Webs of Life: Biodiversity Conservation as a Species of Information Policy

Abstract

Legal scholarship on information policy often invokes environmental metaphors. Some scholars fear that repeated legal resort to spatial metaphors will balkanize the World Wide Web, while others urge policymakers to treat telecommunications infrastructure as an environment rather than a highway. Still others urge the development of an intellectual commons movement based on political activism among environmentalists.

This article brings the grand analogy full circle. How would environmental policy look if we treated the biosphere as an information platform? This article compares the natural environment with other information platforms such as the Internet. At the appropriate level of abstraction, the electronic commons and the biosphere present similar regulatory challenges. The two realms do differ fundamentally. Although humanity is generating and accruing information of its own design at an exponential rate, human activity is destroying biological information at a pace that qualifies our time as one of the great extinction spasms in geological history.

This article then sharpens the comparison between natural and electronic information platforms on a layer-by-layer basis. Every information platform consists of three layers: physical, logical, and content. The biosphere is no exception. This article derives two principles from an examination of the end-to-end principle that underlies the design of the Internet: the maintenance of competitive neutrality and the tailoring of property rules according to the rivalrousness in the use of resources.

Components of the environment can and should be analogized with the corresponding parts of a communications network. Land masses, bodies of water, and the atmosphere comprise the physical layer of the environment, while the genetic information encrypted in species and individuals represents the content layer. As is true of communications networks, the logical layer defies easy definition. The incompletely theorized concepts of ecosystem productivity and stability appear to be the best candidates. At each layer, varying degrees of rivalrousness suggest divergent approaches to defining rights in different components of the environment and to patrolling the exercise of those rights.

This comparison of natural and human information platforms concludes with a glimpse at the expressive, even quasireligious aspects of the natural world as humanity's deepest well of creative inspiration. Just as the romance of authorship has severely impaired the development of cogent policy for intellectual property in a globalized, information-based society, ineffaceable traces of ecologically inspired spirituality often hamper the quest for solutions to humanity's deepest environmental crises. This article closes with a brief and necessarily imperfect prognosis of the law's ability to reconcile natural spirituality with scientific knowledge.

Keywords: biodiversity, endangered species, habitat destruction, invasive species, biopiracy, ethnobiological knowledge, information policy, information platforms, physical layer, logical layer, content layer, applications layer