Metaphors for Understanding Rights and Responsibilities in Network Communities: Print Shops, Barons, Sheriffs, and Bureaucracies Discussion Paper 15 October 1992 Copyright 1993 by: Henry H. Perritt, Jr., Professor of Law Villanova University School of Law Villanova, PA 19085 (215) 645-7078 (Fax) (215) 645-7033 Perritt @ UCIS.Vill.Edu Table of Contents Introduction 1 Metaphors 1 Macrometaphors 2 The print shop 3 Broadcasting 4 Telephone and telegraph service 5 Evaluating metaphors: disaggregated value and Hohfeldian relations 6 Disaggregated value and entrepreneurial micrometaphors 7 A reference book 9 The warehouse 9 The corner soapbox 10 Bedtime stories and the Gettysburg Address do not need internal pointers or external pointers value 10 Hooks and handles 11 The card catalog 11 Newspaper routes 12 Using metaphors 12 Hohfeldian relationships and legal micrometaphors 13 The censor 16 Bottlenecks 17 Searching for bottlenecks 18 Presumptions 18 The innkeeper: holding oneself out 19 The baron's court 20 The sheriff 21 Bureaucracy 23 Conclusion 24 Introduction This paper suggests how metaphors can be useful in defining the matrix of rights and responsibilities in networked communities. It begins by reviewing the concept of a metaphor and then revisits the traditional macrometaphors for digital electronic information: the print shop, broadcasting, and telephone service. Then, it dissects these three macrometaphors and digital electronic network communities in two different ways, one according to discrete types of information value produced, and the other according to discrete two-party legal relations. It concludes that network service providers should be exposed to tort liability for harmful messages carried unless they are burdened with equal access obligations. Whether equal access obligations should be imposed should depend on whether the potential obligor holds herself out as offering equal access or controls a bottleneck. Conversely, an actor who does not control a bottleneck, does not hold himself out as affording equal access and who exerts significant content control has a First Amendment privilege not to provide equal access. The paper also concludes that explicit institutional arrangements are needed to decide claims of right and to enforce duties. Metaphors A metaphor is "a figure of speech containing an implied comparison in which a word or phrase ordinarily and primarily used of one thing is applied to another."1 "Network community" is a metaphor, implying a comparison between networks and traditional communities.2 Metaphors are useful in two ways, as prototypes and as expository aids. Metaphors may serve as legal prototypes, sets of rights, duties, privileges, powers and immunities, expressing resolutions of policy arguments for an against recognizing particular rights, duties and privileges. Prototype metaphors exemplify legal reasoning by analogy. "This relationship between author and electronic gateway is like that between an advertiser and a newspaper publisher; therefore the gateway owes no duty to provide access." Choosing a prototype metaphor virtually defines the matrix of duties and rights, and the rulemaking and adjudicatory institutions. Metaphors also are modes of exposition, making abstract ideas more concrete. The existence and content of rights and duties depends on the nature of the community involved. Expository metaphors describe communities. An important part of the definition of a community is the definition of the institutions through which it expresses obligation and enforces compliance. Rights and responsibilities are defined by custom as well as by formal law, and enforced by group pressure or exclusion as well as by legal sanctions. Quaker meetings, corporations, and municipalities have distinctly different arrangements for making rules, determining instances of noncompliance and imposing punishment. In evaluating competing metaphors, and in using them informally to clarify discussion, it is important not to be limited by a lawyer's understanding of a modern industrial state; rather one should also think about simpler and less formal communities, say a 14th Century English village or an 18th Century New England town, as well as 21st Century United States. A multiplicity of metaphors suits a national digital electronic network. But multiplicity is not new. The multiple metaphors arise from they many different ways in which conventional technologies handle information. There is no one description that covers the present national print-on- paper network. Libraries co-exist with bookstores and with subscription-based newsletters delivered by U.S. mail. Newspaper publishers co-exist with leafleters and with providers of facsimile communications channels. In identifying and evaluating metaphors for network communities, it is helpful to distinguish two types: macroscopic metaphors ("macrometaphors") and microscopic metaphors ("micrometaphors"). Macrometaphors characterize the entire community: "electronic newspaper," "public telephone system," "digital broadcaster." Micrometaphors focus on parts of a network system, on particular bilateral relationships or on particular activities or types of value: "electronic conduit," "editor," "bottleneck." Macrometaphors Ithiel De Solo Pool already identified the most useful macrometaphors for information: the print shop, radio and television broadcasting, and telephone and telegraph service.3 These macrometaphors are useful because they simplify debate over rights and responsibilities. Macrometaphors are candidate clusters of rights on a kind of take-it-or-leave it basis. The print shop The most popular macrometaphor is the print shop. The problem is that the print shop is not a single metaphor; modern print on paper technology encompasses a number of metaphors. The modern print world is extremely diverse, and the publishing industry is fragmented and competitive. Selecting metaphors from the print on paper world is intellectually challenging because the boundaries of print- on-paper categories do not always exist clearly in digital electronic environments. Some of the differences that blur boundaries can be inferred from a report prepared in the mid 1980s by Harvard's program on Information Resources Policy.4 This report ("the Ernst study") identified four dimensions of information packages and placed typical electronic formats on a four dimensional grid along with other nonelectronic information objects. The relative position of electronic and nonelectronic objects defines categories and suggests metaphors. The grid considers four dimensions: (1) timeliness/currency, (2) format impact, (3) format manipulation, and (4) substance manipulation.5 The Ernst study postulates that the transitions from print to electronic technologies show patterns of change toward greater timeliness/currency, more manipulation of substance, less format impact, and less manipulation of format.6 Such patterns undercut the utility of some print shop metaphors, and suggest that modern print-on-paper may not be an entirely suitable metaphor for digital network communications.. A galley of type and the proof taken from it are not very helpful models for word processing and desktop publishing. Ernst wrote before the general acceptance of graphical user interfaces ("GUIs") for small computers; indeed one of his aims was to establish the competitive need for such interfaces. GUIs accommodate the patterns of change identified by Ernst but enhance format impact. GUIs combined with desktop publishing allow electronic formats to have as much format impact as print on paper formats. A display advertisement now may be a good metaphor for an EMail message. GUIs and messages containing graphical images are still relatively rare phenomena in wide area networks, however, because of bandwidth limitations and lack of standardization. The appropriateness of modern print on paper technology as a metaphor depends on the ability of networks to handle graphical images. Graphics is an important feature of modern publishing, leading to Ernst's format impact. Existing network technology does not handle graphics well. Technologies that handle graphics also may handle richer kinds of multimedia, leapfrogging the graphical print shop metaphor to a broadcast metaphor. Nevertheless, the print shop metaphor can be useful in another way. In its 18th century sense, the print shop represents a particular market structure, and was the reality from which the First Amendment sprang. In 1780, the print shop was the only mass communications technology. A print shop was vertically integrated, with a single entrepreneur and at most one or two apprentices producing all of the types of value that made up a final information product. The magnitude of fixed investment, the printing press and several fonts of type, was not insubstantial, but it represented no insuperable barrier to entry. It was common for someone objecting to the information disseminated by an existing print shop -- or denied access to an audience through an existing print shop -- to start his own.7 No one suggested that print shops were common carriers. Unlike inn keepers and ferry operators, they were not obligated to accept all the business offered them. On the other hand, print shop proprietors regularly were defendants in libel suits. It was well-accepted that they had a responsibility to compensate the victims of injurious information the print shops disseminated. Broadcasting It is ironic that the print shop is such a popular source of metaphors for digital electronic networks. Television and radio broadcasting uses electronic networks, and therefore would seem to be a better macrometaphor. Entertainment video, like newer utilitarian electronic works, involves multiple creative acts and multiple points of fixation of information. Print on paper publishing, in contrast, involves only one or two creative acts and only one or two points of fixation. The dominant event in print on paper publishing is original authorship. When the creative effort of the original author is fixed, virtually all of the eventual value is incorporated into a single representation. Additional value and fixation occurs in the editorial production process when tables of contents and indexes are generated. Television broadcasting is quite different. First, there is a clear distinction between production, network, and broadcast station roles. Second, within the production role, multiple actors contribute distinct value. Script writers, actors, musical composers, sound technicians, lighting technicians, cinematographers, all contribute. This looks more like disaggregated production of value in a digital network community than it does print publishing. Nevertheless, the entertainment video metaphor may be an imperfect predictor of the future of utilitarian electronic works. In the video entertainment industry as in print publishing, one entity tends to gather all of the intellectual property rights associated with contributions by multiple producers. This entrepreneur -- the producer in the case of video entertainment, the publisher in the case of print works -- takes over all responsibility for assembling all of the different types of value, including distribution, billing and collection as well as creative effort. The new utilitarian (as contrasted with entertainment-oriented) electronic technologies will lead to dis-intermediation, exemplified by multiple entrepreneurs independently generating and selling their own distinct bundles of value which will be combined by ultimate consumers. There are not many examples of this in video entertainment, any more than in print publishing. Production aside, the paradigmatic broadcaster symbolized a market structure very different from the colonial print shop. As a symbol of this market structure and the associated set of legal relations, broadcasting may be a useful macrometaphor. The barriers to entry in broadcasting are substantial, not only the investment required in a transmitter, antenna, and FCC license, but also in a network affiliation, which typically restricts competition in particular markets. Moreover, the perspective of an individual station is only half the story. National networks are the other half. There, the barriers to entry are even greater.8 Nevertheless, the broadcast metaphor does not include legal requirements for networks to provide access. It includes very limited access obligations imposed on stations, justified by the grant of a franchise to use scarce electromagnetic spectrum. Broadcasters, like print shops, are obligated by the tort law to pay for injuries caused by information they disseminate. Telephone and telegraph service Telephone and telegraph service may be the best macrometaphor. Indeed, before long, metaphor may merge with reality. The Internet, as it evolves into the NREN, may merge with the public telephone system. Already, plain old telephone service plays an important role in digital electronic communications. People who gain access to digital networks via modem almost always do so through the voice telephone system, using a regular dialup line. In some cases the inter-exchange portion of the digital channel is a dialup voice telephone circuit (or a virtual circuit). In other cases, only the local exchange portion is a voice telephone circuit, terminating at the point of presence for a public packet switching network, which handles the remainder of the communications link. Finally, much of the existing Internet, especially at the regional and local level, is handled over physical circuits provided by the telephone companies. The Internet and NREN are ways of expanding the digital part of this hybrid analog/digital arrangement, and in automating the addressing and switching so that a human being need not look up a telephone number for a particular node and enter it into a telecommunications script. As ISDN evolves, making more of the telephone system digital instead of analog even for voice communications, and as the telephone companies use their newly granted authority to offer information services, the NREN and the telephone system may become indistinguishable. Moreover, the telephone metaphor may be merging with the broadcast metaphor under the FCC's video dial tone order. Regardless of what happens in the future, the simple telephone and telegraph service metaphor represents a market structure and a legal approach conceptually quite distinct from the print shop and broadcast metaphors. Although a monopolistic market structure was not the starting point,9 it was established early in the life of telephone technology that a supplier of telephone service should be treated as a common carrier, obligated to provide service on equal terms to anyone who applied. As the national monopoly of AT&T emerged in the wake of a political accommodation in 1913, telephone service providers avoided supplying information content and limited themselves to providing information distribution value. This made it much easier for the law to treat the phone company like it treated other distribution and transportation enterprises, particularly the railroads, made it easy to forget about the First Amendment because no content was involved, and also made it easy to grant a virtual immunity from tort liability because no content control was involved. Evaluating metaphors: disaggregated value and Hohfeldian relations Assessing the fit of competing metaphors requires considering specific attributes of metaphors and new phenomena. There are two ways to isolate specific attributes, by disaggregating information bundles into specific types of value, and by focusing on specific rights and obligations of specific actors in the fact pattern. The description of the three macrometaphors used both techniques for evaluating particular attributes and trends. The following two sections formalize that method of analysis. They refer to the three macrometaphors and also offer micrometaphors to illustrate particular issues. Micrometaphors relax the take-it-of-leave-it character of macrometaphor analysis. Disaggregated value and entrepreneurial micrometaphors Digital network technologies permit the separate production and marketing of specific types of added value in electronic information products.10 Information products are bundles of content, chunking-and-tagging, internal-pointers, external-pointers,11 presentation, duplication, distribution, promotion, billing, and integrity-assurance value, added through creation, organizing, retrieval-and-assembly, and marketing processes. The new technologies permit different producers to produce these types of value separately or in less-than-comprehensive clusters and market and deliver their types of value and clusters through networks. Consumers can perform final assembly on demand. The disaggregation possibility means that a single macrometaphor may not apply to the entire information network. Instead, the telephone metaphor may be appropriate for the production and consumption of one type of value, while another macrometaphor may be appropriate for the production and consumption of other types of value.12 Digital networks permit economies of scale in production of certain types of value to coexist with decentralized production of other types of information value. They accommodate Peter Weiss's macrometaphor of an information ecology. Weiss notes that each type of information must take root, grow, be nourished, in its own space. Historically it had to be consumed in its own space as well. Digital network technology expand the consumption market to global scope. But Weiss urges that production of content not be centralized. To put all information together in a kind of information zoo would destroy the relationship between the information and its habitat. The new technologies permit information to remain in its own habitat and still be consumed elsewhere. The feasibility of disaggregating the production and marketing of different types of value arises from an important difference between paper and electronic formats. Most electronic information products (excluding bit-mapped page images) are not discrete physical packages. In this respect they are unlike books, newspapers, and magazines. Unlike these physical packages, electronic information products can be inputs into new information production processes without the need for human manipulation. An electronic paragraph may be incorporated into a new information object without a human being needing to perceive the content of the paragraph. Nor need a human being re- express the content by verbalizing it or writing out the characters or typing them on a keyboard. This characteristic enormously reduces the cost of information production which, as economist Fritz Machlup noted, always builds upon pre- existing knowledge.13 But this characteristic also eliminates the bottlenecks that are essential to enforce legal rights in pre-existing information value.14 Focusing on particular types of value not only reveals that certain macrometaphors may be suitable for some types if value, while other macrometaphors may be suitable for other types, it also reveals other metaphors, which can be characterized as micrometaphors. For example face-to-face communication, novels, television programs, radio broadcasts, and bedtime stories, may become interesting metaphors. A reference book The potential for dis-integration of production of information value is best understood by contrasting digital network activities with a conventional integrated production process, that used to produce a reference book, which has content value, but also has other forms of value that are just as important to consumers. The content in a reference book is chunked so that the chunks are mutually exclusive and collectively exhaustive of the subject. The chunks are tagged so as to make them easily and unambiguously retrievable. The book has internal pointers in the form of a table of contents and an index. It undoubtedly has external pointers to other works. A user expects to find external pointers in library card catalogues, in books in print, and in other works to this reference work. The author and publisher have worked to design presentation value so that readers are able to use the internal pointers value easily, to retrieve the chunks according to their tags efficiently and to process the content value without undue cost. All of these types of value have been produced with the aid of a printing press. Because the author and publisher hope that multiple consumers will use the work, they also had added duplication value, by causing multiple copies to be printed. From that point, other actors get involved in adding other types of value (although a vertically integrated publisher may play these additional roles as well). The U.S. postal service, Federal Express, or their many competitors add distribution value. The advertising agency retained by the publisher adds promotion value. A warehouse intermediary and a retailer add billing and collection value. The warehouse The most significant characteristic of post-publication activities with print-on-paper technology, compared with electronic network technology, is the effort expended by warehouse intermediaries, retailers, and shippers to store the extra copies of the work.15 A simple way to describe the change is to note that duplication and distribution value is added just in case, i.e. in advance of purchase for print-on- paper technologies, but only "just in time" after purchase in electronic network technologies. The storage activities are not without their advantages. The extra copies constitute evidence of copyright infringement when they have been made without the permission of the copyright holder, and thus are the kind of bottleneck that Ithiel De Sola Pool identified as a prerequisite to effective enforcement of intellectual property rights. Some electronic publishing technologies also use warehouses. Non-network, non-broadcast technologies (like optical or magnetic disk) add duplication and distribution value just in case, in advance of purchase. In this respect they are like print-on-paper technologies. The only important difference between non-network, non-broadcast electronic channels , and print-on-paper is much higher density of information representation and machine manipulability. The corner soapbox There is content value in all information products, but there may not be much of other kinds of value in some. Consider, for example, the metaphor of the corner soapbox. What the soapbox speaker says is raw content. There is little chunking and tagging value, except that an effective speaker divides his speech into chunks and tags those chunks with some kind of reference to an introductory statement of organization. But the individual chunks are not retrievable later according to their tags. Bedtime stories and the Gettysburg Address do not need internal pointers or external pointers value A basic distinction exists between utilitarian information and information intended for entertainment or persuasion.16 The most appropriate metaphor for entertainment information is a bedtime story. The Gettysburg Address is a metaphor for persuasive messages. Both entertainment and persuasion feature narrative rather than retrieval efficiency. For both bedtime stories and the Gettysburg Address, some types of value are unimportant and could even be detrimental. Additional chunking and tagging, internal pointers and external pointers value would diminish rather than increasing in utility. Information intended for entertainment and persuasion comes in larger chunks with fewer tags. Internal and external pointers value is less important because the information content is meant to be consumed serially, from beginning to end. Narrative development is an important part of the content value. Utilitarian information, in contrast, usually is less granular; it can be divided into relatively small chunks any one of which can be retrieved and used without regard to the other chunks making up the work. An article in an encyclopedia is a traditional example, as is a single section in a law book. For this kind of information, efficient chunking and tagging is extremely important, and good internal and external pointers are an important form of value. Promotion, billing and collection, and integrity assurance value similarly are unimportant. On the other hand, distribution and duplication value are important if the message is to be delivered electronically. Conventional and cable television represent optimal network configurations for the bedtime story and the Gettysburg Address. Analog technology is fine. It is only for utilitarian information that digital networks are clearly superior. Hooks and handles The important new characteristic is digital representation and continued post-publication machine processability. This has not been true with analog broadcast technologies used for conventional television and radio, and it has not been true with print-on-paper technologies, or for that matter telephone technologies. All electronic publishing technologies, regardless of whether they exhibit dramatic changes in distribution methods, exhibit machine manipulability.17 Machine manipulability means that a consumer can search for and retrieve something electronically. In order for consumers to do that, the information must be appropriately chunked, tagged, and the consumer must have access to well designed systems of external pointers and presentation. Electronic formats enhance the utility of these types of value. The card catalog Card catalogs in libraries are pure external pointers value. They are extremely good ways of identifying book- sized information chunks based on the needs of a consumer at a particular time. Electronic card catalogs implemented on networks, such as well designed gateways and other retrieval interfaces, are even more useful than conventional card catalogs because they can retrieve the desired information as well as identifying it and easily can be produced and marketed by entrepreneurs unrelated to the content to be retrieved (as long as the pointers are compatible with the chunks and tags). Newspaper routes Gateway/conference service providers are home newspaper routes. If the route delivery person does not carry the New York Times, but only the Washington Post, the New York Times faces a problem in reaching the particular market, and the consumers in that market have a hard time getting the New York Times. Access to a route can make a real difference in the total cost of a received product. Denial of access to a route carrier can be tantamount to denial of access to the market. But, refusal of access to this supplier of distribution value only makes the addition of distribution value inconvenient; not impossible. The barriers to entry are low, because of the modest fixed investment required. Although there is a natural monopoly within each market area at typical levels of demand because of large economies of scale, there are alternative channels: like newsstands. The appropriateness of this metaphor for the addition of distribution value in network communities has everything to do with assessment of the network market structure. Using metaphors The appropriateness of micro- and macrometaphors depends on the network architectures used, and network purposes. One group of metaphors may fit electronic mail and another group may fit from electronic publishing. Point to point EMail serves a private messaging function. The supplier of information knows who the consumer of it is when the information is transmitted. Typically, the supplier of the information prefers that persons other than the addressee not have access to the information. Two-party EMail presents little risk of injury flowing from wide public dissemination of message content. EMail users need access to networks or internetworks of wide scope because of the high transaction costs associated with making special ad- hoc arrangements with addressees. Equal access obligations are of small importance because of the practical alternative of connecting sender and addressee directly if network routing is not available -- at least as long as the voice telephone system is obligated to provide equal access and as long as it remains technologically suitable for EMail. Electronic publishing (which may use electronic mail out of its two-party context) involves exchanging information between suppliers and relatively large numbers of consumers, the identities of whom may not be known to the supplier at the time of transmission. Electronic publishing technologies involve relatively stronger needs for equal access obligations because suppliers of one kind of value need access to third party facilities in order to reach an audience effectively. When the architecture is vertically integrated and centralized, the supplier of communications and gateway services is also the supplier of content. Such a supplier has First Amendment rights with respect to the content value and has relatively less need for access to communications facilities controlled by third parties. Moreover, legally imposed obligations to provide access would raise major First Amendment concerns because of the close association of the database intermediaries with content. Trends in wide area networking have three implications for electronic publishing network policy. First, they make it harder for the supplier of any one type of value to reach markets without access to other parts of an integrated network, while reducing the advantages of centralization and vertical integration. Second, the trends weaken the conflict between First Amendment privileges and equal access duties because they tend to separate production of content, where First Amendment privileges are strongest, from production of distribution value, where bottlenecks and therefore equal access duties are most likely. Third, they involve blending communications and data processing activities, thus blurring the historical boundary between common carriers and ordinary, unregulated enterprises. Hohfeldian relationships and legal micrometaphors An assessment of rights and responsibilities in network communities begins with an inventory of persons or entities in such communities who may have rights or responsibilities. Rights or entitlements, in their simplest form, are bilateral. In two-party legal relations one party owes a reciprocal responsibility (a duty or obligation) to the other party who has a right. If I promise you, in a legally enforceable contract, to provide dialup access to my bulletin board, I owe you a duty to provide access and you have a right to access my bulletin board. I owe the duty only to you, and you have the right only with respect to me. The right and duty are the two sides of a bilateral legal relation, between you and me. The following matrix identifies potential owners of rights vertically along the left hand side, and potential owers of duties corresponding to those rights along the top. The nature of the particular responsibility/right is indicated in the cell corresponding to each two-party relation. author/publ communicati gateway/con ultimate third isher/datab ons service ference consumer party ase provider19 service (strange provider18 provider20 r) author/pu provide include pay for respect blisher/d access product informat any atabase provide ion used legal provider pointer to monopoly information product communica pay for pay for pay for respect tions access access access; any service honor use honor use honor legal provider restriction restriction use monopoly s s restrict ions gateway/c pay for provide pay for respect onference "listing" access informat any service honor use ion/poin legal provider restriction ters monopoly s used ultimate provide provide provide none consumer advertised access access content provide advertised service third respect do not do not ? parties privacy carry carry (stranger do not harmful harmful s) publish information information defamatory information do not infringe or aid in infringing intellectua l property rights The most fundamental questions are whether levels of demand or the risk of free riding are such than a monopoly must be granted to induce suppliers to enter the market (the intellectual property question); whether access to supply controlled by artificial legal or natural monopolists needs to be assured21 (the equal access, or common carrier, question) whether voluntary obligations of suppliers must be enforced (the Sheriff question) whether some means of shifting the incidence of loss from injurious conduct -- or prohibiting injurious conduct -- needs to be assured (the tort liability question) whether any of the legally imposed duties represents constitutionally impermissible governmental interference with expression (the First Amendment immunity question) The three macrometaphors present a simple model of mutually exclusive sets forming a useful baseline from which to evaluate specific interactions among the three main bodies of law. In the traditional world from which the macrometaphors are drawn, the print shop has First Amendment immunities from access requirements, and therefore has no common carrier obligations, but is subject to tort liability in the form of damages but not prior restraint in the form of an injunction. A telephone company has no First Amendment rights and no tort liability but does have access obligations. A broadcaster has tort obligations like the print shop, some First Amendment immunities, but perhaps weaker ones than the print shop, and some access obligations but weaker ones than the telephone company.22 Both the print shop and the broadcaster have intellectual property in the content they handle. The telephone system does not. There is a tension between First Amendment author or publisher status and having obligations to provide equal access. The equal access obligation dilutes the information provider's control over content because it forces her to handle material with which she may not agree, or whose quality she may not endorse. Equal access obligations are interrelated with application of tort liability concepts. The greater the obligation to provide equal access, the more unfair is exposure to tort liability. Tort liability is imposed for failure to screen out harmful material. Strong equal access obligations prohibit such screening. If the provider of network services faces liability for harmful material on her network, she certainly does not want to be forced by common carrier obligations to allow that content. Conflicts can be avoided by avoiding equal access obligations. Thus, the threshold question is whether legal intervention is appropriate to ensure equal access. If it is, First Amendment issues arise because of the resulting restrictions on the editorial discretion of network service providers subject to the equal access obligations and because tight equal-access regulation is more likely to make the regulated providers state actors and thus potential defendants in First Amendment claims by sources seeking access. If equal access regulation is not appropriate, First Amendment questions do not arise. Legal intervention to promote equal access comes in two forms. The strongest form is direct imposition of duties to afford equal access by the common law or by statute. An indirect form is the removal of disincentives to provide equal by reducing exposure to tort liability. Reducing exposure to tort liability, by itself, does not raise First Amendment issues. The censor Content control is important to all three branches of legal doctrine, and its influence balances to some degree the tensions among the three doctrinal branches. The greater the degree of content control, the lower the likelihood of common carrier equal access obligations. The greater the content control, the greater the exposure to tort liability. The greater the content control, the greater the First Amendment protection. Conversely, a network services provider with little content control, is more likely to have common carrier equal access obligations, less likely to have First Amendment protection, but also less likely to be exposed to tort liability. Producers cannot exert content control without controlling a bottleneck, but not all bottlenecks involve content control. The degree of content control in networks depends on the service being provided. Bulletin board moderators exercise the most content control. Gateway services and menu designers exercise less but still decide what sources will be included and what will be excluded. Sellers of network communication services exercise virtually no content control.23 Bottlenecks The most broadly useful new micrometaphor may be a bottleneck, because it isolates the equal access question. New bottlenecks may be appearing that threaten effective access to consumers by publishers. The law has usually responded in the past to these kinds of bottlenecks by imposing obligations to give access, either under the antitrust laws or through common carrier obligations. There is an apparent paradox in the bottleneck metaphor, however. The law approves -- and even creates -- certain bottlenecks - those associated with intellectual property rights. Such rights represent monopolies, and the association between monopoly and bottleneck is close. Yet, the law does not obligate the persons controlling these bottlenecks to give access to others. This seems paradoxical until one recognizes that intellectual property has not in the past approved significant information bottlenecks. Copyright allows independent creation and use of existing information, as long as copying or preparation of derivative works is not involved. Patent has not traditionally encompassed information, and trade secret is associated only with information that is not published generally. With electronic publishing technologies, that limitation may change; the law may protect and create information bottlenecks by protecting computer-to-computer interfaces and computer-to-human interfaces. The bottleneck metaphor encompasses many of the intellectual property, equal access, tort liability, and First Amendment issues. The controller of a bottleneck has potential First Amendment privileges to do with it as he wishes, but First Amendment privileges of potential network users may not mean much if they are excluded from the bottlenecks. Meaningful expression requires access that bottlenecks may eliminate. When a bottleneck actually exists, because there are not meaningful competitive alternatives to a channel, the bottleneck owner's First Amendment interests give way to the user's First Amendment interests realized in equal access obligations.24 Tort liability makes the existence of bottlenecks more likely because it increases the incentives for overbroad exclusions of certain types of information, increasing the need for equal access requirements. Searching for bottlenecks The barriers to entry in electronic publishing are much lower then they are for print publishing today. The electronic network market structure looks more like publishing at the time of the American Revolution then now, because the relevant markets are much easier to reach without access to sophisticated distribution channels. The time of the revolution, the market that mattered was a local community, and almost any member of the community was within a half hour walk of the publisher's shop. Now, of course, the print markets that matter are only practically accessible through large sophisticated chains of book distributors and retailers. Anyone who has a printing press can be a publisher, and printing presses have got a lot cheaper. All a publisher needs is a $1,500 PC, a $100 modem, and a telephone, and consumers who know about the publisher easily can get access to any information the publisher places and files on the PC. Channels between publisher and consumer are as numerous and diverse as the number of physical data communication paths that can be set up through the public telephone system, supplemented increasingly by a variety of terrestrial radio and satellite links. This characterization of market structure argues against any kind of legal obligation imposed on any particular channel to make its facilities available to either consumers or information suppliers. But this is not the whole story. There are economies of scale in electronic publishing and they are much greater than any that exist in print publishing, in 1790 or now. One example suffices. Suppose an electronic publisher is denied access to the public telephone system. He would pretty much be out of business. He cannot start his own global telephone system. In the long run, the price of direct satellite access may fall so that alternatives would be more readily available. But satellites are even more expensive than physical telephone networks. If the public telephone system is legally privileged to deny access, so presumably would be the owner of the satellite. So, at some level, legal obligations to give access are necessary. The hard question is how to separate those burdened with such an obligation from those not burdened. Presumptions One conceptual approach for choosing print shop, broadcasting or telephone service macrometaphors is to put the burden on the proponent of non-common carrier status to articulate how equal access would interfere with the basic purpose of the service. For example, a bulletin board conference intended to discuss strategies for opposing the unification of the European Economic Community could not serve that purpose if it had to accept messages relating to the desirability of reregulating the airline industry in the United States. A service intended to present the views of the bulletin board moderator, with reactions from the audience, could not fulfill its purpose if the bulletin board moderator must accept messages that compete with him for attention and supplant his role. The eighteenth century print shop metaphor fits. The telephone service metaphor, with its equal access obligations fits if acceptance even of obscene messages has no impact on service provided other customers. The utility of service provided my packets is unaffected by the content of your packets, so the packet communications should have to accept both yours and mine. The innkeeper: holding oneself out But bottleneck analysis is not enough. Hundreds of antitrust "essential facilities" cases reveal the difficulty of applying a principle that imposes equal access duties only upon those genuinely controlling a bottleneck.25 David R. Johnson proposes an approach to network rights and responsibilities that begins with a formal statement by suppliers of information value of the ground rules on which they intend to supply such value. One of the ground rules would concern access. Such an approach is not without precedent in the law. This is the approach of the Employee Retirement Income Security Act ("ERISA"). ERISA does not require employers to provide pension or health care or other welfare benefits, but it does require employers to set forth in a formal plan document, the terms of benefits the employer unilaterally elects to provide. Then the statute imposes obligations on the employer to honor the terms and gives access to federal court to persons injured by breach of this duty. Mr. Johnson's proposal invites attention to a micrometaphor. He would treat network service providers like innkeepers. At common law, an innkeeper was obligated not to refuse service,26 but only persons "professing" to be innkeepers were subject to the obligation.27 The "holding out" test became a central tenant of common carrier law, long before the Interstate Commerce Act or the Federal Communications Act were enacted. In other words, Mr. Johnson suggests that the holding out part of common carrier law be the centerpiece of network rights and responsibilities. Such an approach is essentially contractual, although its implementation requires attention to details of contract formation. For example, would a statement of terms of access be characterized as an offer which could be accepted by presenting a message within the terms, or is it merely a solicitation of offers which could not be enforced against the service provider? Also, the concept looks rather like an incipient tariff obligation. There is not much difference between a requirement that the services provider publish in advance the terms on which service will be provided and a requirement that the terms of a contract for carriage be published. The latter requirement is called a tariff. The baron's court The introduction to metaphors noted that rights and responsibilities can be understood not only as legal rights and duties, but also as softer norms of behavior observed in informal communities. Indeed, there is some historical evidence that Anglo-American legal institutions originated in community gatherings intended to decide how disputes should be resolved according to customs of the community. The roles of judges, lawyers, jurors and witnesses were not clearly distinguished.28 All of these roles aimed at bringing to bear knowledge of the customs of the community. More recent investigations conclude that formal law is a "flop" in many contexts because formal legal means of enforcing norms sometimes impose unacceptably high transaction costs. Informal adjustment imposes lower costs.29 Modern law defers to practice in specialized communities. One of the advantages of arbitration, for example, is that it brings to bear knowledge of the reality of a particular industry or community. Dispute resolution techniques that mobilize knowledge of network realities, decrease cost and conflicts, and promote consensual problem solving and informality are desirable. But promoting all those things does not answer the question how a decision about rights and responsibilities is to be implemented. Traditional English communities expelled or executed people not meeting their responsibilities, and the baron at the top of the feudal hierarchy had the power to make the ultimate decision. It is not clear that such baronial decisionmaking is appropriate for modern network communities. The sheriff Calling norms for behavior "rights" implies the existence of some means of enforcing the rights, of imposing sanctions for infringement of the rights. Legal systems provide those means through adjudicatory and enforcement institutions. An owner of a right can sue the ower of a corresponding duty for breach of the duty and infringing the right. If a court (or sometimes an administrative agency performing an adjudicatory function) finds that the breach actually occurred, it awards damages or orders future compliance. The sheriff, or an equivalent officer, eventually makes sure the plaintiff gets paid the damages or enforces the order. Any system of rights and responsibilities must have a metaphorical sheriff,30 along with the other adjudicatory and enforcement institutions. Members of networked communities can be their own sheriffs with respect to some rights and responsibilities, but not with respect to others. Sheriffs must have physical power over people or resources. Consider what the sheriff does with respect to the major categories of rights identified in the matrix. Communications service providers and gateway/conference service providers can be their own sheriffs. They can cut off any of the other actors who breach duties to them. But such self help can be undesirable. Such private termination is far less likely to be subject to adequate legal controls than public entity action to enforce restrictions on informational activities. If a public enforcement agency takes remedial action against a supplier of information content, state action is involved, triggering First Amendment, substantive and procedural due process, and equal protection safeguards. If a private supplier of conduit services takes the same remedial action, state action is unlikely to be involved, thus making First Amendment, procedural and substantive due process, and equal protection safeguards unavailable. The power of a supplier to terminate its relationship with a customer is unlimited by the law unless the customer can articulate and prove entitlement to a specific right based on statute, tort, or contract. This is just another way of saying that the terminated customer must prove that the supplier had a specific duty not to terminate services. Within broad limits defined by public policy, suppliers can write contracts that disclaim any duty to customers and leave the suppliers free to terminate service at will. Nevertheless, the potential for abuse of power by private sheriffs may be less than the preceding paragraph suggests. These private sheriffs differ from real sheriffs in important ways: real sheriffs have a monopoly; private sheriffs do not. The private sheriff's ultimate weapon is to eliminate one source of supply. If there are other sources of supply, the market serves as a substitute for procedural protections imposed by law. When the market does not make available such alternative sources either because of a monopolistic structure or because all competitors act the same, there is a commensurate need for greater legal procedural protection. When competitive forces are such that direct equal access regulation is not necessary they also are strong enough to protect against the abuses of private enforcement. The bottleneck metaphor once again is important. The other actors cannot practically be their own sheriffs. Authors/publishers/database providers, ultimate consumers, and third parties (strangers) must rely on other legal institutions for the enforcement of their rights. If a gateway/conference service provider promises to give equal access and then excludes a publisher, the publisher's remedy could lie in a common-law court for breach of contract, or it could lie in a complaint to an administrative agency. If an administrative agency has power to hear the complaint, it could simply adjudicate it like a specialized court, or it could mobilize a more complex enforcement system. Bureaucracy It is important to understand that equal access duties regulation need not involve the full panoply of FCC common carrier non-discrimination, tariffing, and price regulation. There is no reason that common carrier regulation must involve administrative agency implementation. Few bureaucratic burdens would be associated with a simple statutory declaration of access obligation, followed by private litigation over breaches of the obligation. Still it is difficult to force equal access (non- discrimination) without being drawn into controversies over pricing. Offering access only at excessive or discriminatory prices is not offering equal access. In turn, it is difficult to ensure non-discriminatory pricing without tariffing, because of the possibility of secret deals with favored customers. The history of railroad regulation suggests that any kind of common carrier regulation relating to non-discrimination is a kind of slippery slope that leads eventually to all the other kinds. Economic regulation tends toward more and more bureaucracy. The law takes the first step when it establishes a simple duty to provide equal and nondiscriminatory access. The second step occurs when someone with right to equal access asserts that the price charged for access is so high or so discriminatory or both that it is a constructive denial of equal access. To decide such claims, the institution charged with enforcing the equal access duty is drawn into evaluating the reasonableness of prices. The third step parallels the second. Even the simplest equal access requirements necessitate defining the population burdened with equal access duties. Consider the holding out theory. An unambiguous way of determining whether someone has held herself out as a common carrier is to require the posting or publication of some kind of formal notice. This notice is a tariff. Tariff requirements also facilitate price regulation under step two because it is easier to administer prohibitions against discriminatory pricing if the price to be charged is formally published in a tariff. The fourth step is taken because a tariff requirement spawns disputes over the boundaries of each tariff. Arguments arise over whether a service is covered by a tariff and therefore associated with common carrier equal access duties and associated with a particular price. The legislature establishes a permanent specialized administrative apparatus to hear claims and to administer the price and tariff regulation. The fifth step is the imposition of accounting and structural controls in order to reinforce cost of service price regulation. Describing the progressing from one step to the next implies that public policy should avoid the first step if it does not wish to reach the fifth. But this is not the only acceptable conclusion. It may be that political equilibria can exist at various points along the continuum. Conclusion Metaphors are a kind of shorthand in a policy dialogue about what rights and responsibilities should exist in networked communities. Choosing a traditional macrometaphor such as print shop, broadcasting, or telephone and telegraph service, determines what rights and responsibilities should be imposed on network users and network service providers. But none of these macrometaphors fits the evolving digital network architectures completely. They fail to take account of the phenomenon that information value can be produced locally and consumed globally and that several distinct types of information value can be produced and marketed separately, assembled through a digital network as a kind of electronic marketplace, in which intermediate suppliers and ultimate consumers assemble final information products on demand. A variety of micrometaphors, including soapboxes, bedtime stories, the Gettysburg Address, warehouses, and newspaper routes illustrate new features of digital network communities that must be considered in defining rights and responsibilities. Rights and responsibilities are two sides of elemental two-party legal relations. A matrix of actors and the kinds of rights, duties, and privileges that may define their relations with each other reveals that the crucial issues are whether equal access obligations should be imposed on network service providers, whether tort liability should be imposed on suppliers of information value, and how First Amendment privileges and immunities should shape legal obligations. These issues are best resolved by paying attention to the location of bottlenecks in networks, and to holding out by network service providers, or alternatively, by requiring actors resisting equal access obligations to show how such obligations would interfere with the essential nature of their product. Finally, the law must address power: who has the power to decide whether a right has been violated, and who has the power to enforce such decisions. _______________________________ 1 Webster's New World Dictionary 893 (2d New Coll. Ed. 1972). A simile is "a figure of speech in which one thing is likened to another, dissimilar thing by the use of like, as, etc." Id. at 1327. For example, "An electronic bulletin board is like a printing press." 2 Community: "2. A group or class having common interests: the scientific community. 3. Similarity or identity: a community of interests." American Heritage Dictionary. 3 Ithiel de Sola Pool, Technologies of Freedom (1983). See also Ithiel de Sola Pool, Technologies Without Boundaries (Eli. M. Noam ed. 1990). 4 Martin L. Ernst, Electronic/Print Competition: Determinants of the Potential for Major Change (1989) (number P-89-4) [hereinafter "Ernst"]. The purpose of the report was to identify specific strengths and weaknesses of electronic formats compared with print formats. 5 Process materials like reservations and order systems and office editing have high timeliness/currency, high manipulation of substance, low manipulation of format, and low format impact. Art forms and games like coloring books and jigsaw puzzles have low timeliness/currency, low manipulation of substance, high manipulation of format, and high format impact. Ernst at 39-41. 6 Ernst at 43. 7 See generally Sidney Kobre, The Development of the Colonial Newspaper (1960); Dickson J. Preston, Newspapers of Maryland's Eastern Shore (1986). 8 Cable and satellite broadcast alternatives increase competitiveness and diversity in the production of distribution value. 9 Robert W. Garnet, The Telephone Enterprise: The Evolution of the Bell Systems Horizontal Structure, 1876- 1909 (1985). 10 Each of the types of value could be quantified in terms of reduced cost to a consumer. For example, machine executable external pointers value greatly reduces the time required for a consumer to find a desired chunk of information. 11 Chunking-and-tagging value, internal pointers value and external pointers value increase utility to consumers because they reduce the cost of human browsing, searching, and retrieving. With print technologies, chunking-and- tagging value involves all basic typographic design features. Scanning a newspaper is easy because the material has considerable chunking-and-tagging value, primarily headlines. It also is easy because newspapers with state-of- the art design features have indexes (internal pointers value), which point to particular pages and story headlines (chunking-and-tagging value). Researchers make use of external pointers value when they consult the New York Times index or the Readers Guide to Periodical literature, which have pointers to human-processable tags and chunks. 12 The most obvious example is the print shop for the production of content value, and the telephone system as the macro metaphor for the production of distribution value. 13 Economist Fritz Machlup accomplished some of the most extensive analysis of the economics of information, beginning with his 1962 classic, The Production and Distribution of Knowledge in the United States. F.Machlup, The Production and Distribution of Knowledge in the United States (1962) [hereinafter "Machlup, Production and Distribution"]. He elaborated on this work in a multi- volume treatise, the first part of which was published in 1980, and which was interrupted by his death. See F. Machlup, Knowledge and Knowledge Production (1980) (vol. 1 in Knowledge: Its Creation, Distribution, and Economic Significance (F. Machlup, ed.)) [hereinafter "Machlup, Theory of Information"]; F. Machlup, The Economics of Information and Human Capital (1984) (vol. 3 in Knowledge: Its Creation, Distribution and Economic Significance (F.Machlup, ed.)) [hereinafter "Machlup, Economics of Information"]. 14 It also raises some interesting proof, archival and bibliographic (external pointers) issues, because the representation of information is inherently more ephemeral. There is no assurance that the content of an information product will remain static for any appreciable period of time. 15 All specialize in duplication value. 16 Of course the categories are not completely distinct. Information that is work related for some people or for one person some of the time can be entertainment for other people or for the same person at another time. 17 The only exception is the technology for bit-mapped page images. 18 This supplier supplies content, chunking and tagging and internal pointers value. 19 This supplier supplies distribution and duplication value. 20 This supplier supplies external pointers and presentation value. 21 This question and the one preceding it are particularly important in the electronic network context because of uncertainty about the level of demand for any particular network service or product. Very low or uncertain demand levels make suppliers reluctant to enter the market unless they are subsidized, or assured of a monopoly for some period of time. Patent and copyright monopolies are justified in large part by the necessity of granting such monopolies to induce inventive and literary production. Potential free riding on a literary work or an invention increases uncertainty and reduces projections of demand for the inventor or author's effort. Even in the absence of such state-granted monopolies, low levels of demand frequently result in the phonomenon of natural monopoly, in which the market can support only one supplier. Whoever is most efficient gets all the business. Large fixed costs for efficient production increase the likelihood of natural monopoly. 22 It is not quite as simple as the text suggests. Some activities protected by the First Amendment also are constrained by various forms of equal access requirements. See 5 Harv.J.L.&Tech. at 121-127. Tort damages against First Amendment actors have been constrained by the First Amendment under New York Times v. Sullivan, 376 U.S. 254 (1964), and its progeny. See Heber v. Lando, 441 U.S. 575 (1983). 23 The proposition, important in the FCC's Computer Inquiry II, that protocol conversion involves real content manipulation is wrong. 24 In Sun Belt Television, Inc. v. Jones Intercable, Inc., 795 F. Supp. 333, 336 (C.D. Cal. 1992), a federal district court held that a cable television system did not have an absolute First Amendment immunity to an antitrust essential facilities claim premised on denial of access to a television station wishing to use the cable system for distribution. 25 In Sun Belt Television, Inc. v. Jones Intercable, Inc., 795 F. Supp. 333, 337 (C.D. Cal. 1992), a federal district court rejected an essential facilities antitrust claim by a television broadcaster seeking access to a cable television system because the broadcaster did not plead that the cable facilities could not reasonably be duplicated by the television broadcaster or by a competing cable company. The court did not reach any factual conclusion based on feasibility of duplication of the facility; it allowed the plaintiff leave to amend its complaint. 26 Joseph H. Beale, The Law of Inkeepers and Hotels 124 (1906). 27 Beale 6 at 8 (obligation, defined by law, arose from undertaking); id. 13 at 11 (condition was whether the actor "professes" a public business); id. 19 at 19-20 (one could profess to be an innkeeper by hanging out a sign, but also could be found to have that status by inquiry into conduct). 28 Cf. F.W. Maitland, The Constitutional History of England 42 (1974) (describing early role of county court in which all free holders came together in an assembly and considered virtually all litigation). See also J. H. Baker, The Legal Profession and the Common Law: Historical Essays 160 (1986) (a court was "an assembly of wise men in a certain place at a certain day by whom right is to be done in a dispute to those who plead"); id. at 164 ("courts" [in 12th Centry England] were not very distinct from communities at large); George B. Adams, Council and Courts in Anglo- Normal England 52-53 & n.20 (1926) (describing informal and conversational mode of procedure in Curia Regis, the King's Council, suggesting lack of distinction between legislative and judicial action). 29 See Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes, 280-282 (1991) (reporting conclusions from study of Shasta County California cattle- trespass and boundary-fence disputes). Professor Ellickson suggests five principle subsystems for social control: Self- enforced personal ethics, two-party contracts, informally enforce norms, organization controls, and law, although in practice the subsystems are not always distinct. Id. at 282. 30 In early English law, the Sheriff was the King's representative, ensuring Royal control over local law and institutions. F.W. Maitland, The Constitutional History of England 41 (1974). The sheriff thus was a way of mitigating unilateral baronial power. .