Drive around Boston in the wintertime and you might see an unusual sight – a shoveled-out parking space occupied by a lawn chair or a garbage can. Move that can or chair and park at your own risk – it’s possible that your tires will be slashed.
These parking spaces are a form of commons, David Bollier tells us. He’s a scholar at USC’s Annenberg Center, and co-founder of Public Knowledge, a public interest advocacy group faced on online culture and issues, and has recently authored a book on the history of the commons, titled “Viral Spiral“. He tells us, that a commons is “a shared understanding by a community of how to allocate a scarce resource.” In the case of a Boston winter, snow-free parking is a very scarce resource, and local understanding gives the person who shoveled a space the right to use it.
At their best, commons can provide order without law, through shared understandings. Needless to say, there can be tensions between government and commons government. According to Bollier, Boston’s mayor wasn’t thrilled that enforcement of this local understanding had escalated to property damage. On the other hand, he was reluctant to eliminate it, and ultimately told police to allow the arrangement to exist for two days of a snowstorm before moving garbage cans or chairs.
Bollier’s book is a history of the idea of the commons, spreading from the free software movement to projects like Creative Commons, into international projects like the open educational resources movement, Science Commons and investigations of open busines models. The commons is, obviously, an older idea; Bollier characterizes it as “ancient, new and misunderstood”. In thinking about the commons as an allocation of land for cattle, we’re in danger of missing other dynamics – the commons is a social system for managing shared resources, a source of collective purpose and the site of community tradition. (Bollier recommends Peter Linebaugh’s Magna Carta Manifesto, which discusses the Magna Carta as “an armistice between the commons and the king”.)
Until roughly 2000, Bollier argues that the public domain was the closest we had to the commons. Copyright traditionalists saw it as a junkyard, a wasteland of government documents and old sheet music. Jack Valenti, the legendary copyright industry lobbyist, argued, “A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues…”
It’s not a surprise, then, that legal academics came to questions about the public domain quite late. It also didn’t help that Garret Hardin’s essay in Science in 1968, “The Tragedy of the Commons”, which argued that overexploitation of a commons was inevitable, because so influential, especially in conservative circles. Bollier tells us that Hardin, before his death, backed off some of the stronger claims in the essay – he agreed that he wasn’t describing a commons, which could be governed by community rules, but a truly open, unregulated resource.
The idea of a commons got a great deal of strength from the software community, as Richard Stallman began searching for a legal structure to enshrine commons behavior around the creation of code. The “commune” of people building Emacs discovered that improvements needed to be shared and coordinated, otherwise the project could become unusable and incompatible. The GPL emerged as a legal enforcement mechanism for commons behavior, a way of legally protecting goods put into common ownership from being appropriated and walled off.
While free software emerged as a powerful, and often dominant, model, legal changes in the 1990s constrained the new infrastructure being built to develop the commons: the Sonny Bono copyright extension, the DMCA, changes to trademark law. This sets the stage for a complex argument about governing the commons, at a time when we’re discovering that the commons isn’t a wasteland, but a generative source of value.
Despite contributions by Yochai Benkler, Jonathan Zittrain, Larry Lessig and others, Bollier characterizes the question of how we govern the commons as “terribly undertheorized”. He points to Elinor Ostrom’s book, “Governing the Commons“, as a seminal work in the field, which suggests eight design principles for a succesful commons. They include:
– carefully defining boundaries around commons communities
– designing appropriation rules consistent with local resources
– building structures for monitoring and transparency
– implementing graduated sanctions against free riders and vandals (in other words, perhaps you warn the guy who took your parking space before slashing his tires.)
Bollier is now studying the emergence of business models around commons, and suggests that we need a new type of taxonomy around these digital commons. Individual commons are usually the product of historical circumstances and local peculiarities – the interesting questions are whether we can build a refined taxonomy of models that tend to emerge.
He offers a number of tensions that might describe this taxonomy:
Open versus free – There are many businesses that offer services for free, but that may be significantly different from building open systems. Will we see the emergence of business models that maintain communal values as an inalienable core? Or should we expect to see more situations of “digital sharecropping”, as Lessig identifies situations where creators are not in full control of their creations?
Individual choice versus community – Being able to choose a license privleges individual choice, and might undermine commons-building. While licenses like the GPL specify whether you’re in or out of the licensing regime, Creative Commons offers a more complex and individually driven set of choices.
Build within copyright or challenge the discourse around property? – Systems like Creative Commons and the GPL work within the intellectual property system. Some suggest that, as such, they reinforce questionable principles of a market economy for information goods and don’t fortify the commons.
Within this set of questions are different points of view reflecting different underlying concerns. Bollier sees groups on the left looking for ways to challenge corporate power and neoliberal economics by challenging intellectual property laws. These critics wonder why Creative Commons is so ready to play nice with corporations.
Critics from the global South suggest that it may be a mistake to depend on the institutions of western law and private property to govern their intellectual property. Their concerns are real ones – there’s an ugly history of corporate enclosure of indigenous knowledge by western companies. Fair use advocates wonder whether movements like Creative Commons are doing enough to challenge prevailing practices in copyright law – why carve out a new commons when we could better defend fair use?
There’s an obvious tension between commons and markets – Bollier is interested in the ways these models can work together. He outlines a set of options, from businesses that use user-generated content (everyone from Facebook to Flickr) to curated, open models like iPhone’s ap store, to more inventive models like Innocentive (inviting a community to contribute to research questions for incentives and prizes), up through market-oriented nonprofits and non-market cooperatives. His work isn’t prescriptive on this axis, so much as it’s a recognition that “the commons ia a new social metabolism for governance and law, with economic and cultural impacts,” likely to change how we think about all aspects of production in the long run.
Bollier’s talk sparked an interesting round of questions and comments. Charlie Nesson suggested that we no confuse law and principles. We live under the law, but we may choose other organizations based on principles they support. Mako Hill offered an interesting provocation, suggesting that open software is in crisis, as fewer people are running software on their own platforms, and more of us are dependent on software that’s hosted and controlled by others. He wonders, “How do we build network services that are community-produced and serve as shared artifacts?” Wendy Seltzer wonders whether commons can scale, or whether they’ve got natural limits. There aren’t a lot of easy answers to these questions, but Bollier points to some emerging technologies, like openID, which might serve as “prostheses” to let communities scale beyond natural limits on a commons.