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[berkman] David Post on scaling governance

David Post is giving a talk at the Berkman Center about his book In Search of Jefferson’s Moose. I haven’t read the book yet, but it looks fascinating. It looks at cyberspace through Thomas Jefferson’s eyes. [NOTE: I’m live blogging, with all the weaknesses and inaccuracies thereupon. Be warned. And I’ve done a particularly poor job of capturing the details of David’s talk.]

David says the Net is all about scaling. “The Internet isn’t big because it’s the Internet. It’s the Internet because it’s big.” It’s the inter-network that got big. Jefferson figured out how to scale a democratic republic, which works at the town level but hadn’t worked at the national level. Likewise, he says, we need to be thinking about how scale law and governance for this new territory.

He gives the example of copyright. Even if you wanted to clear the copyrights for a YouTube, it’d probably take you 10 hours. Copyright doesn’t scale. “Copyright is supposed to be incentivizing creators” but these works only get created if people ignore copyright. Jefferson scaled a republic to continental scale, we need to do the same for the Net, he says. David says he doesn’t know how to do it. Not through the UN. “We need collectively to begin working on this.” He sees his book as the start of that conversation.

He says we should buy his book because “the omens are with me.” The day he sent off the final draft of his manuscript, a male moose was standing in front of his house in Vermont. The moose stands there for a day and a half. It’s the first one he saw in twenty years. Then, a week after the book was published, they found a complete fossilized skeleton of a mammoth under the new Thomas Jefferson law school, and under that was a whale, and under that there was a giant ground sloth of the same genus as the one Jefferson wrote a scientific paper about. His book is about scale and they find a mammoth, a whale, and a giant sloth under the Jefferson law school.

Q: [zittrain] You’ve vindicated a strand of thinking about the future of the Net. Just as Jefferson was living in a privileged time to think about frontiers, is cyberspace undergoing a similar transformation from frontiered to settled and suburbanized?
A: No. Not if we can keep it growing and, um, generative. There’s a self-fulfilling aspect to our discussions of this. It continues to be a frontier.

Q: [benkler] Why did you mention the UN? Are you suggesting we turn to it? What made the republic scalable was its loosely coupled architecture. That’s what made the Net grow. What is the shape of this international that’s not UN that’s presumably more grownup than cyber-jurisdictions, that retains this loosely coupled…
A: I really don’t know. It’s not too farfetched to think about small groups joining together into larger and larger organizations and coming to the table and saying they deserve respect as a law-making body. It might happen via real world courts that might say that they respect the local laws of this community on the Net.
Q: [benkler] What’s not sustainable about muddling through?
A: It’s totally sustainable, although there are scaling problems that will need to be addressed in some form or another. But then we’ll miss the opportunity to build something even more extraordinary.

Q: You say in the intro that this isn’t a scholarly work, but at the end you do take on the unexceptionalists [i.e., those who think the Net isn’t an exceptional case]. How do you get from your discussion of scale at the routing level to the application layer.
A: Take Wikipedia as an application. I’m not sure that it can continue to scale.

Q: I’m interested in the interaction between copyright law and publishers. We no longer need publishers for the dissemination of scholarly information…
A: I don’t know what the future of copyright looks like. A subtext of the book is to try to have people start fresh, at least as a thought experiment. How might we design copyright law? I don’t know what that looks like or how we get there from here, but it’s worth thinking about … The Jeffersonian insight is that there are two types of people: Those are instrumentalists who only want copyright law if it helps people to create. Others think it’s a moral or natural right. These two views are irreconcilable.

Q [zittrain] Do we need a constitutional convention for the Net? The Clean Slate project at Stanford, David Clark at MIT…What do you think about those projects? If you were at a Clean Slate meeting, what would your charge to them be?
A: They may be premature. I’d like to see a call to netizenship, i.e., citizenship in this space. Taking seriously this as a place where important things happen. At Clean Slate, I’d start with copyright because you could get a consensus among netizens that the system is profoundly broken and needs a new paradigm…maybe a hybrid of law and tech.

Q: [me] Do you worry that if there were a founding constitutional moment for the Net, it might provide an opportunity for, say, the Taliban to object to the very protocols of the Net (as well as the rest of the stack) because the protocols don’t permit the control of content? Might we end up with something far from what you and I want?
A: I worried about this when ICANN was founded. I don’t know, but I have Jeffersonian faith that more discussion is better than less. You have to shine your light and take the chances that you will lose those battles.

Q: [lewis hyde] The Google Books settlement is a constitutinal moment. Isn’t this an example of an ad hoc agreement: Two parties show up in court and the court settles it. If you could change one thing in the settlement, what would it be?
A: I don’t want to shoot my mouth off about that. The Google Books settlement illustrates a point about scaling. There are 40M people who have written books who aren’t represented.

Q: [ethanz] Why doesn’t the conversation start earlier than consitutional moments, i.e., with revolutions that give you the constitutional moment. When and how do we reach the point where we say we can’t just muddle along. We rebel against Facebook but we only get a new fiat from FB. When do we stand up and say that we need to govern ourselves?
A: That’s why I say constitutional moments may be premature. We’re in early days. When people live more of their lives in cyberspace, then I think they care more about the rules under which they live. [Tags: ]

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