ABSTRACT
61Cyberspace was once thought to be the modern equivalent of the Western Frontier, a place where land was free for the taking. This is true no longer. This Article argues that we are enclosing cyberspace and imposing private property conceptions upon it. As a result, we are creating a digital anticommons where suboptimal use of Internet resources will be the norm.
Part I shows why initial discussions of the cyberspace as place metaphor have confused the descriptive question of how we think about cyberspace with the normative question of how we should regulate cyberspace. It suggests that we can bracket the normative question and still answer the descriptive question of whether we think of cyberspace as a place.
Part II examines the lessons of recent cognitive science studies, and demonstrates the importance of physical metaphors within our cognitive system. It then reviews the evidence of our use of the physical metaphor, cyberspace as place, in understanding online communication environments.
Part III focuses on this metaphor’s unacknowledged and unrecognized influence on the development of the legal framework for the Internet. It examines tortious, criminal, and constitutional law responses to cyberspace, and concludes that the cyberspace as place metaphor exercises a strong and unrecognized influence on the regulatory regimes of cyberspace.
Part IV details why the effects of that metaphor’s use-including the idea that there is property online, and that this property should be privately owned, parceled out, and exploited-are extremely troubling. Though private ownership of resources is not itself problematic, it can lead to the opposite of the tragedy of the commons: the tragedy of the anti-commons. Anticommons property occurs when multiple parties have an effective right to prevent others from using a given resource, and as a result no one has an effective right of use. Part IV argues that this is precisely where the cyberspace as place metaphor leads. We are moving towards a digital anticommons, where no one will be allowed to access 62competitors’ cyberspace “assets” without a license or other transactionally expensive or impossible permission mechanism.
This Article explains how the cyberspace as place metaphor leads to undesirable private control of the previously commons-like Internet and the emergence of a digital anticommons. As we all stake out our little claims in cyberspace, we destroy the cyberspace commons.
