of it, it is possible for this reality to inhibit the intent of the First Amendment.
  • The goals of current communications regulation are to uphold the intent of the first amendment and, as a technology, the digitally networked environment provides a better means with which to actually realize these goals. However, regulation would still be required to ensure that we don't, through regulation, replicate the current mass media structure.
  • Benkler provides legal and regulatory examples of the reproduction of the mass media producer-consumer model at the content, logical, and physical layers of the digitally networked environment. At the content layer, intellectual property rights are used to deny use that provides public discourse. At the logical layer, owners of the logical layer are allowed to design that layer to protect the use of their content even for uses that are privileged by law. At the physical layer, the FCC has gone in two opposing directions by both created a commons of digital spectrum and perpetuated the current broadcast system with the allocation of digital spectrum.
  • In cable broadband, providers cite technical reasons for creating a system that provides significantly larger downstream capacity than upstream capacity and then prohibit customers from moving from consumers to users by hosting servers that serve up content.

Currently, regulatory policy in the digitally networked environment is being used to replicate the current mass media structure in which individuals are passive consumers obtaining information and content from a few commercial producers. In this paper, Benkler provides legal, regulatory, and technological examples of how the mass media producer-consumer model is being reproduced at the content, logical, and physical layers of the digitally networked environment. At the content layer, intellectual property rights are used to legally deny uses that purely provide for public discourse. At the logical layer, owners of the logical layer are allowed to design that layer to protect the use of their content even for uses that are privileged by law. At the physical layer, the FCC has gone in two opposing directions by both created a commons of digital spectrum and perpetuated the current broadcast system with the allocation of digital spectrum. And in cable broadband, providers cite "technical reasons" for creating a system that provides significantly larger downstream capacity than upstream capacity and that technically prohibits customers from becoming users by hosting servers that serve up content in both cases perpetuating the mass media producer-consumer model.

But people want to be users as is evidenced by the Internet and the fact that people using telephones have spent more than on "newspapers, magazines, broadcast cable, and movies combined" in order to participate in communication. Users consume information but also rework information and send it to others (or produce new information). The Supreme Court's view of the First Amendment has repeatedly upheld the notion of users in that it provides for "robust debate, diversity of viewpoints, and individual expressive freedom" as opposed to the view that it provides a technical rule against regulation as regulation. At the same time, mass media has become technically, economically, and legally entrenched and government regulation seeks to counteract the potentially ill-effects on the intent of the First Amendment. The reality is that mass media provides very few individuals or organizations with access to communication pathways, and hence without regulation and maybe in spite of it, it is possible for this reality to inhibit the intent of the First Amendment.

Benkler calls for regulatory policy to move away from providing better service to consumers and towards enabling use and that consumption, production, and exchange of content is the purview of users - a move from the mass media producer-consumer model to an information commons. Today, technologically through the digitally networked environment and through appropriate regulatory policy, it is possible to develop a system in which individuals are free to participate in the consumption, production, and exchange of information - an information commons. Such a system would provide the intent of the First Amendment as regulatory policy today seeks to provide in spite of the realities of the mass media producer consumer model. However, such a system is not guaranteed and is not without regulation and therefore appropriate regulatory choices must be made at all levels (physical layer, logical layer, and content layer) to ensure a commons.