Benkler’s Theory of Layers
(Excerpt from A Balance of Benefits and Burdens: Academia in a Digital Copyright Context, 73-79)
© C. Mohrbacher 2003
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[C]ommunication infrastructure regulation should be focused on accentuating those attributes of digital information technology that make it a potential vehicle for achieving a broad distribution of access to, and participation in, the social processes of knowledge production (“Communications Infrastructure” 183-184)

~Yochai Benkler

            To answer my research question, my methodology unpacks digital copyright regulation that affects educators and their students, as well as the digital regulation that shifts the balance of burdens and benefits to a regulatory environment favoring corporations over education. Yochai Benkler suggests above that a goal for regulation must be an equal distribution of the benefit of access in digital communication.  Therefore, the most effective approach to analysis is one that allows me to evaluate the document closely, by segments, as well as holistically, to help me distinguish any specific undermining of academic access, as well as an overall erosion of this access. Furthermore, because the CCCC, NCTE, and AAUP documents suggest that burdensome regulation occurs in the textual content, in computer code and even in the equipment belonging to university Online service providers, the DMCA analysis must also must allow me to examine regulation of access at more than just the content or textual level.   

            Professor Yochai Benkler’s communication theory of layers provides an effective approach to this type of multi-leveled analysis because Benkler’s method addresses not only the content layer of digital communication, but also the code layer and the actual physical environment of computers and wires.  In his article, “From Consumers to Users: Shifting the Deeper Structures of Regulation Toward Sustainable Commons and User Access,” Benkler explains why regulation at all three layers may have serious future implications in the digitally networked environment:

As the digitally networked environment matures, regulatory choices abound that implicate whether the network will be one of peer users or one of active producers who serve a menu of prepackaged information goods to consumers whose role is limited to selecting from this menu.  These choices occur at all levels of the information environment:  the physical infrastructure layer—wires, cable, radio frequency spectrum—the logical infrastructure layer—software [and code]—and the content layer [images and text].  562

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Above, Benkler expresses concern that because of increasing regulation, the digital environment will evolve to a consumer-passive, from the now consumer-active environment.  In this scenario, instead of being able to choose and manipulate information, consumers will be offered a limited menu of information, as is already the case with television and radio.  The ability to manipulate information is especially important to academia because an educational environment, by tradition and definition, is one where knowledge is created and manipulated ad infinitum.  An environment that impedes access to digital text, code, and hardware, also impedes knowledge creation.

In establishing a baseline from which to identify increasing control of digital access, Lawrence Lessig explains that, in the 70’s and 80’s, constraints came not from legal regulations, but rather from the limited number of available computers.  In other words, the physical scarcity constrained an otherwise free code and content layer. Lessig describes this early digital environment:

The physical layer of the “computer-communications architecture was controlled; the very nature of its expense forced users to locate to the machines.  Locating the machines in particular places made it easy to control access.  The logic [or code layer] of the machine may have been open, but only those with permission were allowed in the “machine room.”  And finally, while the source code for these machines may not have been controlled (content layer, open), the small number of these machines meant that the value of the open code was limited.  Coding, and the creativity realized in coding, was dictated by this architecture that mandated control.  (113)

I apply Benkler’s theory to the digital environment Lessig describes above as follows:

·        Physical Layer (or architecture)—controlled

·        Code Layer (or logical layer)—free of regulation, but controlled by limited access to physical layer

·        Content Layer (or text and images)—free of regulation, but controlled by limited access to physical layer
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A major concern for both Benkler and academics is that the digital public domain under the DMCA is diminishing due to the draconian anti-circumvention measures.  He underscores that identifying and sustaining a public commons at all levels of digital communication is crucial to innovation and creativity in a digital environment (“From Consumers to Users”).  The theory of layers helps identify which level of public commons is at risk.  Regulation of the public commons is Benkler’s main focus in his theory of layers; however, his approach is also useful for uncovering specific regulation concerning education as well. 

Lawrence Lessig appreciates the flexibility of Benkler’s theory in its ability to reveal constraints at all three layers, as well as its ability uncover the extent of regulation and/or control in any communication venue—traditional or digital.  Lessig  illustrates this flexibility as he applies the theory to the following communication environments—Speaker’s Corner in London’s Hyde Park, Madison Square Garden, the telephone system, and cable TV (23-24). 

Table 1                Lessig’s Application of Benkler’s Theory of Layers

	Speakers’ Corner	Madison Square Garden	Telephone System	Cable TV
Content	Free	Free	Free	Controlled
Code	Free	Free	Controlled	Controlled
Physical	Free	Controlled	Controlled	Controlled

Source:  Lawrence Lessig, The Future of Ideas: the Fate of the Commons in a Connected World.  New York: Random House, 2001, 25.

            What is important to note here and what reveals itself in my DMCA analysis results in the next chapter is that increasing control appears in more layers as the technology becomes more sophisticated.  The Speakers’ Corner, the first venue illustrated in Table 1, is a low-tech environment in Hyde Park where anyone can speak on anything to whoever is in the park at the time.  Therefore, the content or topic of the speech is unregulated, the language or code is unregulated, and the physical environment is also unregulated. The telephone system adds technology and thus, control increases.  Although content is free because a consumer may pass any message over the phone lines, the physical infrastructure and code that allows a message to be passed is owned and controlled by the telephone company.  At the far right end of the regulation spectrum is Cable TV.   The content or broadcast itself and the code that determines what shows are broadcast, in addition to the cable and wires are all controlled by the cable company.  In other words, no choice, other than what channel to watch, is left to the consumer (24-25).  
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Lessig explains that the digital environment is not as straightforward as the examples in Table 1 might suggest, in that “it mixes freedom with control at different layers” (25), especially at the code and content levels.  Additionally, although Benkler’s approach effectively identifies layered controls in cyberspace, control of one layer may influence control at another layer and any analysis must reflect these interactions.  For example, the intellectual properties available for download on the Project Gutenberg site are in the public domain.  However, if the site owners put password or code protection at the portal of the site, then the public domain works become protected by that code.  They are no longer free.  So, although the content is technically free, the code is regulated and the regulation prohibits users from accessing the work without paying for and obtaining a license.  Moreover, if the computer itself can only be operated by means of a key or a code, we could say that the physical infrastructure is regulated.  In the case of a locked up physical infrastructure, neither code nor content are accessible—free or not.

            Another complicating aspect to this analysis is determining what DMCA restriction or regulation falls into which layer.  For instance: Coded computer language is content, as well as code in that when it is applied to a portal, it is a code that allows or prevents passage to a site, but when someone takes the code apart in an act of reverse engineering, then modifies it in some way, the code can be classified as content or modified text. I was forced to consider how I would treat those regulations that constrain accessibility to more than one layer, as in the Gutenberg example above and how I would quantify or describe the amount of regulation.  As to the first concern, I have simply chosen to describe the effects as primary or secondary  and to explain the effect of one regulation of one layer on other layers in my analysis.   As for my concern about quantification of results of my analysis of the DMCA, I have added my own interpretation of the impact on education the 70’s and 80’s baseline that Lawrence Lessig describes above, factoring in the burdens identified in my non-legal documents.  Another quantification issue is how to measure the shift in balance of burdens and benefits provoked by the DMCA.  Because the shift in the balance of burdens and benefits is an abstract concept, it is also unmeasurable, so I will simply offer my qualitative assessment, based on the analysis, to determine whether there is a shift.

My analysis is organized as the DMCA itself is organized in that I identify key regulations and restrictions identified as burdensome by my non-legal document analysis beginning with Title I and ending with Title V in each layer.[1]  I begin with the content layer.  Areas where regulations and restrictions indicate increased burdens or increased benefits to educators and their students are then categorized into the physical infrastructure, code, and or content layers according to Yochai Benkler’s framework.  Some concepts fit into more than one layer and these are noted and discussed. 

Because the Chapter 4 findings portend future trends, I transition into a Chapter 5 evaluation of recent legal challenges to the DMCA, which are apt indicators of where copyright law is heading.   Chapter 5 also concludes with a brief discussion of the dialectical tension between the law, those who challenge the legislation, and trends in the balance of burdens and benefits between individuals and corporations, between audience and author, and between corporate concerns and academic concerns.