three of Benkler's communications layers: it is happening at the physical
layer -- as the architecture for wired access gets pushed to an architecture of
control and as the spectrum carrying wireless content gets sold into a system
of control; it is happening at the code layer, as the legal system through
patents favors closed code over open and as content providers build the ar-
chitecture that will enable them to have more perfect control over content
on the Net; and it is happening at the content layer, as the rules, both tech-
nical and legal, for facilitating distribution of content increasingly favor
control of that distribution over the free flow of the original Net.

This shift is a step back, to a system of creativity and distribution that is
largely within the control of large commercial actors. But this time, this sys-
tem of control does not have the relatively neutral justification of econom-
ics behind it. The constraints that make this control necessary are not the
constraints built into the nature of real-space scarcity. Here, instead,
the scarcity is largely artificial. The expansion of IP rights creates a certain
scarcity, but to the extent that expansion is beyond what is needed to induce
progress, it is an unnecessary and unjustified handout to existing interests.
To the extent the architecture gets built to reestablish the power to control
distribution, and thereby innovation, it is a constraint that is not demanded
by economics. It is a constraint that simply favors some interests over others.

Because our bias is to ignore the choice between the free and the con-
trolled, we ignore the costs of a system of control over a system that remains
free. We fail to see the benefits from freedom because we assume that free-
dom is not possible. We assume that creativity and innovation and growth
will occur only where property and markets function most strongly.

Against this ideology, I offer the Internet. Against this bias, I submit a tra-
dition that has understood balance better. The past decade has demon-
strated the value of the free; that freedom came from the Net's architecture.
The changes we are now seeing simply ignore the value of the free; they get
implemented by changing the architecture of the original Net.

In _Code,_ I argued that the original Net protected fundamental aspects of
liberty -- free speech, privacy, access to content, freedom from excessive
regulation; I argued that those freedoms flowed from the architecture of the
Net; but, I argued, that architecture was not fixed; nothing guaranteed it
would survive unchanged; and, in fact, this architecture was being changed
in ways that took away some of these fundamental liberties.

I've now told the same story about innovation and the Net. The original
Net protected fundamental aspects of innovation. End-to-end meant new
ideas were protected; open code meant innovation would not be attacked;

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v?