Notes From the New World: The Future of the Internet, Editors
Notes From the New World: The F Internet, Editors' Foreword uture of the
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Recommended Citation Notes From the New World: Th e Future of the Internet, Editors' Foreword, 78 Fordham L. Rev. 2751 (2010). Available at: http://ir.lawnet.fordham.edu/flr/vol78/iss6/1
NOTES FROM THE NEW WORLD:
THE FUTURE OF THE INTERNET
EDITORS' FOREWORD ........................................... 2751
THE THEORY OF GENERATIVITY ...............
David G. Post 2755
THE FOURTH QUADRANT ...................
THE COMPATIBILITY OF PATENT LAW
AND THE INTERNET ........................ Jeanne C. Fromer 2783
THE INTERNET IS A SEMICOMMONS ..... James Grimmelmann 2799
NON-NETWORK BARRIERS TO
NETWORK NEUTRALITY ....................
Mark R. Patterson 2843
ACCEPTING JUSTICE KENNEDY'S DARE:
THE FUTURE OF INTEGRATION IN A
POST-PICS WORLD ................................ Daniel Kiel 2873
DNA AND DUE PROCESS ................
Brandon L. Garrett 2919
BASELESS PLEAS: A MOCKERY OF JUSTICE .......
Mari Byrne 2961
Colin Morrissey 3059
JUDGE OR JURY? DETERMINING DECEPTION
OR MISREPRESENTATION UNDER THE
FAIR DEBT COLLECTION PRACTICES AT.. ChristianStueben 3107
NOTES FROM THE NEW WORLD:
THE FUTURE OF THE INTERNET
This Symposium centers on two important recent books on the Internet:
David Post's In Search of Jefferson's Moose: Notes on the State of
Cyberspace' and Jonathan Zittrain's The Future of the Internet-And How
To Stop It.2 Last December, the authors were joined by other scholars for a
discussion of these books and other topics related to the Internet.
Presentations by Post and Zittrain were followed by presentations from and
discussions among the group. The pieces that comprise this collection
reflect this discussion, which can be characterized, in broad terms, as an
exchange on theories of Internet governance.
As Professor Post recounts in his piece, The Theory of Generativity,the
two authors used to joke that they were both working on different versions
of the same book.3 Indeed, there is significant overlap. Broadly speaking,
both Professors Post's and Zittrain's books deal with the concept of
generativity--"a system's capacity to produce unanticipated change
through unfiltered contributionsfrom broad and varied audiences"4-and
the bottom-up, Jeffersonian democratic power of the Internet to bring
communities together. Professor Post's book is largely retrospective,
investigating why the Internet developed in the decentralized and
selfgoverning manner that it did; Professor Zittrain's, as the title of his book
directly tells us, is forward looking. He questions how and whether the
Internet can and will preserve its generativity in the future.
In The Future of the Internet, Zittrain discusses various
phenomenafrom censorship to cybersecurity-according to both how "generative" a
given mechanism is and how non-generative ("sterile") it is. 5 In The
Fourth Quadrant,Zittrain adapts this framework and puts forth a model for
conceptualizing the governing mechanisms of the Internet. 6 In Zittrain's
1. DAVID G. POST, IN SEARCH OF JEFFERSON'S MOOSE: NOTES ON THE STATE OF
2. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET-AND How To STOP IT (2008).
3. David Post, The Theory of Generativity,78 FORDHAM L. REV. 2755 (2010).
4. ZITrRAIN, supranote 2, at 70.
5. Id. at 70, 73.
6. Jonathan Zittrain, The Fourth Quadrant,78 FoRDHAm L. REV. 2767 (2010).
"fourth quadrant" we find communitarian solutions to some of the threats to
the generativity and openness of the Internet.
In his own analysis of the theory of generativity, Professor Post
underscores the need for Jeffersonian communities to band together in order
to save the Internet's unique generative qualities. He reminds readers that
"[g]enerativity is part of the nature of this network because this network
would not be what it is-'the Internet'-were it not generative in the ways
Zittrain describes." 7 He draws a parallel between Zittrain's call for higher
ideals of "netizenship" and the "Civic virtue" advocated by the American
revolutionaries of Jefferson's age. 8
This Symposium collection highlights a more pronounced common
theme between Professors Post and Zittrain. In their respective pieces, The
Theory of Generativity and The Fourth Quadrant, both arrive at similar
conclusions about how to save the Internet from itself-that the power of
communitarian groups, coming together to "participate in online
interactions and within online communities" of users assuming their role as
"netizens," is the way for the Internet to continue to be a place of
innovation, creativity, and openness. 9 Both authors' pieces in this
collection focus on these groups. These groups comprise the hierarchical
but bottom-up communitarians in Zittrain's fourth quadrant. 10 They also
form the analogue in Post's essay to Jefferson's vision of a democratic
republic-groups marked by "a disinterested concern for the common good
and a sense of connectedness to one's fellow citizens in the new polity" 1
which Post examines in both Jefferson's Moose and The Theory of
In the essays that follow, James Grimmelmann of New York Law
School, and Fordham Law professors Jeanne Fromer and Mark Patterson
touch on some of the themes addressed by Post and Zittrain. In addition to
their discussion of Professors Zittrain's and Post's recent books, the
accompanying essays in the collection explore a variety of topics: the use
of patent law to maintain innovation on the Internet; 12 the Internet as a
semicommons; 13 and the number of important ways that various outposts
and highways on the Internet are not network neutral. 14
First, Professor Fromer explores how and whether patent law can be
structured to support-or alternatively, stifle-innovation on the Internet.
She concludes that patent law, through the promotion of innovation in
software, 15 can be compatible with the Internet's core values of
decentralization and generativity "if care is taken to tailor the application of
patent law to encourage the sort of software innovation underlying much of
the Internet's success." 16 In his piece, Professor Grimmelmann examines
the way in which the Internet as a "semicommons"-mixing private and
public use-contributes to the qualities of the Internet that Post and Zittrain
celebrate. Building on Professor Post's argument that decentralization
made the Internet successful and Professor Zittrain's argument that
generativity was the source of that success, Professor Grimmelmann adds a
third reason: that the Internet operates as a semicommons. The Internet, he
argues, "gets the property boundaries right,"'17 by "mix[ing] private
property in individual computers and network links with a commons in the
communications that flow through the network."'1 8 With the right balance,
"the Internet as a semicommons elegantly transforms the small-and-private
versus large-and-common antithesis into a compelling synthesis."'19 Next,
Professor Patterson's piece investigates the "shibboleth" 20 of network
neutrality. His essay evinces a tension in Post's and Zittrain's approaches
to network neutrality, and he seeks to move outward from their discussions
in order to engage in a "general, rather than application-specific" 2 1 inquiry
of the ways in which users of the Internet are affected by deviations from
neutrality. Patterson thus focuses on the Internet's "intermediating
role" 22-the means through which users find their "way on the Internet. '23
Professor Patterson concludes that "[a] truly neutral Net would require
more than technical neutrality; it could be ensured only by regulating or
restricting the ways in which those intermediaries operate." 24
The Fordham Law Review is honored to publish the exceptional
contributions of these scholars. The Law Review owes thanks to Professor
Abner S. Greene for organizing this Symposium, which follows a tradition
of capturing exchanges by scholars on significant recent books. 25
FordhamLaw Review, Volume 78
Symposium & Technology Editor
FordhamLaw Review, Volume 78
Notes & Observations
7. Post, supra note 3, at 2760.
8. Id. at 2764.
10. Zittrain , supranote 6, at 2770.
11. Post , supra note 3, at 2764.
12. Jeanne C. Fromer , The Compatibility of PatentLaw and the Internet, 78 FORDHAM L . REV. 2783 ( 2010 ).
13. James Grimmelmann , The Internet Is a Semicommons , 78 FORDHAM L. REV. 2799 ( 2010 ).
14. Mark R. Patterson , Non-Network Barriers to Network Neutrality, 78 FoRDHAM L . REV. 2843 ( 2010 ).