My most recent paper, The Internet Is a Semicommons has just been published in the Fordham Law Review. It’s a mixture of property theory and Internet history; I argue that the conventional split between “private property” and “free for common use” on the Internet is overblown; both private and common need each other online. It turns out that it’s the dynamic interplay between the two that really enables worldwide collaboration while avoiding overuse.

This one has an interesting (i.e. long and involved) history. I had the basic ideas about four years ago. I was trying to think through, in a plausibly rigorous fashion, the question of why some online communities succeed and others fail. I was particularly interested in how both Metafilter and Slashdot had managed to build sustainable models of community discussion sites with very different approaches to the same basic problem. I started brainstorming and taxonomizing the moderation patterns that various sites use.

This is not that paper. What happened is that in order to put the moderation patterns on a firm theoretical footing, I needed to clear up some ambiguities in what legal academics meant when they talked about a “commons” online. The Internet isn’t really one—although it has significant common aspects—and I needed to explain why in order to make it clear precisely what problems moderation patterns solve. I presented the whole ball of wax—moderation patterns plus semicommons framework—a number of times in 2007 as “The Virtues of Moderation.” The feedback I got convinced me that while the ideas were interesting and worth pursuing, the agglomerated paper didn’t work. The two halves didn’t quite hang together, and although the paper was already sprawlingly large, both parts felt rushed. I started to think about splitting it into two halves, and then shelved it for a while as my search engine and social network scholarship occupied my attention.

Then, last spring, Abner Greene at Fordham invited me to be part of a symposium on David Post’s In Search of Jefferson’s Moose and Jonathan Zittrain’s The Future of the Internet. Both books are about how and why the Internet works, both on the level of individual communities and as a whole. It struck me that the semicommons framework I’d worked out to support my analysis moderation patterns connected very naturally to their books. The result was that I reworked the semicommons half of my paper into a discussion of Post’s and Zittrain’s books that brought out the property theory behind their visions of the Internet. “Reworked” may not quite give the flavor of it; I took the basic insight and more or less started writing from scratch. (And a good thing, too: Looking back recently over what I thought at the time was a really excellent draft from early 2007, I winced at the clunky writing and the rambling exposition.)

So this paper may have had a tortuous history, but I’m quite happy with it. Henry Smith’s original semicommons paper is brilliant, and I’m surprised that more law professors haven’t built on his ideas. My most extended case study in the paper is Usenet, which also makes fewer appearances in the law review literature than one would expect. I’m glad to be able to help fill these gaps. (To toot the horns of some friends, some of what has been written on both topics is quite good.) The editors at Fordham also did a great job; they pressed me to address the weaknesses of my argument while preserving the informal, focused tone of the piece. As with The Ethical Visions of Copyright Law, also published with Fordham last year, we really sweated the small details. I hope you approve of the results.

Here’s the abstract:

The Internet is a semicommons. Private property in servers and network links coexists with a shared communications platform. This distinctive combination both explains the Internet’s enormous success and illustrates some of its recurring problems.

Building on Henry Smith’s theory of the semicommons in the medieval open-field system, this essay explains how the dynamic interplay between private and common uses on the Internet enables it to facilitate worldwide sharing and collaboration without collapsing under the strain of misuse. It shows that key technical features of the Internet, such as its layering of protocols and the Web’s division into distinct “sites,” respond to the characteristic threats of strategic behavior in a semicommons. An extended case study of the Usenet distributed messaging system shows that not all semicommons on the Internet succeed; the continued success of the Internet depends on our ability to create strong online communities that can manage and defend the infrastructure on which they rely. Private and common both have essential roles to play in that task, a lesson recognized in David Post’s and Jonathan Zittrain’s recent books on the Internet.