Praise for Think Like a Commoner

The Commons is among the most important and hopeful concepts of our time, and once you’ve read this book you’ll understand why!

—Bill McKibben, author Deep Economy

Think Like a Commoner is a brilliant, accessible, practical, path-breaking intellectual tour de force. A defining contribution to the New Economy movement and an essential read for everyone who cares about the human future. I expect to return to it as a basic reference for years to come.

—David Korten, author, Agenda for a New Economy, board chair YES! Magazine, and co-chair, New Economy Working Group

The commons is truly the new paradigm, the missing third link for the reform of civilization. But the commons is not a thing, but above all the expression of a cultural revolution and of subjective changes. David Bollier has done a great job of explaining the importance of this great cultural shift.

—Michel Bauwens, Founder, Foundation for Peer-to-Peer Alternatives

Our world is in need of reviving an ancient wisdom if it is to survive. David Bollier has a beautiful, bold but practical vision for our commons future and lights the path forward. I love this book!

—Maude Barlow, National Chairperson of the Council of Canadians; international water activist

It probably surprises you to know that the wealth we own together as a commons is far more valuable than the wealth that we and corporations own separately. Corporations know this and have commercialized or taken control of what we the people own – such as the public airwaves, the public lands, our genes and trillions of dollars of knowledge (eg. research and development) paid for by taxpayers – for starters. For this and more you must read Bollier’s brilliant distillation of the huge variety of commons and how we can take control of what we own in order to transform our economy for us, our posterity and the planet. Once you pick it up, you’ll tremble with the excitement of what we all own in the form of the commons that somehow escaped our notice in our years of formal education.

——Ralph Nader, Consumer advocate and author, Unstoppable: The Emerging Left-Right Alliance to Dismantle the Corporate State

Copyright © 2014 by David Bollier. All rights reserved.

This book is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. See creativecommons.org/licenses/by-sa/3.0/deed.

For more information, including citations and recommended readings for each chapter, go to thinklikeacommoner.com

Cover design by Diane McIntosh. Illustration © iStock (ARTQC).

First printing January 2014.

New Society Publishers acknowledges the financial support of the Government of Canada through the Canada Book Fund (CBF)for our publishing activities.

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Think like a commoner : a short introduction to the life of

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ISBN 978-0-86571-768-8 (pbk.).—ISBN 978-1-55092-559-3 (ebook)

1. Public goods.  2.  Commons. 3.  Capitalism. I.  Title.

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For Jonathan Rowe (1946–2011), whose beautifully insightful writings about the mysteries of the commons remain an inspiration.

INTRODUCTION

WHEN MY SEATMATE on the airplane turned to me and abruptly asked, “So what do you do?” I replied that I study the commons and work as an activist to try to protect it.

Polite bewilderment. “Say what?” It was not the first time. So I cited the familiar references — the Boston Common and medieval pastures — and moved on to the so-called tragedy of the commons, the meme that brainwashed a generation of undergraduates.

Sensing a quiver of interest, I ventured further, mentioning open source software, Wikipedia and Creative Commons licenses. At the risk of overwhelming my captive seatmate, I ticked off a list of commons that are rarely seen as commons: the vast public lands containing minerals and forests, the broadcast airwaves that TV stations use for free, urban spaces, the human genome. I mentioned the wonderful community festivals in my hometown, the “gift economies” of blood donation systems and the commons of language itself — a resource that is free to anyone to use, but whose letters and words are fast becoming proprietary trademarks. Then there are the fisheries, farmland and water that an estimated two billion people around the world manage as commons to meet their everyday needs.

I half expected my new friend to turn back to her book or gaze out the window at the fleecy clouds over the Great Plains. Instead she brightened. “Oh, I get it! The commons are things that no one owns and are shared by everyone.”

Well put.

She mused that the park where she walks her dog and mingles with strangers is a commons — and so is the online listserv about parenting that she belongs to. She cited a lake near her home, and the downtown plaza where all sorts of public events are held.

In the modern industrialized countries of the world, the commons tends to be a baffling, alien idea. The word may be invoked to make faux-genteel allusions to Merrie Old England (“Coxswain Commons Apartments”), but otherwise it has scant currency. We don’t really have a language for naming commons — real commons — and so they tend to be invisible and taken for granted. The commons is not a familiar cultural category. Anything of value is usually associated with the “free market” or government. The idea that people could actually self-organize durable arrangements for managing their own resources, and that this paradigm of social governance could generate immense value — well, it seems either utopian or communistic, or at the very least, impractical. The idea that the commons could be a vehicle for social and political emancipation and societal transformation, as some commons advocates argue, seems just plain ridiculous.

The point of this book is to gently dispel such prejudices and provide a short introduction to the commons. After encountering so much confusion about the commons over the years — and seeing how rich bodies of commons-oriented scholarship are inaccessible to the lay reader, and commons-based activism and projects are scattered, ignored or misunderstood — I decided it was time to write a short, accessible synthesis of the topic. (Confusingly, “commons” is both the singular and plural of the term, and some people make things even more confusing by using the word “common” instead of “commons.”)

I want you, my reader, to imagine that you are my quizzical seatmate as we begin a short flight. You have intuitions about the commons and the need for social cooperation. You surely know about the dismal performance of corporate capitalism and government. You may even be concerned about the alarming privatization of countless public resources, the proliferation of ads in every nook of everyday life and the growing list of stubborn environmental problems.

For my part, I have many stories to tell about the power of commons to address such problems in innovative, socially minded ways. After researching and writing about countless “enclosures” of commons — in which corporate interests appropriate our shared wealth and turn it into expensive private commodities — I have learned how dangerous our ignorance of the commons is. It simply enables the private plunder of our common wealth, as the subtitle of my first book on the commons, Silent Theft, put it.

We have so few words to name the pathologies of markets and the feasible commons-based alternatives. I like to think that by naming the commons, we can learn how to reclaim it. We can begin to gain a healthy perspective on the limits of markets and learn how to participate in acts of commoning with others. And we can reap many benefits — economic, social, political, civic, physical, aesthetic, even spiritual — that simply can’t be bought at a store.

The many misconceptions that surround the commons bother me. So I want to explain why the history of the commons and the political vision it sets forth are a cause for optimism. I want to explain how the commons can ameliorate our economic troubles by advancing a richer theory of value than conventional economics. This is not just an idle academic concern but an urgent practical one — because too much of the world’s economic and political life revolves around voracious markets and the ecological damage and warped human relationships they engender.

Countless real-life commons — for natural resources, online information and civic life — provide a vital counterpoint. These commons integrate economic production, social cooperation, personal participation and ethical idealism into a single package. They represent a practical paradigm of self-help and collective gain. The commons is essentially a parallel economy and social order that quietly but confidently affirms that another world is possible. And more: we can build it ourselves, now.

As we will see in the pages below, the commons holds great promise for reinventing dysfunctional governments and reforming predatory markets. It can help us rein in our overly commercialized consumer culture. It can usher in new forms of “green governance” to protect the environment. At a time when our representative democracy has become a gaudy charade driven by big money and remote bureaucracies, the commons offers new forms of on-the-ground participation and responsibility that can make a real difference in people’s lives.

I should stress that the commons is neither a “messaging strategy” of the sort favored by campaign publicists, nor an ideology or dogma. It is not just a new name for the “public interest.” It amounts to a kind of political philosophy with specific policy approaches, but it goes much deeper because it engages us as fully human and complex creatures.

As a paradigm, the commons consists of working, evolving models of self-provisioning and stewardship that combine the economic and the social, the collective and the personal. It is humanistic at its core but also richly political in implication, because to honor the commons can risk unpleasant encounters with the power of the Market/State duopoly.

The Market and State, once very separate realms of morality and politics, are now joined at the hip: a tight alliance with a shared vision of technological progress, corporate dominance and ever-expanding economic growth and consumption. Commoners realize that this is not just a morally deficient, spiritually unsatisfying vision for humanity; it is a mad utopian fantasy. It is also ecologically unsustainable, a crumbling idol that can no longer command the respect it once took for granted.

In response, the commons sets forth a very different vision of human fulfillment and ethics, and invites people to achieve their own bottom-up, do-it-yourself styles of emancipation. It has little interest in hidebound party politics, rigid ideologies or remote centralized institutions. It seeks to build anew, or, as R. Buckminster Fuller memorably put it, “to change something, build a new model that makes the existing model obsolete.”

That’s what a robust commons movement around the world is doing. It is pioneering new forms of production, more open and accountable forms of governance, innovative technologies and cultures and healthy, appealing ways to live. It is a quiet revolution — self-organized, diversified and socially minded. It is pragmatic yet idealistic and, for now, only occasionally engaged in mainstream politics or public policy. Yet it has been steadily growing, in most instances outside the gaze of the mainstream media or the political establishment. It seems poised to “go wide,” as they say in the movie business, because the various tribes of transnational commoners are starting to find each other. They are coordinating their work and thinking and developing ways to make common cause in the face of the growing dysfunctionalities and anti-democratic paranoia of the Market/State.

I hope that in the coming flight I can explain the refreshingly different logic and social dynamics of the commons as it is now unfolding in numerous contexts. I promise to keep things short, accessible and interesting — while pointing as much as possible to the rich complexities and unresolved questions that demand further attention. We will traverse some of the eclipsed history of the commons, revisit the smear known as the “tragedy of the commons” and see how social scientists and activists have rediscovered the commons over the past generation.

We will also explore the ways in which the commons raises profound questions about the standard market narrative about property rights, markets and value — and how it proposes very different foundational premises for a new political economy. In its deepest reaches, the commons goes way beyond the plane of economics, public policy or politics. As we will see in Chapter 10, it points us toward a very different mode of human existence (ontology) and human knowledge (epistemology) than the ones to which we have become accustomed. The commons suggests new models of human morality, behavior and aspiration that go beyond the benighted models taught in Economics 101.

No survey of the commons would be complete without an overview of the varieties of enclosure now dispossessing communities and degrading the environment and culture. Diverse realms of our common wealth — water, land, forests, fisheries, biodiversity, creative works, information, public spaces, indigenous cultures — are all under siege. The encouraging news is that, despite rampant market enclosures, commoners are responding with a remarkable range of hardy, innovative models. In the pages ahead, we will encounter some of the more impressive and replicable responses: the “copyleft” licenses for free software and free culture; collaborative websites and other forms of peer production; subsistence commons that share seeds, land, water and other natural resources; stakeholder trusts for managing large-scale common assets; relocalized food systems that blend community engagement with market provisioning; among many others.

Pull back to a wide-angle perspective and one can see diverse stands of history, politics and commoning crystallizing into a coherent new paradigm. Some of us dare to imagine a commons renaissance. A recent book that I co-edited with Silke Helfrich, The Wealth of the Commons: A World Beyond Market and State, documents the staggering international breadth and vitality of commons activities and advocacy. The commons can now be seen in German ecovillages and Chilean fisher commons; in thousands of open-access scientific journals; in an explosion of alternative currencies used by local communities; and in urban gardens that grow food and social connections.

These developments bear witness to the reality, made abundantly clear by the 2008 financial crises, that the prevailing dogmas of market individualism, private property rights and neoliberal economics cannot, and will not, deliver the kind of change we need. And yet the traditional advocates of reform, liberals and social democrats, while generally concerned with market abuses and government malfeasance, are themselves too exhausted to imagine new paths forward. They are too indentured to the Market/State mindset and cultural outlook, and too naive or spineless in the face of finance capital, to entertain new forms of governance and institutional innovation. Contemporary liberals and social democrats may pretend to want ambitious social and political transformation (“Change We Can Believe In,” etc.), but the harsh political truth is that they are content to muddle through and cling to the sinecures of power.

I hope our flight together goes briskly. Before we descend, I want to contemplate the future of the commons paradigm as it confronts the aging dogmas of neoliberal ideology. How can we unseat a “free market” theology that cannot deliver on its promises and yet will not allow serious consideration of alternatives? Our archaic system of nation-states and international bodies cannot mobilize itself to deal intelligently with a gravely imperiled planetary ecosystem. It resists serious measures to improve social justice and fair distribution.

In the face of the colossal troubling dysfunction of neoliberal governance, a growing movement of commoners from India and Italy, Germany and Brazil, the US and the UK and many other regions of the world — furiously coordinating through the global Internet culture — are cobbling together a new shared imaginary for change. This is no ideological pipe dream or utopian fantasy. It is a piecemeal revolution of savvy, pragmatic dreamers determined to build living, functional alternatives in the face of many looming catastrophes.

There just might be some turbulence ahead. . .but for now, sit back, relax and enjoy the flight. Let’s talk about the commons.

1

THE REDISCOVERY OF THE COMMONS

THE WOMEN OF ERAKULAPALLY — a small village two hours west of Hyderabad, India — spread a blanket onto the dusty ground and carefully poured sacks of brightly colored, pungent-smelling seeds into thirty piles: their treasure. For these women — all of them dalit, members of the poorest and lowest social caste in India — seeds are not just seeds. They are symbols of their emancipation and the recovery of their local ecosystem. The homegrown seeds have enabled thousands of women in small villages in the Andhra Pradesh region of India to escape their fate as low-paid, bonded laborers, and to remake themselves as self-reliant, proud farmers.

In 2010, when I visited Erakulapally under the auspices of the Deccan Development Society, Indian food prices were soaring by 18 percent a year, bringing social unrest and hunger to many parts of the country. But five thousand women and their families in seventy-five Andhra Pradesh villages not only had enough food for their needs — two meals a day instead of one, as previously — they had achieved food security without having to rely upon genetically modified seeds, monoculture crops, pesticides, outside experts, government subsidies or fickle markets. Their achievement of food sovereignty, as it is called, has been remarkable because they are outcasts many times over: they are women, socially shunned “untouchables,” poor, rural villagers.

During the Green Revolution of the 1960s and 1970s, governments and foundations in the West made a big push to introduce large-scale commercial rice and wheat production in so-called developing countries. This helped mitigate hunger in the short term, but it also introduced crops that are alien to many Indian ecosystems and that require harmful and expensive pesticides. The new crops are also more vulnerable to drought and volatile market prices. Tragically, the Green Revolution displaced the traditional millet-based grains that generations of villages had once grown. The expense and unpredictability of market-based monoculture crops — and the agricultural and financial failures that often resulted — are widely blamed for an epidemic of two hundred thousand farmer suicides over the past decade.

The women of Erakulapally discovered that traditional crops are far more ecologically suited to the semi-arid landscape of Andhra Pradesh and its rain patterns and soil types than proprietary seeds from the West. But to recover the old biodiverse ways of farming, the women had to ask their mothers and grandmothers to search for dozens of old nearly forgotten seeds. Eventually, in attics and family safe boxes, they found enough seeds to do a planting, and finally, after many additional rounds of cultivation, revived their traditional “mixed crop” agriculture. The practice consists of planting six or seven different seeds in the same field, which acts as a kind of “eco-insurance.” No matter if there is too much or too little rain, or if the rain comes too early or too late — some of the seeds will grow. Families will have enough to eat no matter the weather — and there will be no need to buy expensive genetically modified seeds or synthetic pesticides and fertilizers.

The recovery of traditional agriculture did not come through “technology transfer” or government-sponsored agricultural research. It came through a do-it-yourself process of recovering the “people’s knowledge” and deliberately encouraging social collaboration and seed sharing. In seed-sharing villages, every farmer now has a complete knowledge of all the seeds used, and every household has its own “gene bank,” or collection of seeds, at home.

“Our seeds, our knowledge” is how the women put it: every seed is a capsule of their knowledge. No one is allowed to buy or sell seeds; they can only be shared, borrowed or traded. The seeds are not regarded as an “economic input.” Villagers have a “social,” almost mystical relationship with the seeds, which is a subtle but important reason that the women were able to emancipate themselves. “Every crop has a meaning in a women’s life,” said P. V. Satheesh of the Deccan Development Society. “The seeds are a source of dignity.”

THE SEED-SHARING COMMONS of Andhra Pradesh illustrate an important feature of commons: they can arise almost anywhere and be highly generative in unlikely circumstances. There is no master inventory of commons. They can arise whenever a community decides it wishes to manage a resource in a collective manner, with a special regard for equitable access, use and sustainability.

The title of this chapter, “The Rediscovery of the Commons,” has a certain ironic edge because for hundreds of millions of people around the world, the commons has never gone away. It has been a part of their daily lives for centuries. It nourishes them every day with food, firewood, irrigation water, fish, wild fruits and berries, wild game and much else. But these commons, like those of Native Americans and other indigenous peoples, have often been regarded, even today, as invisible or trivial. As most economists will tell you, only markets have the power to meet our essential needs. The recent “rediscovery” of the commons suggests otherwise. Market-obsessed industrialized societies are coming to realize that the Market and the State are not the only ways to organize society or manage resources.

But the path to understanding the commons requires a willingness to think in particulars, see the creative potential of social relationships and surrender the search for abstract universals and predictable certainties. The commons works because people come to know and experience the management of a resource in its unique aspects. They come to depend on each other and love this forest or that lake or that patch of farmland. The relationships between people and their resources matter.

History matters, too. The particular historical circumstances, leaders, cultural norms and other factors at a given moment in time can be critical to the success of a commons. Commons persist and grow because a defined group of people develop their own distinctive social practices and bodies of knowledge for managing a resource. Each commons is special because each has evolved in relationship to a specific resource, landscape, local history and set of traditions.

Consider the improbable circumstances that gave rise to one of the most successful, widely used software programs in history, the commons known as GNU/Linux.

LINUS TORVALDS was a 21-year-old undergraduate in Finland in 1991 when he decided to write his own computer operating system. It was a ridiculously ambitious project because operating systems are horrendously sprawling and complicated — things that only large corporations can afford to create and distribute. But Torvalds was fed up with the cost and complexity of Unix, a leading mainframe program, so he set out to build a Unix-like operating system that would work on his personal computer. As luck had it, the Internet was just coming into vogue as a popular medium for email and file transfers (the World Wide Web had not yet been invented).

Torvalds released an early version of his program to an online group, and within a few months, hundreds of people had volunteered useful suggestions and bits of code. Within a few years, a collaborative community of several hundred hackers had come together to work on the new program. He called it Linux — a wordplay that combined “Unix” with his first name, “Linus.” Several years later, when the so-called Linux kernel was combined with a suite of programs known as GNU developed by Richard Stallman, founder of the Free Software Foundation, a complete operating system that could work on personal computers was born: GNU/Linux, often known simply as “Linux.”

This was an astonishing and unexpected achievement. It not only demonstrated that amateurs could create a highly complex software program; it also showed that the Internet is a highly productive hosting infrastructure for social collaboration. A virtual community of self-selected hackers, with no payroll or corporate structure, had organized themselves into a fiercely creative, innovative, merit-driven commons. Remarkably, it worked!

The Linux experiment proved to be a foundational model for what is often known as “commons-based peer production,” a type of online collaboration that invites huge numbers of people to join forces via open network platforms. The GNU/Linux model of commoning was the social pattern that later inspired collaborative projects like Wikipedia (and hundreds of less renowned wikis) and open-access scholarly journals, in which academic disciplines reclaim control over their work from commercial publishers and make it free and shareable. Linux has also made possible such recent innovations as social networking; crowdsourcing of information and fundraising; and open design and manufacturing projects such as the Global Village Construction Set, a collection of fifty types of affordable farm equipment produced using open source principles.

As we will see in Chapter 8, the Linux experiment defied some seemingly inviolate principles of economics. It showed that the interplay of rational, self-interested individuals bargaining in the marketplace is not the only way to create wealth. Indeed, it showed that “wealth” itself is much more than fabulous sums of stocks, bonds and cash. Serious wealth can also be a community asset and the rich set of social relationships that make community possible. The Linux story is a stunning proof that the commons can be highly generative and contemporary as well as being entirely practical and effective.

THERE IS NO STANDARD FORMULA or blueprint for creating a commons; that’s what examining any particular commons reveals. Nor is the commons some panacea or utopia. Commoners often disagree among themselves. There are personality clashes as well as internal debates about what works best and what’s fair. There can be structural governance problems and external political interference. But commoners are intent on addressing difficult practical questions such as, What’s the best way to irrigate these forty acres when water is scarce? and What’s a fair way to allocate access to a dwindling fishery in this coastal bay? Commoners are also not afraid to tackle the problem of shirkers, vandals and free riders: individuals who want benefits without corresponding responsibilities.

The point is that the commons is a practical paradigm for self-governance, resource management and “living well.” Commoners can often negotiate satisfactory resolutions to meet their common purposes without getting markets or government bureaucracies involved. They struggle to figure out the best structures for managing a collective resource, the procedures for making rules and operational norms that work. They understand the need to establish effective practices to prevent over-exploitation of their forest or lake or farmland. They can negotiate fair allocations of duties and entitlements. They like to ritualize and internalize their collective habits and stewardship ethic, which over time ripen into a beautiful culture.

A constant challenge is the tendency of some people to “defect” from a common agreement and undermine potential schemes that would otherwise benefit everyone. This can lead to private profiteering from a collective resource or, worse, a chaotic free-for-all that destroys the resource. This is known as a “collective action problem.” Social scientists spend a lot of time studying why collective action problems can be so intractable and how they may be overcome. We will explore this issue further in Chapter 2.

It helps to understand that commons are not just things or resources. Outsiders to commons scholarship are prone to this mistake, either because they are economists who tend to objectify everything or because they are commoners declaring that a certain resource ought to be governed as a commons (what I call an “aspirational commons”). Commons certainly include physical and intangible resources of all sorts, but they are more accurately defined as paradigms that combine a distinct community with a set of social practices, values and norms that are used to manage a resource. Put another way, a commons is a resource + a community + a set of social protocols. The three are an integrated, interdependent whole.

Seen from this perspective, the question is not whether Pink Lake in Senegal or genomic databases on the Internet are commons, but rather whether a particular community is motivated to manage such a resource as a commons; and can it come up with the rules, norms and enforceable sanctions to make the system work? When put this way, it is interesting to consider the improbable types of common-pool sources that can be governed as commons.

A CLAN OF MUSCLE-BOUND SURFERS on the North Shore of Oahu, Hawaii, share a passion for catching big waves at Banzai Pipeline Beach. The Pipeline has been likened to the Mount Everest of surfing — a place where the best go to prove their mettle and talent. Not surprisingly, there is enormous competition over who is entitled to ride which waves — and resentment against outsiders who don’t respect the surfing protocols that the local crowd has developed. “It’s a dangerous environment, and without a self-governing control pattern, it would just be chaos out there,” Randy Rarick, executive director of the Vans Triple Crown of Surfing competition, told a reporter for the New York Times. Another surfer pointed out that “there are serious consequences if you drop in on somebody and they got hurt, or if you wipe out and hurt yourself.”

To deal with these issues, a self-organized social collective known as the Wolfpak came together to manage how people may use a beloved but scarce local resource: the massive waves. Wolfpak members have evolved their own rules for the orderly, safe and fair use of the waves, and for maintaining their own community. They decide who can catch which waves, and they punish those who violate their social code of surfing etiquette. Isaiah Helekunihi Walker, a history professor who has written about the surfing culture on North Shore, noted, “For the Hawaiians, respect is an important concept, particularly when it comes to being in the ocean.” When surfers from Australia and South Africa arrived at the beach, boasting of their prowess, the locals at the Pipeline didn’t take it very well.

There have sometimes been conflicts among surfers, especially between locals and outsiders. Which raises an interesting question: Who is the more legitimate steward of the Pipeline, the local surfing fans or the state authorities, who have the legal authority to manage the beach? Should the concerns of local surfers be allowed to trump those of outsiders? Whose commons is it, anyway? And what are the fairest, most effective means for protecting it?

The Wolfpak commons resembles certain Boston neighborhoods that have come up with their own rules of managing street parking during the snowy winter months. When Boston is hit with a big snow, it immediately becomes harder to find a place to park your car on the street. This can impose hardships on people who don’t live in a detached single-family home with a garage. So in some neighborhoods, residents have developed a shared understanding that if you take the trouble to shovel out several feet of snow to create a parking space for your car, you are entitled to park there until the snow melts. People indicate their right to park in a given space by putting a rusty old folding chair or other battered household item in the empty parking spot.

It is not uncommon for outsiders to the neighborhood to try to remove the folding chairs and try to park there. Or sometimes a neighborhood resident will try to sneak into someone else’s spot. This is the classic free rider problem, and it has been known to trigger scuffles and conflicts. Neighborhood residents wish to enforce their informal non-statutory rules.

Professor Elinor Ostrom once told me that this was a commons. I was perplexed. How? Why? She explained that the neighborhood’s self-organized rules for parking during a snow represent “a shared understanding about the allocation of scarce use rights”; in this sense, it is a commons. Like the Wolfpak’s allocation of access to big waves, the Boston neighborhoods’ “parking commons” are a case of successful self-governance.

But from the perspective of government, neighborhood parking commons are a case of “taking matters into your own hands.” Governments tend to be jealous of their authority and hostile to even small incursions on their ability to make and enforce official policy. On the other hand, the lesson from the Wolfpak and the parking commons is that local commons can provide types of management and order that government bureaucracies and formal law cannot. Boston snowplows may not reliably clear the streets of snow, and the city government’s enforcement of parking rules may be unreliable or expensive. Hawaiian authorities may not wish to hire a police officer or lifeguard to patrol Banzai Pipeline Beach (leaving a void of governance?), or such tasks may be seen as too impractical or “small” for a large bureaucracy to address.

But the commoners? They often have their own deep stores of knowledge, imagination, resourcefulness and commitment. Their informal governance may in fact outperform official forms of government.

In fact, as explicit negotiations among commoners become so engrained that they settle into habit, custom becomes a kind of invisible “vernacular law.” Vernacular law originates in the informal social zones of society — coffeehouses, schools, the beach, “the street” — and becomes a source of effective order and moral legitimacy in its own right. Social norms such as queuing up in a line (and punishing those who cut in line) and meal etiquette (never take the last helping) are a kind of passive commoning that most of us have internalized as “the way things are done.” They constitute an implicit mode of commoning for managing access to limited resources.

EACH OF THE COMMONS described above arose spontaneously, without the direction or oversight of centralized institutions or government. Each is committed to a larger collective purpose while also providing personal benefits for individuals. None is driven by a quest for money or personal fortune, at least not directly. In most commons, in fact, the market is a rather peripheral presence. Yet even without the direct involvement of markets or the state, serious production and governance occur.

The beauty of the commons as a “rediscovered” paradigm is both its generality and its particularity. It embodies certain broad principles — such as democratic participation, transparency, fairness and access for personal use — but it also manifests itself in highly idiosyncratic ways. For these reasons, I like to compare the commons to DNA. Scientists will tell you that DNA is ingeniously under-specified precisely so that the code of life can adapt to local circumstances. DNA is not fixed and deterministic. It is partial and adaptable. It grows and changes. A commons is like a living organism in that it co-evolves with its environment and context. It adapts to local contingencies. A forest commons in Vermont is likely to be quite different from one in Nepal or Germany, because the local ecosystems, tree types, economies, cultural histories and much else vary. And yet commons in each of these places are nonetheless commons: stable regimes for managing shared resources in fair ways for the benefit of participating commoners. The “diversity within unity” principle that commons embody is what makes the commons paradigm so versatile and powerful — and so confusing to conventional economists and policymakers.

What’s critical in creating any commons, as mentioned earlier, is that a community decides that it wants to engage in the social practices of managing a resource for everyone’s benefit. This is sometimes known as commoning. The great historian of the commons Peter Linebaugh has noted that “there is no commons without commoning.” It’s an important point to remember because it underscores that the commons is not only about shared resources; it’s mostly about the social practices and values that we devise to manage them.

Commoning acts as a kind of moral, social and political gyroscope. It provides stability and focus. When people come together, share the same experiences and practices and accumulate a body of practical knowledge and traditions, a set of productive social circuits emerges. They create enduring patterns of social energy that can accomplish serious work. They provide ongoing benefit to the community. In this sense, a commons resembles a magnetic field of social and moral energy. The force field may be invisible to the untrained eye, and its effects may even seem a little bit magical. But it’s time to face the facts: the commons constitutes a versatile system for organizing reliable flows of productive, creative social energy.

2

THE TYRANNY OF THE “TRAGEDY” MYTH

“PICTURE A PASTURE OPEN TO ALL.”

For at least a generation, the very idea of the commons has been marginalized and dismissed as a misguided way to manage resources: the so-called tragedy of the commons. In a short but influential essay published in Science in 1968, ecologist Garrett Hardin gave the story a fresh formulation and a memorable tagline.

“The tragedy of the commons develops in this way,” wrote Hardin, proposing to his readers that they envision an open pasture:

It is to be expected that each herdsman will try to keep as many cattle as possible in the commons. Such an arrangement may work reasonably satisfactorily for centuries because tribal wars, poaching and disease keep the numbers of both man and beast well below the carrying capacity of the land. Finally, however, comes the day of reckoning, that is, the day when the long-desired goal of social stability becomes a reality. At this point, the inherent logic of the commons remorselessly generates tragedy. As a rational being, each herdsman seeks to maximize his gain. Explicitly or implicitly, more or less consciously, he asks, “What is the utility to me of adding one more animal to my herd?”

The rational herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another. . . . But this is the conclusion reached by each and every rational herdsman sharing a commons. Therein is the tragedy. Each man is locked into a system that compels him to increase his herd without limit — in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.

The tragedy of the commons is one of those basic concepts that is drilled into the minds of every undergraduate, at least in economics courses. The idea is considered a basic principle of economics — a cautionary lesson about the impossibility of collective action. Once the class has been escorted through a ritual shudder, the professor whisks them along to the main attraction, the virtues of private property and free markets. Here, finally, economists reveal, we may surmount the dismal tragedy of a commons. The catechism is hammered home: individual freedom to own and trade private property in open markets is the only way to produce enduring personal satisfaction and social prosperity.

Hardin explains the logic this way: we can overcome the tragedy of the commons through a system of “mutual coercion, mutually agreed upon by the majority of the people affected.” For him, the best approach is “the institution of private property coupled with legal inheritance.” He concedes that this is not a perfectly just alternative, but he asserts that Darwinian natural selection is ultimately the best available option, saying, “those who are biologically more fit to be the custodians of property and power should legally inherit more.” We put up with this imperfect legal order, he adds, “because we are not convinced, at the moment, that anyone has invented a better system. The alternative of the commons is too horrifying to contemplate. Injustice is preferable to total ruin.”

Such musings by a libertarian-minded scientist have been catnip to conservative ideologues and economists (who are so often one and the same). They see Hardin’s essay as a gospel parable that affirms some core principles of neoliberal economic ideology. It affirms the importance of “free markets” and justifies the property rights of the wealthy. It bolsters a commitment to individual rights and private property as the cornerstone of economic thought and policy. People will supposedly have the motivation to take responsibility for resources if they are guaranteed private ownership and access to free markets. Tragic outcomes—“total ruin” — can thereby be avoided. The failure of the commons, in this telling, is conflated with government itself, if only to suggest that one of the few recognized vehicles for advancing collective interests, government, will also succumb to the “tragedy” paradigm. (That is the gist of Public Choice theory, which applies standard economic logic to problems in political science.)

Over the past several decades, the tragedy of the commons has taken root as an economic truism. The Hardin essay has become a staple of undergraduate education in the US, taught not just in economics courses but in political science, sociology and other fields. It is no wonder that so many people consider the commons with such glib condescension. The commons = chaos, ruin and failure.

There is just one significant flaw in the tragedy parable. It does not accurately describe a commons. Hardin’s fictional scenario sets forth a system that has no boundaries around the pasture, no rules for managing it, no punishments for over-use and no distinct community of users. But that is not a commons. It is an open-access regime, or a free-for-all. A commons has boundaries, rules, social norms and sanctions against free riders. A commons requires that there be a community willing to act as a conscientious steward of a resource. Hardin was confusing a commons with “no-man’s-land” — and in the process, he smeared the commons as a failed paradigm for managing resources.

To be fair, Hardin was following a long line of polemicists who projected their unexamined commitments to market individualism onto the world. As we will see later, the theories of philosopher John Locke have been widely used to justify treating the New World as terra nullius — open, unowned land — even though it was populated by millions of Native Americans who managed their natural resources as beloved commons with unwritten but highly sophisticated rules.

Hardin’s essay was inspired by his reading of an 1832 talk by William Forster Lloyd, an English lecturer who, like Hardin, was worried about overpopulation in a period of intense enclosures of land. Lloyd’s talk is notable because it rehearses the same line of argument and makes the same fanciful error — that people are incapable of negotiating a solution to the “tragedy.” Instead of a shared pasture, Lloyd’s metaphor was a joint pool of money that could be accessed by every contributor. Lloyd asserted that each individual would quickly deplete more than his share of the pool while a private purse of money would be frugally managed.

I mention Lloyd’s essay to illustrate how ridiculous yet persistent the misconceptions about the “tragedy” dynamic truly are. Commons scholar Lewis Hyde dryly notes, “Just as Hardin proposes a herdsman whose reason is unable to encompass the common good, so Lloyd supposes persons who have no way to speak with each other or make joint decisions. Both writers inject laissez-faire individualism into an old agrarian village and then gravely announce that the commons is dead. From the point of view of such a village, Lloyd’s assumptions are as crazy as asking us to ‘suppose a man to have a purse to which his left and right hand may freely resort, each unaware of the other’.”

This absurdity, unfortunately, is the basis for a large literature of “prisoner’s dilemma” experiments that purport to show how “rational individuals” behave when confronted with “social dilemmas,” such as how to allocate a limited resource. Should the “prisoner” cooperate with other potential claimants and share the limited rewards? Or should he or she defect by grabbing as much for himself as possible?

Needless to say, the complications are endless. But the basic premise of such social science experiments is rigged at the outset. Certain assumptions about the selfishness, rational calculation of individuals and lack of context (test subjects have no shared social history or culture) are embedded into the very design of the “game.” Test subjects are not allowed to communicate with each other, or develop bonds of trust and shared knowledge. They are given only limited time and opportunity to learn to cooperate. They are isolated in a lab setting for a single experiment, and have no shared history or future together. Aghast at the pretzel logic of economic researchers, Lewis Hyde puckishly suggested that the “tragedy” thesis be called, instead, “The Tragedy of Unmanaged, Laissez-Faire, Common-Pool Resources with Easy Access for Noncommunicating, Self-Interested Individuals.”

The dirty little secret of many prisoner’s dilemma experiments is that they subtly presuppose a market culture of “rational” individuals. Most give little consideration to the real-life ways in which people come to cooperate and share in managing resources. That is changing now that more game theory experiments are incorporating the ideas of behavioral economics, complexity theory and evolutionary sciences into their design.

Yet the fact remains that a great deal of economic theory and policy presume a rather crude, archaic model of human being. Despite its obvious unreality, Homo economicus, the fictional abstract individual who actively maximizes his personal “utility function” through rational calculation, continues to hold sway as the idealized model of human agency in the cultural entity we call “the economy.” Two introductory economics textbooks widely used in the US, by Samuelson and Nordhaus (2004) and Stiglitz and Walsh (2006), consider cooperative behaviors to be so inconsequential that they do not even mention the commons. If economists show any inclination to discuss the commons, you can be sure that the word “tragedy” will be lurking very nearby.

Paradoxically enough, the heedless quest for selfish gain — “rationally” pursued, of course, yet indifferent toward the collective good — is a better description of the conventional market economy than a commons. In the run-up to the 2008 financial crisis, such a mindset propelled the wizards of Wall Street to maximize private gains without regard for the systemic risks or local impacts. The real tragedy precipitated by “rational” individualism is not the tragedy of the commons, but the tragedy of the market.

Happily, contemporary scholarship has done much to rescue the commons from the memory hole to which it has been consigned by mainstream economics. The late American political scientist Elinor (“Lin”) Ostrom of Indiana University deserves special credit for her role in expanding the frame of analysis of economic activity. In the 1970s, the economics profession plunged into a kind of religious fundamentalism. It celebrated highly abstract, quantitative models of the economy based on rational individualism, private property rights and free markets. A child of the Depression, Ostrom had always been interested in cooperative institutions working outside of markets. As a young political scientist in the 1960s, she began to question some of the core assumptions of economics, especially the idea that people are unable to cooperate in stable, sustainable ways. Sometimes working with political scientist Vincent Ostrom, her husband, she initiated a new kind of cross-disciplinary study of institutional systems that manage “common-pool resources,” or CPRs.

CPRs are collective resources over which no one has private property rights or exclusive control, such as fisheries, grazing lands and groundwater. All of these resources are highly vulnerable to over-exploitation because it is difficult to stop people from using them. We might call it the “tragedy of open access.” (Hardin himself later acknowledged that he should have entitled his essay “The Tragedy of an Unmanaged Commons” — an oxymoron, but never mind.)

What distinguished Ostrom’s scholarship from that of so many academic economists was her painstaking empirical field-work. She visited communal landholders in Ethiopia, rubber tappers in the Amazon and fishers in the Philippines. She investigated how they negotiated cooperative schemes, and how they blended their social systems with local ecosystems. As economist Nancy Folbre of the University of Massachusetts, Amherst, explained, “She would go and actually talk to Indonesian fishermen or Maine lobstermen, and ask, ‘How did you come to establish this limit on the fish catch? How did you deal with the fact that people might try to get around it?’”

From such empirical findings, Ostrom tried to figure out what makes for a successful commons. How does a community overcome its collective-action problem? The recurring challenge facing a group of principals in an interdependent situation, she wrote, is figuring out how to “organize and govern themselves to obtain continuing joint benefits when all face temptations to free-ride, shirk, or otherwise act opportunistically. Parallel questions have to do with the combinations of variables that will (1) increase the initial likelihood of self-organization, (2) enhance the capabilities of individuals to continue self-organized efforts over time, or (3) exceed the capacity of self-organization to solve CPR [common-pool resource] problems without eternal assistance of some form.”

Ostrom’s answer was Governing the Commons, a landmark 1990 book that set forth some of the basic “design principles” of effective, durable commons. These principles have been adapted and elaborated by later scholars, but her analysis remains the default framework for evaluating natural resource commons. The focus of Ostrom’s work, and of the legions of academics who now study commons, has been how communities of resource users develop social norms — and sometimes formal legal rules — that enable them to use finite resources sustainably over the long term. Standard economics, after all, declares that we are selfish individuals whose wants are unlimited. The idea that we can depend on people’s altruism and cooperation, economists object, is naive and unrealistic. The idea that commons can set and enforce limits on usage also seems improbable because it rejects the idea of humans having unbounded appetites.

Ostrom nonetheless showed how, in hundreds of instances, commoners do in fact meet their needs and interests in collective, cooperative ways. The villagers of Törbel, Switzerland, have managed their high alpine forests, meadows and irrigation waters since 1224. Spaniards have shared irrigation waters through huerta social institutions for centuries while, more recently, diverse water authorities in Los Angeles learned how to coordinate their management of scarce groundwater supplies. Many commons have flourished for hundreds of years, even in periods of drought or crisis. Their success can be traced to a community’s ability to develop its own flexible, evolving rules for stewardship, oversight of access and usage, and effective punishments for rule-breakers.

Ostrom found that commons must have clearly defined boundaries so that commoners can know who has authorized rights to use a resource. Outsiders who do not contribute to the commons obviously have no rights to access or use the common-pool resource. She discovered that the rules for appropriating a resource must take account of local conditions and must include limits on what can be taken and how. For example, wild berries can only be harvested during a given period of time, or wood from the forest can only be taken from the ground and must be used for household use only, not sold at markets.

Commoners must be able to create or influence the rules that govern a commons, Ostrom noted. “If external governmental officials presume that only they have the authority to set the rules,” she discovered, “then it will be very difficult for local appropriators to sustain a rule-governed CPR over the long run.” Commoners must be willing to monitor how their resources are used (or abused) and must devise a system of sanctions to punish anyone who violates the rules, preferably through a gradation of increasingly serious sanctions. When disputes arise, commoners must have easy access to conflict-resolution mechanisms.

Finally, Ostrom declared that commons that are part of a larger system of governance must be “organized in multiple layers of nested enterprises.” She called this “polycentric governance,” meaning that the authority to appropriate a resource, monitor and enforce its use, resolve conflicts and perform other governance activities must be shared across different levels — from local to regional to national to international.

It must be emphasized that Ostrom did not regard her eight design principles as a strict blueprint for successful commons, but rather as general guidelines. It is also important to note that she focused primarily on small-scale natural resource commons. She did, in the latter stages of her career, explore the problems of large-scale regional or global commons and digital commons (which can scale to large sizes with great ease). But these were secondary concerns during most of her working life.

Here is another way of looking at factors that affect how a commons should be structured and managed:

       The character of the resource affects how it must be managed. Finite, depletable resources such as mines have a different character than self-replenishing resources such as fisheries or forests. Commons that are “limitless” such as knowledge traditions and Internet resources (which are reproducible at virtually no cost) don’t have to worry about free riders so much as vandals and disrupters.

       The geographic location and scale of a resource will dictate a particular type of management. A village well requires different management rules than a regional river or a global resource like the oceans. Smaller-scale commons are easier to manage than large-scale or planetary common-pool resources such as the atmosphere.

       The experience and participation of commoners matters. Indigenous communities that have centuries-old cultural traditions and practices will know far more about their resource than outsiders. Long-time members of free software networks will be more expert at designing programs and fixing bugs than newcomers.

       Historical, cultural and natural conditions can affect the workings of a commons. A nation that has a robust civic culture is more likely to have healthy commons institutions than a nation where civil society is barely functional and distrust is rampant.

       Reliable institutions that are transparent and accessible to the commoners matter. The most responsive institutions tend to be informal self-organized commons of smaller scales, but one can imagine state-sanctioned commons institutions acting as conscientious trustees for commoners.

Ostrom’s impressive body of work earned her the Nobel Prize in Economics in 2009 (along with Oliver Williamson). I like to think that the Nobel Prize committee was spooked by the 2008 financial crisis and wished to shine a light on the profusion of alternatives to markets — nonmarket forms of provisioning and resource management that are nonetheless productive, stable and sustainable.

Besides providing a powerful analytical platform for studying commons more rigorously, Ostrom’s most lasting accomplishment may be her role in building a global network of commons scholars. Hundreds of academics from around the world have produced a vast social sciences literature, mostly about natural resource commons in Asia, Latin America and Africa. Much of the seminal academic thinking about the commons was incubated, debated or refined at the Workshop in Political Theory and Policy Analysis at Indiana University, which Ostrom cofounded with her husband in 1973. Elinor Ostrom also founded the Digital Library of the Commons and the International Association for the Study of Common-Pool Resources (“Commons” was later substituted for “Common-Pool Resources” in the organization’s name), an academic network of hundreds of scholars and practitioners.

It is now easy to see that Ostrom’s great strength in studying economic activity was her distance from the economics profession. As an outsider to the guild, she could more readily see that free-market theories fail to explain many things of economic importance, such as our keen interest in working with others and assuring fairness within a group. As a woman in a male-dominated field (in the 1960s and 1970s, when sexism ran rampant in academia), Ostrom was also more attentive to the relational aspects of economic activity — the ways in which people interact and negotiate with each other to forge rules and social understandings. And so, while operating within the premises of neoclassical economics, Ostrom helped enlarge the scope of analysis to include many humanistic and social dynamics that the numbers-oriented mandarins of the field scorned.

Interestingly, her prominence in the field came mostly after she was awarded the Nobel Prize in 2009. In the previous decades, the study of CPRs and common property was decidedly outside the perimeter of interest of “serious” economists. Indeed, some prominent economists had no idea who she was when she was awarded the Nobel Prize. To outsiders and market-oriented economists, the commons was perhaps of little interest because it seems to focus on “subsistence,” which they interpret as bare survival. But subsistence is not necessarily just about survival; it is about providing for one’s household needs. The goal is not to maximize market gains and amass money, but to make sure that one’s family has enough. The commons, properly understood, is about the practice and ethic of sufficiency.

I had the good fortune to meet Lin Ostrom a few times before her death in June 2012. What I most remember is how remarkably gracious, open and down-to-earth she was. This observation is not just a personal sidelight; I think it was what made her such a fertile thinker: she was open-minded and willing to engage with people and phenomena on their own terms, unencumbered by the deep prejudices of economic theory. Yet Ostrom nonetheless operated within the standard economic framework and its assumptions about “rational actors” and “rational design” in the construction of commons. She dealt only glancingly with macro-economic dynamics and even less with politics and power. Ostrom also tended to approach commons in a functional, behavioralist way, and had less interest in the intersubjective, psychological dynamics that might animate commons. Still, the “Bloomington School” of commons scholarship deserves enormous credit for rescuing the commons from the tyranny of the “tragedy” myth.

What is fascinating is the parallel development, outside of academia, of an eclectic, transnational corps of activists and project leaders who have embraced the commons as an organizing principle for their campaigns for social change. This, arguably, is what is making the commons a significant force in politics, economics and culture today. New movements of people worldwide are beginning to see how the commons paradigm describes their lives and their relationships to other people and resources. Software programmers, urban gardeners, indigenous peoples, academic researchers, permaculturists, Indian textile makers, Istanbul residents defending Gezi Park, the users of public libraries and parks, Slow Food activists: the affinity of these groups for the commons is not necessarily intellectual or scientific; it’s personal and passionate. For many of these commoners, the commons is not a “management system” or “governance regime”; it’s a cultural identity, a personal livelihood and a way of life. It’s a way to revive democratic practice. It’s a way to live a more satisfied life.

We will meet more of these commoners in the coming chapters. For now, suffice it to say that most commoners are trying to carve out protected, nonmarket spaces in a world that is increasingly dominated by private property and markets on a global scale. While commoners have many different self-defined goals and approaches, a great many of them aspire to build a different order of provisioning that will either build up the commons as an independent sector or blend commons and markets together in more humane, accountable ways. Some commoners focus mostly on their particular commons, whether it is a cooperative bank, a community forest or an online wiki. Others concentrate on how law and public policy might enable commons to form and maintain themselves, and how the state might play a helpful or benign role. Still others see the commons as an attractive vehicle for advancing an anti-capitalist economic and social analysis, and challenging the neoliberal state.

In short, interest in the commons, an irregular topic whose study was once mostly confined to academia, has exploded into all sorts of different arenas. Or more accurately, the language and scholarship to describe what has always existed in unselfconscious, unnamed ways is becoming more culturally visible. The commons is becoming a flourishing transnational ecosystem of activism, projects and theorizing. As the commons narrative engages various communities of practice, it is triggering an exciting cross-fertilization of ideas and partnerships as well as new understandings of commoning itself.

I like to think of this as a vernacular movement more than a political movement or ideological perspective. The term “vernacular” was given a special meaning by iconoclastic social critic Ivan Illich in his 1981 book Shadow Work. As a critic of the dehumanizing tendencies of institutions, Illich saw vernacular spaces as informal cultural zones where people naturally come to their own moral judgments and act out of their own sovereign humanity. The vernacular flourishes in the realm of householding and subsistence, and of family life and child rearing. It lives in the shared spaces of a community in which people assert their collective moral values and political interests, over and above those of the state, the corporation and other institutional powers. As one of Illich’s students, Trent Schroyer, put it, the vernacular realm evokes a “sensibility and rootedness . . . in which local life has been conducted throughout most of history and even today in a significant proportion of subsistence- and communitarian-oriented communities.” The vernacular consists of “places and spaces where people are struggling to achieve regeneration and social restoration against the forces of economic globalization.”

There is a certain timelessness and mystery associated with the vernacular, and as you have probably guessed, it has a lot to do with the commons. The commons is a fragile social institution and sensibility that naturally arises from vernacular culture, as if driven by a life force. It invariably tries to assert and maintain itself in the face of powerful institutions that have other priorities and interests. Sometimes commoners succeed in negotiating a rapprochement with those institutions, and carve out a protected zone for commoning. Urban gardens in New York City had to struggle to maintain themselves in the face of development pressures, for example. Coastal fishery commons must often struggle against large-scale industrial trawlers who swoop through their waters extracting fish for global markets rather than local consumption. Digital commoners must contend with copyright laws and corporate demagoguery that equate sharing with criminal activity (“piracy”).

History has shown that the forces of market enclosure are cruel and relentless in deconstructing and destroying commons; they don’t like the competition. A successful commons is a “bad example” because it bears witness to better practical alternatives. Sharing is also objectionable because it is an affront to the ideology of private property rights (with the exception of tech companies like Google and Facebook, whose business model relies upon monetizing social sharing). For their part, governments and bureaucracies are often wary of the commons as an independent, potentially threatening power base, preferring the certainties and rewards of market-based allies. Governments generally prefer to manage resources through strict standardized systems of control. To them, commoning appears to be altogether too informal, irregular and unreliable — even if the actual successes of commons refute that prejudice.

Any basic understanding of the commons must inevitably take account of the dynamics and meaning of enclosure. I turn now to that topic.

3

ENCLOSURES OF NATURE

WHAT HAPPENS WHEN markets become so powerful that they disrupt natural ecosystems, reorder how people conduct their lives and claim ownership of life-forms? It is sometimes difficult to step outside of our culture to take stock of the actual power and far-reaching effects of markets. But once you learn to identify the commons and understand its dynamics, it becomes quite clear that the privatization and commodification of our shared wealth is one of the great unacknowledged scandals of our time. Its pernicious effects are everywhere.

This process is often called the enclosure of the commons. It’s a process by which corporations pluck valuable resources from their natural contexts, often with government support and sanction, and declare that they be valued through market prices. The point is to convert resources that are shared and used by many to ones that are privately owned and controlled, and treat them as tradeable commodities.

To talk about enclosure is to open up a conversation that standard economics rarely entertains — the dispossession of commoners as market forces seize control of common resources, often with the active collusion of government. The familiar debate of “privatization versus government ownership” does not really do justice to this process because government ownership, the supposed antidote to privatization, is not really a solution. In many instances, the state is only too eager to conspire with industries to seize control of common resources for “private” (i.e., corporate) exploitation. Regulation is too often a charade that does more to legalize than eradicate market abuses.

To talk about enclosure, then, is a way to point to the commons and reframe the discussion. The language of enclosure makes visible the antisocial, anti-environmental effects of “free markets” and validates commoning as an appropriate, often-effective alternative.

A few years ago, I learned of a contemporary enclosure that eerily replicated the medieval pattern of land enclosure. For more than a century, the village of Camberwell, in the fertile Hunter Valley region of New South Wales, Australia, had used part of an open flood plain around Glennies Creek as a commons. It was a place for residents to keep their horses and dairy cows, and to let their children fish, swim and ride horses. In April 2005, according to the Sydney Morning Herald, “a pair of officers from the Department of Lands arrived, called together members of the [Camberwell] Common Trust, and told them the Crown land would be immediately resumed and turned over to the Ashton mine that looms over the Upper Hunter village in the form of a hollowed-out hill on the other side of the creek.”

The action was just another instance of government using its authority to seize common lands for corporate purposes. The secretary of the Camberwell Common Trust told a reporter, “When we go to community meetings with the mines they are always talking about what they will do ‘when’ they get approval. They never say ‘if’ they get approval.” Both mining companies and government make out well from enclosures. The mining companies get cheap access to minerals and lax environmental oversight. The Australian government earned about $1.5 billion in royalties and fees at the time of the Camberwell enclosure.

Commoners are generally not so lucky. In Camberwell, blasts from the mining hollowed out the hills around the village. Parts of the commons cracked, according to the Morning Herald. Nearly two-thirds of the village population gave up fighting the mining companies and moved elsewhere.

The Camberwell experience is a classic example of state-assisted market enclosure. In the US, the government allows mining interests to extract mineral wealth on public lands under the Mining Act of 1872. Unchanged for more than 140 years, this law lets mining companies extract gold, silver and iron ore for five dollars an acre, period. It’s been estimated that Americans have lost more than $245 billion worth of revenues over the years from this law — while ruining beautiful mountains and rivers with mine tailings and other wastes.

Similar stories from around the world can be told about timber companies raping public forests, oil companies drilling in pristine wilderness areas, industrial trawlers decimating coastal fisheries and transnational water bottlers sucking groundwater dry.

In Latin America, transnational corporations are working with neoliberal governments to impose aggressive “neo-extractivist” policies. As Argentinian professor Maristella Svampa explains, the idea is to build mega-projects that can efficiently extract and export the continent’s minerals, metals, hydrocarbons, maize, soya and other raw commodities to industrial nations. Cast as the only realistic path toward progress and “development,” dozens of dams, mines, highways and other neo-extractivist projects are destroying entire ecosystems, communities and indigenous cultures. Among the more notorious enclosures: the Conga mega-mining project in Peru; the Belo Monte hydroelectric dam in Brazil; and the road construction through the TIPNIS indigenous territory in Bolivia.

Enclosures are a special form of theft that attract little notice, in part because governments often play a key role in legitimizing them. But in all cases, resources that belong to all of us, or to distinct communities, are being transformed into corporate-owned properties and free waste dumps. Land, water, human tissue, public spaces, the atmosphere — all are raw feedstock for market use. Whatever wastes remain after these resources are monetized are dumped back into the commons, imposing further risks and costs on governments and citizens.

While enclosure tends to be cloaked in the language of progress, efficiency and development — the cover story — it is in fact a brutal act of appropriation, a raw power grab that often requires violent coercion. The appetite of the great corporate powers that rely upon enclosures seems to be limitless as they seize minerals from the bottom of the ocean, tap the genetic secrets of exotic flora in the global South and copyright brief snippets of musical notes, enabling them to accuse sharers of “piracy.”

It is important to note that enclosures are not just appropriations of resources. They are also attacks on communities and their practices of commoning. Their primary goal may be the seizure of resources, but they also seek to impose a “regime change” on people. Enclosures convert a system of collective management and social mutuality into a market order that privileges private ownership, prices, market relationships and consumerism. The goal is to treat people as individuals and consumers, not as communities with shared, long-term, nonmarket interests.

The ultimate result of so many enclosures is a desperate dependency on business outsiders whose only loyalty is to the global marketplace. Users of Microsoft products must constantly buy the next software upgrade to keep their computers running properly. Farmers who rely upon genetically modified crops must buy new seeds every year and abide by contractual restrictions. Defenders of traditional ways of life are thrust into struggles with those who want to get rich and pursue the Western ideal of “development.” “The more we depend on money and markets to satisfy our needs and follow our desire,” writes commons scholar Massimo De Angelis, “the more we are exposed to a vicious circle of dependency that pits livelihoods against each other.”

Not surprisingly, enclosures tend to interfere with the ability of people to self-organize and control their own governance, meet their own needs and protect their culture and way of life. A town that becomes beholden to an absentee investor or corporation quickly loses its civic sovereignty and becomes a “company town.”

Enclosures also undermine traditions and identities that are intertwined with a beloved landscape, historic building or cultural work. When treasures — the designs of Australian Aborigines, the special plants cultivated by Madagascans — are shorn from their historic or natural context and reduced to a price, it is an assault on the commoners who had acted as their conscientious stewards and instilled meaning and purpose in them. Through enclosure, treasures are stripped of the qualities that make them locally distinctive and emotionally significant. They become, for better or worse, little more than inert commodities.

A Brief History of the English Enclosure Movement

The term “enclosure” is generally associated with the English enclosure movement, which occurred at various times in medieval history and through the nineteenth century. To put it plainly, the king, aristocracy and/or landed gentry stole the pastures, forests, wild game and water used by commoners, and declared them private property. Sometimes the enclosers seized lands with the formal sanction of Parliament, and sometimes they just took them by force. To keep commoners out, it was customary to evict them from the land and erect fences or hedges. Sheriffs and gangs of thugs made sure that no commoner would poach game from the king’s land.

Enclosure was irresistible to the 1 percent of medieval England because it was an easy way to grab more wealth and power with the full sanction of the law. It could help struggling barons and upwardly mobile gentry consolidate their political power and increase their holdings of land, water and game. An anonymous protest poem from the eighteenth century put it well:

The law locks up the man or woman

Who steals the goose from off the common

But leaves the greater villain loose

Who steals the common from off the goose.

The law demands that we atone

When we take things we do not own

But leaves the lords and ladies fine

Who take things that are yours and mine.

The poor and wretched don’t escape

If they conspire the law to break;

This must be so but they endure

Those who conspire to make the law.

The law locks up the man or woman

Who steals the goose from off the common

And geese will still a common lack

Till they go and steal it back.

As enclosures swept the villages of England, commoners suffered serious hardships. They depended upon the forest for their firewood and roof thatches, and on acorns to feed their pigs. They relied on shared fields to grow vegetables, and on open meadows for wild fruits and berries. An entire rural economy was based upon access to the commons. Barred from using their commons, villagers migrated to cities, where the emerging industrial revolution turned them into wage slaves, if they were lucky, and beggars and paupers if they weren’t. Charles Dickens drew upon the social disruptions and injustices of enclosures in writing Oliver Twist, Great Expectations and his other novels about London’s troubled underclass.

One important goal of the English enclosures was to transform commoners with collective interests into individual consumers and employees. Which is to say: creatures of the marketplace. The satanic mills of the Industrial Revolution needed obedient and desperate wage slaves. One of the lesser-noticed aspects of enclosures was the separation of production and governance. In a commons, both were part of the same process, and all commoners could participate in both. After enclosures, markets took charge of production and the state took charge of governance. The modern liberal state was born. And while the new order brought about vast improvements in material production, those gains came at a terrible cost: dissolution of communities, deep economic inequality, an erosion of self-governance and a loss of social solidarity and identity. Governance became a matter of government, the province of professional politicians, lawyers, bureaucrats and monied special interest lobbies. Democratic participation became mostly a matter of voting, a right limited to men (and at first, property owners). Enclosure also isolated people from direct encounters with the natural world and marginalized social and spiritual life.

During the course of a hundred and fifty years, from the late 1600s to the mid-1800s, about one-seventh of all English common land was carved up and privatized. As a result, deep inequalities took root in society and urban poverty soared. The foundations of the modern market order were being laid, and the masters of this new world had no need for the commons. The hallmarks of the new order would be individualism, private property and “free markets.”

Karl Polanyi was an economic historian who studied this unique transition in human history — the end of the commons and the rise of markets and enclosures. In his underappreciated 1944 classic, The Great Transformation, Polanyi noted that for millennia, people had been bound together through community, religion, kinship and various other social or moral ties. All economic systems had been based on systems of reciprocity, redistribution or householding, and people were induced to produce things by way of “custom and law, magic and religion.”

Then, as enclosures proceeded in the seventeenth through nineteenth centuries, production and profit became the central organizing principles for society. Instead of focusing on household use within a stable social context, production became reoriented toward private gain and accumulation. This required that numerous resources — especially land, labor and money — be redefined as commodities. Polanyi called these “fictional commodities” because human life and natural ecosystems cannot really be broken into fungible, substitutable units. But markets require that nature’s gifts, labor and money be treated as commodities if they are to be assigned prices and made suitable for trade and speculation.

These commodity fictions quickly expanded to other realms, making virtually everything subject to purchase and sale. Food, water, fuel, firewood and other necessities of life — once available as a matter of right through the commons — could now only be acquired through the market, at a price.

Polanyi characterized the history of enclosure as “a revolution of the rich against the poor.” “The lords and nobles were upsetting the social order,” he wrote, “breaking down the ancient laws and customs, sometimes by means of violence, and often by pressure and intimidation.” As the market economy gained the upper hand, it imposed its commodity logic on everything — nature, labor, social life — and gave everything a price.

Karl Marx, of course, had a great deal to say about the dynamics of capital accumulation and how they shaped the workplace, colonized social life and exploited public resources. Much of his political and economic critique is about the fierce private enclosures of the commons. However, Marx had relatively little to say about the commons itself as a locus of resistance or as a generative source of production and social reproduction. This was surely because the most significant development of his time was the sheer power of capitalist modernization. He saw modern workers’ collectives as the most promising vehicle for creating new forms of commons.

The Massive International Land Grab

Many people believe that enclosures are a relic of the past — something that happened in medieval times, but not now. Not so. Vast portions of Africa, Asia and Latin America are currently reeling from a fierce international land grab. Investors and national governments are snapping up millions of acres of land that traditional peoples have used for generations. These commoners rarely have formal property deeds; as lawyers might put it, they have only “customary usage rights.” The enforceable property rights belong to the government, which in theory acts as a trustee for the people. But in reality, most autocratic and troubled states find it quite profitable to ignore their public trust duties and sell off vast swatches of “unowned” lands to foreigners. By brokering deals and legalizing title to the land, governments can reap new tax revenues. Well-connected officials can quietly pocket handsome bribes. In theory, “development” and prosperity will follow.

In practice, not so much. Some investors use the land to produce biofuels or commercial crops that are exported to world markets. Others are speculators who leave the land idle, hoping to cash in as land prices rise. Saudi Arabia has spent a billion dollars to buy seven hundred thousand hectares in Africa. India is assembling investment pools to buy up farmlands. South Korea and China are also active players.

The scale of enclosure of customary lands is massive — and so is the displacement of commoners. An estimated 90 percent of the people in sub-Saharan Africa, or some five hundred million people, do not have statutory title to their lands and are at risk of eviction. Citizens of the Democratic Republic of the Congo, Northern Sudan, Ethiopia and Madagascar are especially vulnerable. Worldwide, some two billion people have only customary usage rights to their lands — some 8.54 billion hectares (or 21.1 billion acres). Once their lands are seized, commoners can no longer grow and harvest their own food, draw water or hunt wild game. Enclosures are shattering their communities and cultures.

By the light of free-market economics, turning land into private property and trading it in the market will enhance its productivity. This process is said to encourage owners to produce more food and develop the land so that it will be more valuable. Collectively used lands without property titles, by contrast, have historically been called “wastelands.” That’s because, in the eyes of the law, no one owns the land or takes care of it.

But look behind the curtain of free-market fables and you see thousands of stable, sustainable commons that provide basic subsistence to millions of people. Not surprisingly, the land grabs are producing the familiar pathologies associated with enclosure: ecological abuses, the decimation of community, hunger, inequality and migrations to cities in search of jobs and food. Evicted commoners find themselves displaced, dispossessed and thrust into a world of flashy modern consumerism and shantytown poverty: an ugly replay of English commoners at the dawn of the Industrial Revolution.

“In light of the fact that most allocations to investors are in the form of renewable medium-term leases of up to 99 years,” writes Liz Alden Wily, a specialist on land tenure rights, “it may be expected that loss of common properties will remove these lands from meaningful access, use and livelihood benefit for at least one generation and potentially up to four generations.”

This is a recipe for decades of famine, poverty and political turmoil. At one time, imperial nations asserted direct military control over people and resources in order to exploit them. The neocolonial process has become more refined. With the sanction of law, foreign investors and speculators simply negotiate deals with friendly, self-dealing governments that welcome the plunder of native lands. What could be more lucrative than the private sale of the public’s equity assets at bargain prices?

The Privatization of Water

Water is another resource that has been targeted for enclosure by many transnational corporations. Most people expect their drinking water to be a public service provided by governments or at least managed by communities. But many transnational companies see water as a valuable private commodity that can be a rich source of profits. This has prompted many companies and investors to buy up groundwater aquifers, extract large quantities of fresh water from public lands for minimal or no payments and privatize municipal water systems.

Sometimes water enclosures are achieved indirectly. Companies may choose to build expensive water purification, treatment or desalinization systems, for example, even though conservation and preventive regulation are cheaper and could yield more reliable results (but, alas, no return on investment to private investors). The fierce international land grab now underway is often just another name for “water grabbing.”

The opening salvo in an ongoing series of “water wars” began in 2000, when the World Bank, working in cooperation with an international consortium led by the transnational engineering and construction firm Bechtel, pressured Cochabamba, then the third largest city in Bolivia, to privatize its water system. The official policy rationale was to provide incentives to private companies to improve the water infrastructure and so improve people’s access to water. But such “market solutions” are more about boosting profits than providing access. After gaining control of Cochabamba’s water supplies, Bechtel raised prices by 50 percent or more and even prohibited the collection of rainwater from roofs. Water in Cochabamba was strictly regarded as private property under the control of Bechtel.

A grassroots protest movement arose overnight. Thousands of ordinary people took to the streets with the battle cry, “Water is life!” The Coordinadora for the Defense of Water and Life called on the government to cancel its forty-year contract with Bechtel and return the water to municipal control. The protests also called for the “social re-appropriation of wealth” — that is, sovereign control of the water system and its collective management by water users. Coming only months after the Seattle anti-globalization protests in 1999, the Cochabamba insurrection vividly confirmed that the globalization of commerce has more to do with stoking corporate profits than with meeting basic human and environmental needs fairly and sustainably.

Protesters ultimately prevailed in Cochabamba, forcing cancellation of the Bechtel contract and galvanizing new calls for self-determination and commons-based control throughout Latin America. More than ten years later, the Cochabamba protests are still remembered as one of the first major triumphs against the privatization of water. It’s a war that will not end any time soon. Billionaire T. Boone Pickens has spent more than a hundred million dollars acquiring groundwater aquifers in the Texas High Plains, which could make it very expensive for many communities there to survive as water becomes a private, proprietary product. Transnational water companies continue to appropriate groundwater supplies throughout the world in order to bottle it — even though public water systems can provide a thousand gallons of tap water for the same price as one bottle of branded water.

The Corporatization of Food

Sometimes enclosures involve things that a community only owns morally or inherits, such as the biodiversity of nature. These are common-pool resources, not actual commons (because the social systems to manage them remain aspirational, not actual). CPRs are particularly vulnerable to enclosure because there is no organized community to resist the seizure, so they are seen as “free for the taking.” Markets become the structural force for redesigning nature.

A good example is the enclosure of apples in the US. A century ago, Americans ate more than six and a half thousand distinct varieties of apples. People could choose from an exotic array of cultivars with names like Scollop Gillyflower, Red Winter Pearmain and Kansas Keeper. When it came to cooking and eating, everyone had their favorites, usually local. People used different varieties for making pies, cider and apple sauce.

All that has changed dramatically. As US food companies built national markets in the twentieth century, eclipsing local production and distribution, the natural diversity of apples has essentially disappeared. Some varieties were abandoned because their thin skins and susceptibility to bruising made them un-suited for shipping. Others were too small or served only a tiny niche of the market. Red Delicious probably prevailed in the marketplace because it was so big and shiny (thanks in part to wax coating).

The point is that the shrinkage of varieties of apples was engineered by a commercial agriculture system intent on building national and international markets. Driven by large-scale efficiencies and corporate consolidation, it had no interest in idiosyncratic or diverse fruits. And so a bland homogeneity of apples was deliberately engineered in order to boost sales. Today, writes farmer-journalist Verlyn Klinkenborg, “only 11 varieties make up 90 percent of all the apples sold in this country [the US], and Red Delicious alone counts for nearly half of that.”

Nature’s dazzling diversity of apples has been culled and diminished. Most of the remaining varieties are easy to grow and cheap to distribute and sell in large quantities. Only older people realize that apples used to be delightfully varied and locally grown — and tastier. The rest of us have been trained to accept our narrow range of choices as “the way things are.” A popular fruit has been made to conform to regimented, highly commodified markets.

Fortunately, the local food movement in its many aspects — Slow Food, community supported agriculture, organic farming, permaculture and beyond — is starting to resurrect many “heirloom” seed varieties that have fallen into disuse. These efforts are motivated not only by the interesting tastes and easier cultivation of locally adapted seeds, but by a realization that genetic biodiversity is an important form of ecological “insurance.” Even though there are more than a thousand banana varieties worldwide, for example, the fruit industry has cultivated the Cavendish cultivar for 99 percent of the export market. Thanks to such monoculture farming, the world’s supply of bananas may be decimated by a soil-borne fungus that attacks Cavendish bananas.

The fate of the apple and banana mirrors the fate of American food more generally. As Mark Kurlansky documented in his book The Food of a Younger Land, the diversity of cuisine in the US used to be far greater before the rise of the grocery superstore, the national highway system and the fast-food restaurant. Chain restaurants brought uniformity and low quality, displacing food that was seasonal, fresh, regional and traditional. When food was rooted in local cultures, it shaped people’s character, attitudes and identities. Before American food habits fell under the sway of national markets, Kurlansky writes, there were food traditions such as “the southern New England May breakfast, foot washings in Alabama, Coca-Cola parties in Georgia, the chitterling strut in North Carolina, cooking for the threshers in Nebraska, a Choctaw funeral, and a Puget Sound Indian salmon feast. It also had old traditional recipes such as Rhode Island jonny cakes, New York City oyster stew, Georgia possum and taters, Kentucky wilted lettuce, Virginia Brunswick stew, Louisiana tête du veau,” among dozens of others.

As the global reach of US corporations grew in the postwar period, so did the enclosure of countless food traditions around the world. As Western brands and fast-food chains have expanded from Bangkok to Bogota and from Mumbai to Moscow, modern heavily marketed foods have supplanted “backward” traditional cuisines. Everyday diets have become more homogenized — and less nutritious. No surprise that the diseases associated with Western diets — diabetes, obesity, heart disease — have also proliferated.

LAND, WATER, APPLES, LOCAL FOODS. These are only a few of the significant enclosures of nature perpetrated over the past several generations. The theft of natural wealth has been little noticed because it has been so incremental — and because it is generally portrayed as a sign of economic and technological progress.

The range of enclosures of nature is vast. They extend from the global (the atmosphere, the oceans, outer space) to the regional (groundwater aquifers, fisheries, forests) to the local (native foods, hometown traditions, independent businesses). Enclosures include living things (cell lines, genes, genetically engineered mammals) and infinitesimally small things (microorganisms, synthetic substitutes for nano-matter).

One of the most audacious new enclosures of nature involves the financialization of natural resources. Rather than treat land, water and local ecosystems as resources that should abide by the imperatives of nature, hedge funds and other investors are starting to develop clever financial instruments to “securitize” the revenues that can be generated by renewable natural systems, such as flows of water, harvestable timber and fish stocks.

Antonio Tricarico of the Italian group Re:Common reports that the financial industry is now trying to create a futures market and derivative financial instruments for water, similar to those that exist for oil. This would radically increase the pressure on governments at all levels to regard their water, forests and fisheries as financial assets that must be monetized and sold, or used as collateral for loans. By the lights of finance, natural resources that go unexploited are underleveraged assets; the presumption is that everything should produce revenue.

Needless to say, the financialization of nature would heighten pressures to disrupt and deplete many natural flows, intensifying stresses on the carrying capacities of natural systems. If water were to become a commodity traded in an integrated global marketplace, for example, it could devastate local ecosystems and make this vital resource unaffordable for many people.

Tricarico writes that the financialization of nature will only grow in coming years as the financial industry seeks to displace public finance and build its own large infrastructure and extractive projects in order to benefit private investors. The industry wants to develop financial markets that treat more aspects of food, land, electricity, metals, forests and other resources not just as commodities, but as financial assets suitable for global trade and speculation. Considering how little we understand about the macroeconomic and macrofinancial implications of such enclosures — not to mention the ecological disruptions that would ensue — these plans are a recipe for disaster.

I could easily cite dozens of additional types of enclosure. But let me confine the scope of our inquiry to providing a closer look at how enclosures work. I turn now to two classes of enclosures that don’t get that much attention: the private takeover of urban spaces and infrastructure (Chapter 4) and the many appropriations of knowledge and culture (Chapter 5). You can tell that enclosure has reached troubling extremes when businesses claim ownership of words, colors and smells!

4

ENCLOSURES OF PUBLIC SPACES AND INFRASTRUCTURE

THE CITY IS ONE of the most fiercely contested arenas for market enclosures. Public squares, parks, walkways, sports arenas and the very face and identity of a city are being taken over by a cozy alliance of corporations, politicians, developers and professional architects and planners. “Development” and “progress” are the watchwords — or perhaps more accurately, PR codewords — for the supremacy of corporate needs and market growth over all else.

In many big cities, corporate branding has taken over public spaces that used to be “no-sell” havens in our culture. One of the most notorious is the selling of naming rights to sports stadia. There is Coca-Cola Stadium in Xi’an, China; Land Rover Arena in Bologna, Italy; and Mr. Price King Park Stadium in Durban, South Africa. Beloved playing fields that used to have charming and cherished histories — Candlestick Park (San Francisco) and Mile High Stadium (Denver) — now bear icy corporate names that will never inspire lyrical sports lore. Sometimes arenas need to be renamed because the corporation goes bankrupt (3Com) or gets embroiled in a scandal (Enron).

The implications of selling naming rights or digitally imposing logos onto playing fields (an increasingly common practice) may seem trivial to some, but they are symptomatic of a more troubling trend: the “hollowing out” of our social identity. The shared experiences that over time give a city soul are seen as yet another commodity to be bought and sold. At a more subtle level, national franchises and branding have the same effect on how we experience our own culture; they quietly eliminate all that is distinctive, idiosyncratic and charming. The irregular textures of a specific place and its public life are flattened out to maximize commercial appeal.

Starbucks’ enclosure of the coffee shop experience in the US is revealing. Originally inspired by the lively cafe culture of Italy, Howard Schultz, the chairman of Starbucks, was distressed in 2007 to see how his company’s success in “branding the customer experience” had eroded the social charm and conviviality of its thirteen thousand coffee shops. In an internal corporate memo, “The Commoditization of the Starbucks Experience,” Schultz lamented how the company’s fierce expansion and efficiency measures had “lead to the watering-down of the Starbuck’s experience, and, what some might call the commoditization of our brand.” He cited how Starbuck’s new automatic espresso machines — an efficiency measure that allowed faster service for more customers — meant that customers could no longer watch baristas make coffee by hand. Schultz complained that this had “removed much of the romance and theater” of the Starbuck’s experience. Similarly, store clerks are “no longer scooping fresh coffee from the bins and grinding it fresh in front of the customer” because the coffee now came in flavor-locked packaging. Customers no longer experienced the tangy smell of coffee from the bins.

Schultz fretted: “Clearly we have had to streamline store design to gain efficiencies of scale and to make sure we had the ROI [return on investment] on sales to investment ratios that would satisfy the financial side of our business. However, one of the results has been stores that no longer have the soul of the past and reflect a chain of stores vs. the warm feeling of a neighborhood store. Some people even call our stores sterile, cookie cutter, no longer reflecting the passion our partners feel about our coffee. In fact, I am not sure people today even know we are roasting coffee. You certainly can’t get the message from being in our stores.”

Call it the pathos of enclosure: Schultz cannot quite acknowledge that his branding aspirations eliminate the slack pace and local oddities that made coffee shops so attractive in the first place. He cannot quite admit that branding is precisely about creating a monoculture — the commodification of experience: the exact opposite of what a commons provides.

The market colonization of public spaces — and our consciousness — has become so extreme that many gas pumps and hotel elevators are now equipped with video screens that force us to watch or listen to ads. As public schools and universities suffer from budget cutbacks, corporations often step up to “help” by buying advertising space on school buses, highway toll booths, even municipal vehicles. In many cities, even the empty spaces above buildings have been turned into a special type of private property — “air rights” — that can be bought and sold as entitlements to build skyscrapers in empty spaces now redefined as legal property.

Commoners, of course, have a more expansive, egalitarian idea of what cities should be. Pulska Grupa, a group of architects and urban planners from Pula, Croatia, put it in this way in their Kommunal Urbanism Social Charter: “We imagine city as a collective space which belongs to all those who live in it, who have the right to find there the conditions for their political, social, economic and ecological fulfillment at the same time assuming duties of solidarity. This concept of the city is blocked by capitalist dialectic based on difference in public and private good. From these two poles State and Market emerge as the only two subjects. We want to escape this dialectic, not to focus on eventually ‘third subject,’ but on a group of collective subjectivities and the commons that they produce.”

Pulska Grupa uses the language of the commons to help reassert a moral entitlement to public spaces. Such language helps claim the right to access and use public spaces and create new spaces with one’s own tools and imagination, especially in the face of bureaucratic systems that ignore basic human rights and social needs. In a rudimentary sense, that is what the Occupy movement was all about, too. Commoners took over public spaces as a physical protest against oppressive enclosures that deny basic rights and dignity. That is also the goal of many “right to the city” movements around the world that are striving to reclaim cities whose design and operations have been captured by developers, industry and the very rich.

It is important to remember that access to open, uncontrolled public spaces is directly related to the vitality of democratic culture. It was no accident that following Generalissimo Franco’s death in Spain, the city of Barcelona created all sorts of new public squares. These spaces are crucial to the ability of citizens to express themselves as a collective in public — and to challenge government abuses of power. We have seen how the existence of Tahrir Square in Cairo was critical to the public protests that toppled President Mubarak. That was surely a key reason why Turkish president Tayyip Erdogan in 2013 sought to transform Istanbul’s Gezi Park in Taksim Square into a shopping mall, and then used violence to expel peaceful protesters. Public, physical spaces are important in enacting democracy.

The enclosure of public spaces is essentially an anti-democratic act. When shopping malls supplant our public squares and corporate brands seize control of our parks and our promenades, we lose our capacity to see each other as a people. We can’t socialize and speak publicly, and it becomes harder for individuals to identify and empathize with each other. The erosion of public space means that it is much harder to be commoners. Without these spaces, we are forced into playing roles dictated by the Market and the State — acquisitive consumer and quiescent citizen.

Enclosures of Infrastructure

One of the easiest ways to make serious money is to somehow engineer a private takeover of infrastructure resources. Highways, bridges, airports, telecommunications systems and the Internet are coveted prizes because any private enterprise that controls them can reap risk-free revenues by bypassing competition and charging monopoly or oligopoly prices. Owners can also leverage their control of infrastructure to shape people’s habits and steer them to related products in which the company has an interest.

Microsoft shrewdly leveraged its control over 90 percent of computer operating systems (Windows) to spur sales of desktop applications (Office, including Word, Excel and PowerPoint), by pressuring manufacturers to bundle the Office program into the pre-installed Windows software on computers. This strategy enabled Microsoft to reap enormous profits, stifle competition and shape the contour of future markets. By enclosing the commons of computer technical standards — a key infrastructure resource — Microsoft was able to slow innovation to suit its own business interests and shrink the diversity of software applications. The dozens of word-processing programs that used to compete in the marketplace, for example, have shrunk to only a few. Today Word is run on more than 90 percent of all computer desktops. And lest state or local governments try to change this situation, Microsoft has taken pains to lobby aggressively against open software standards in government procurement.

Infrastructure that is kept open and accessible to all can help guarantee that there is competition and innovation in the marketplace. It can also help protect all sorts of nonmarket social concerns, such as assuring universal access to infrastructure (e.g., roads, waterways and the Internet) and protecting the needs of future generations.

The Internet may be the most significant piece of infrastructure now endangered. In many parts of the world, cable and telephone companies are trying to exploit their oligopoly power as “on-ramps” to the Internet. They want to be able to charge a premium for providing faster, higher-quality service and larger amounts of bandwidth that people can use for uploads and downloads. If such “service tiers” and differential pricing were to take root, it would open the door to a balkanization of the Internet. Large corporate users would enjoy faster, more reliable service while ordinary users and non-profits would be stuck with slower, inferior access.

Rather than allow the Internet to remain a commons that is open and nondiscriminatory in how it transmits data, cable and telephone companies want to be able to censor or slow down types of network traffic that might compete with their own business interests. So, for example, if cable and telephone companies don’t want the Internet phone service Skype or video-streaming services competing with their own services (or those of their partners), they could choose to shut them out or slow them down.

This is why so many public-interest advocates around the world are insisting on so-called net neutrality policies for the Internet. Imagine if the dominant telecom providers had been allowed to discriminate against Google when it was a startup fifteen years ago. It never would have gotten off the ground. Imagine if cable companies had been allowed to screen out or slow down YouTube videos when that company was just launching. Imagine all the innovative competition that would be stifled if Internet service providers could say “yea” or “nay” to the sorts of Web traffic they would allow on “their” wires. They could veto what future technologies or services we could enjoy.

Historically, regulatory policies known as “common carriage” have assured open, nondiscriminatory access and pricing to telephone lines. Such rules have been adopted precisely to prevent dominant companies from stifling competition. Net neutrality follows in that tradition. It is an essential tool for assuring the Internet’s infrastructure is treated as an accessible, nondiscriminatory commons, and not simply as a proprietary corporate asset. Without such rules, Internet users could lose their most basic online freedoms.

These attempted enclosures of the Internet parallel what has happened with the broadcast airwaves in many countries. In the US, the electromagnetic spectrum used for broadcasting belongs to the public. In return for being allowed free use of an essential public infrastructure, the airwaves, broadcasters were originally required to act as “public trustees” of the airwaves with legal requirements to serve the “public interest, convenience and necessity.”

For decades, broadcasters “paid” for their spectrum by adhering to a handful of modest regulatory requirements to air local news, children’s shows and educational programming. But these rules were eliminated during a massive round of deregulation under President Ronald Reagan in the 1980s and President Bill Clinton in the 1990s. Free-market deregulators simply rescinded the industry’s side of the bargain and brazenly declared that market-driven broadcasting is the public interest. Broadcasters enjoyed a sweet deal: exclusive legal control over a valuable public asset worth billions of dollars, at no cost to them!

The corporate takeover of the airwaves infrastructure (assisted by liberals, it should be noted) has meant that market values dictate the type and quality of programming being aired. This accounts for the endless stream of reality shows, sexual titillation, vulgarity and violence on American TV — not to mention as many as twenty minutes of commercials per hour and “product placement” during shows.

A new frontier in the enclosure of infrastructure is Wall Street’s attempts to buy roads, bridges and airports that generations of taxpayers paid for. Investors want to acquire equity ownership or long-term leases on civil infrastructure so they can reap guaranteed high rates of return and enjoy low risks.

In Indiana, for example, investors have now acquired a 99-year lease on a long stretch of the Interstate 90 highway as well as the Chicago Skyway road, both of which they have turned into toll roads. The City of Chicago now lets a private company owned in part by Morgan Stanley manage its thirty-six thousand parking meters, a deal that has tripled parking rates, introduced meters where they previously didn’t exist and reduced the quality of service. The City’s inspector general later found that the $1.15-billion privatization deal was undervalued by $974 million. And now the public and government have even less public influence over how the system is run.

Political leaders often favor such deals because they allow them to avoid raising taxes or making public spending commitments to pay for infrastructure. But privatization also means that the public loses control over infrastructure for which it has already paid billions. Private companies that manage public infrastructure are allowed to skim the cream from the operation while cutting quality, reducing employees’ wages and shifting costs to future generations.

This familiar dynamic is why “public/private partnerships” often amount to hidden scams that bilk taxpayers. The government assumes the risk of business failure while guaranteeing healthy profits no matter what happens to the business. Variations on this theme of corporate socialism — in which profits are privatized and risks are socialized — can be seen in government dealings with the water, energy, highway construction and financial industries. Sometimes the hidden subsidy takes the form of loan guarantees, with the government guaranteeing to pay debts if companies default. Sometimes the subsidy takes the form of regulatory schemes that guarantee profits to electricity and water suppliers while quietly reducing their infrastructure costs, legal liabilities and operating risks. In the US, governments have given industry tax-exempt bonds totaling more than $65 billion over the past ten years to reduce the financial risks of private investors. Among the beneficiaries: a North Carolina winery, a Puerto Rican golf resort, a car museum in Kentucky and Goldman Sachs and Bank of America, which both got subsidized office buildings.

THE NOVELIST WILLIAM FAULKNER once said, “The past is never dead. It’s not even past.” So it is with enclosures. They are not distant and forgotten episodes of history; they and their social and ecological harms continue. They remain a deep imperative of our modern capitalist economy. An incestuous Market/State alliance — not “free markets” — is the order of the day. The magnitude and mendacity of this alliance was laid bare in the aftermath of the 2008 financial crisis as the federal government bailed out banks and financial institutions while letting them evict millions of Americans from their homes.

Of course, the methods of enclosure have changed a great deal since the Middle Ages. Instead of stone walls and hedges, modern-day enclosures are achieved through international trade treaties, property law, lax regulation and corporate asset purchases. But the handmaidens of enclosure — stealth, complexity and persuasive cover stories — remain all too familiar. The lords and ladies fine continue to take things that are yours and mine — while working mightily to divert our attention from the disruptive injustices of their enclosures.

5

ENCLOSURES OF KNOWLEDGE AND CULTURE

IF YOU’VE EVER SUNG “Happy Birthday” at a restaurant or park, you are — in the entertainment industry’s sense of the word — a “pirate.” That’s because the Warner Music Group owns the copyright to “Happy Birthday.” The song was written in 1858 by two sisters, Mildred and Patty Hill, who were inspired by Negro folk songs and a tune called “Good Morning to All.” Amazingly, their piece of mid-nineteenth-century music, originally intended for schoolchildren, will remain a piece of private property until it enters the public domain in 2030 — 172 years after its “original” creation.

In the meantime, the Warner Music Group rakes in about $5,000 a day in royalties from “Happy Birthday,” or nearly $2 million a year. Copyright lawyers don’t seem to notice that the only reason this song has any commercial value at all is because it has circulated freely for generations in people’s households, a tenacious host of folk culture that exists outside of the marketplace.*

The “Happy Birthday” story is no aberration, alas. It is just one of countless contemporary enclosures of the cultural commons. In the early 2000s, after hearing too many of these stories, I cofounded a Washington, D.C., advocacy group, Public Knowledge, to stand up for the public’s stake in copyright and Internet policy. The experience prompted me to write a book, Brand Name Bullies, documenting some of the most outrageous examples of overreaching by entrenched media industries that use copyright and trademark to claim proprietary control over all sorts of our creativity and culture.

I find dark amusement in the greed of the American Society of Composers, Authors and Publishers (ASCAP), the music-licensing body that threatened dozens of children’s summer camps with legal action in 1996. The summer camps’ big crime was to sing copyrighted songs. By ASCAP’s reckoning, commercial summer camps that organize children to sing around the campfire and dance in the dining hall are hosting “public performances.” And, as copyright law clearly states, public performances of copyrighted songs require payment to copyright holders. ASCAP reportedly sought $1,200 per camp per season as an opening offer. The organization’s chief operating officer told a reporter at the time, “They [camps] buy paper, twine and glue for their crafts — they can pay for the music, too.”

Once the public and press learned of these outrageous demands, the barrage of public criticism became so intense that ASCAP backed off. Mercifully, kids in summer camps were allowed to sing and dance to “Puff the Magic Dragon” and “Row, Row, Row Your Boat.” It bears noting, however, that singing copyrighted songs at camp remains an ASCAP-granted indulgence, not a legal entitlement.

These examples may seem extreme, but they point to one of the great transformations in culture over the past century. You and I may consider music, film and photographs to be the glue that bind a society together. In truth, this is only a secondary effect. In the eyes of the law, such creative works are little more than marketable units of “intellectual property.” For film studios, record labels and book publishers, culture = product. Creative works = private property.

This a fairly audacious inversion of the history of human culture. From time immemorial, human beings have freely shared their creativity with each other. Culture has always been about imitating, extending and transforming earlier creative works. Art has always been a communal, intergenerational act of borrowing. The Greek legend of Pygmalion was the basis for a George Bernard Shaw play of the same name, and later for the musical My Fair Lady. The musical West Side Story is clearly based on Shakespeare’s Romeo and Juliet, and Shakespeare himself did his fair share of recycling from Ovid and other ancients. Mark Twain’s Huckleberry Finn owes a huge debt to Homer’s Odyssey, which itself draws heavily upon oral traditions. Culture cannot thrive without a commons of shared creativity.

It is impossible to imagine the development of jazz, the blues or hip-hop if musicians had not been able to freely borrow from each other. The great American folk singer Woody Guthrie proudly acknowledged that his folk music was cobbled together from the bits and pieces of old blues masters, hillbilly singers and cowboy music. Taking aim at the commercial ethic that was already beginning to dominate music in his time, Guthrie wrote, “This song is copyrighted in US. . . for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ours, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it.”

The 28-year period of copyright protection that prevailed in Guthrie’s time has since been extended several times and now lasts for an author’s lifetime plus 70 years. This is ostensibly the length of monopoly control that an author needs to be motivated to create. According to the logic of copyright law, I would not be sufficiently motivated to write this book unless I could enjoy copyright protection until the year 2100, more or less.

There have been many obscure changes to copyright law over the past century that have expanded the rights of copyright holders. Few have been as consequential as the 1976 change to US law that made all creative works — including scribbles on a piece of paper and casual chords recorded on a tape recorder — automatically copyrighted. No longer did an artist or her publisher have to affirmatively register a work to get copyright protection; all works created since the 1976 law are automatically born in an envelope of private property rights. Most countries of the world — 165 by 2012 — have adopted this standard by ratifying the Berne Convention, an international copyright treaty that prohibits formal registration requirements for copyright protection.

This sweeping change in the scope of copyright law has been followed by intensive PR campaigns by the entertainment industry to persuade us that music, film and books must be seen as “intellectual property” that is as sacrosanct as your home or car. Likening culture to private property has been insidiously effective — if misleading — because it has allowed industry to claim that any unauthorized use of creative works constitutes a theft. Our natural human impulses to imitate and share — the essence of culture — have been criminalized.

That, in a nutshell, is the problem we face today. Copyright and trademark law — with help from new types of “technological locks” that encrypt DVDs and ebooks — are privatizing more and more of our shared culture so that large companies can squeeze more money from it. As we will see below, this is limiting the freedom of creators in all media. It is also homogenizing culture, erecting legal barriers to new creativity, scientific research and free expression.

Copyright scholar James Boyle wrote a famous essay declaring that we are in the midst of a “Second Enclosure Movement.” The first was, of course, the English enclosure movement, described in the next chapter. The second one, now underway, is the over-privatization (i.e., corporatization) of creative works, information and knowledge.

This trend has been going on for several decades, but it has accelerated with the arrival of new electronic technologies: video recorders, satellite and cable television, personal computers, the Internet, smartphones, ebook readers and countless others. Before these devices, words were affixed to sheets of paper, film images were frozen in celluloid and music was embedded into vinyl. It was technically difficult to extract the “content” from the medium and costly and cumbersome for ordinary people to copy and share copyrighted works fixed on paper, celluloid or vinyl. But as one medium after another has gone digital, and as the Internet became a universal communication medium, it has become far easier to copy and share creative works. To industry’s chagrin, it has also become increasingly difficult to control creative works as private property. Digital bits are just too fluid and portable. That’s what Stewart Brand, the countercultural futurist, meant when he famously said that “information wants to be free.”

The real issue is that the new technologies are undermining the deeply entrenched, profitable business models that

Hollywood, record labels and publishers have relied upon for nearly a century. These large corporations don’t like how new technologies are enabling newcomers to outcompete their antiquated business models by selling “content” in new and cheaper ways. Hollywood once regarded the arrival of television, cable TV and the videocassette recorder as profound threats to its core business — the theatrical exhibition of films — only to discover that each invention opened up lucrative new markets for it. In this tradition, studios are now incensed that people dare to use excerpts of films and television shows noncommercially and without authorization — a right explicitly protected under the “fair use” (or in some countries, “fair dealing”) doctrine of copyright law.

For the entertainment industry, the problem is not just a constant stream of new technologies that make it easier to copy, disseminate and remix cultural works. It’s that people can now create and share their own works. They don’t necessarily have to buy anything. In a sense, creativity generated outside of the marketplace, via digital commons, is becoming a robust new kind of competition to market-based culture.

Hollywood and the record labels have therefore run to legislatures around the world to seek special legal protections. They have also joined forces with other media industries to seek stronger international treaties that expand their rights and punish “pirates” (defined very broadly). Their primary weapons are stronger copyright laws, draconian legal penalties for unauthorized uses of their works and new technology locks such as “digital rights management” on music CDs and DVDs of theatrical films. It all amounts to a cultural lockdown.

One of the most outrageous examples was the Walt Disney Company’s fierce campaign to extend the terms of copyright protection by twenty years. In the mid-1990s, the company was worried that its flagship character, Mickey Mouse — first depicted in a 1928 cartoon short, “Steamboat Willie” — would enter the public domain in 2004. Pluto, Goofy and Donald were destined to become public-domain characters five years later. To protect its cartoon characters from becoming freely available, Disney mounted an aggressive lobbying campaign to enact the Copyright Term Extension Act. It flexed its political muscle by giving campaign contributions to most of the congressional sponsors of the legislation.

In 1998 Disney succeeded in extending the length of copyright terms by twenty years. As a result, an estimated four hundred thousand books, movies and songs due to enter the public domain will remain under private ownership and control until at least 2018 — a windfall to copyright holders worth tens of billions of dollars.

The irony is that copyright is intended to stimulate new creativity by rewarding creators. But it’s literally impossible for this legislation to induce George Gershwin, Joseph Conrad, Robert Frost, Lewis Carroll or F. Scott Fitzgerald to create additional works. They are all dead. The extension of copyright terms was a crude political case of corporate protectionism. In order to protect the 3 percent of their works from the 1920s and 1930s that still have some commercial value, Disney and its allies succeeded in locking up all works from that period, including the 97 percent that are not even commercially available.

Trademark law is another tool that is being abused to shut down the cultural commons and protect markets. Trademark law governs names and logos used to identify companies and brand-name products. It has the legitimate goal of preventing consumer fraud and confusion in the marketplace. But big companies are increasingly using trademark law to control their public images and prevent ordinary people from criticizing or making fun of their products.

For example, Mattel has been quick to sue anyone who uses images of Barbie dolls or the Barbie name in unauthorized ways, even for social commentary or parody. A few years ago, the company went after a photographer who had mounted a photo exhibit depicting Barbie in a variety of silly and sexual positions. Mattel once pressured a small publisher to change the subtitle of its book about anorexia and eating disorders because it used the word “Barbie.”

McDonald’s has threatened legal action against dozens of restaurants that had names like “McVegan,” “McSushi” and “McMuffin.” The company once prevailed against a motel chain known as “McSleep” for trademark infringement. With some thirty thousand outlets in a hundred countries, McDonald’s essentially claims that it has global ownership of the prefix “Mc” as applied to restaurants and related businesses.

Such trademark abuses are common. The Village Voice newspaper in New York City once tried to stop the Cape Cod Voice and other newspapers from using the word “Voice.” There are actually trademarks for smells, such as “the smell of freshly cut grass on tennis balls.” The US television network NBC owns a trademark on three musical notes played on a chime — “ding, dong, ding!” One wonders if Andy Warhol would have been able to create his Campbell Soup silkscreen if today’s trademark laws were in force fifty years ago.

The Marketization of Universities and Their Research

It may not seem obvious, but as professors Michael Madison, Brett Frischmann and Katherine Strandburg put it, the university is a “constructed cultural commons.” The university system uses the commons paradigm to help many different people work together to generate new knowledge. It manages the flows of knowledge as a living system, and devises ways to store knowledge, improve it and introduce it to new generations. The university is a complex ecosystem of many smaller-scale commons, such as the graduate and undergraduate college, the school, the department, the library, the archive, the lecture hall and the seminar room.

Anyone who lives within academia knows that the language of property rights and market transactions is quite alien to its ethos. A university does not buy and sell knowledge; it nurtures ongoing relationships of trust and reciprocity. It promotes sharing and collaboration in advancing knowledge. Well-regarded professors peer-review their rivals’ papers, for instance, without ever thinking of charging money for this service, one they also benefit from many times over. Of course, academia is also an arena of competition and rivalry, but there is a presumption within scholarly circles that knowledge should not become a proprietary product. It should be openly shared and preserved.

In fact, that is how academia helps assure the integrity of its research — through open scrutiny and debate. The community is the proper steward of the knowledge. Hoarding knowledge as a privately owned good is not only hostile to the community, it defeats the value-proposition of scholarship. The goal of scholarship is not to maximize profits but to advance the search for truth and root out error. People feel a responsibility to patrol the boundaries of the academic commons in order to identify anyone who might poison the truth with falsified research or plagiarism. That is the real value of the commons in academia: its effectiveness in nourishing ethical scholarship. It is always prepared to identify and punish the sloppy or deceitful researcher, and has historically frowned upon the entrepreneur who would privatize a research community’s work by patenting it for private gain.

The big story of the past thirty years has been the erosion of this ethic. The privatization and commodification of academic knowledge and scholarly relationships are now well advanced. The year 1980 was a major turning point in the history of the modern university, at least in the United States. That was the year that Ronald Reagan and Margaret Thatcher both won election and inaugurated new policy regimes based on an aggressive market fundamentalism. It was also the year that the US Supreme Court issued its famous Chakrabarty ruling, which opened the door for the patenting of bacteria, genes, living tissue and both natural and bioengineered life-forms.

Harvard University now owns patents for the so-called oncomouse used for laboratory research for cancer studies. It also owns patents on 23 synthetic nano-scale substitutes for elements of the periodic table. Patents on treatments for the AIDS virus mean that public funds are often used for developing medicines that later become privately owned and expensive to buy. Big Pharma thrives; indigent AIDS patients are more likely to die.

One of the most significant forces driving this new market ethic in biomedical research, among other fields, is the Bayh–Dole Act, a US law passed in 1980 and emulated around the world. Enacted at the behest of large pharmaceutical, chemical and biotech companies, the law authorizes universities to privatize publicly funded research by patenting it themselves, often in collaboration with corporate funders. The law encourages companies to see universities as sources of (cheap, publicly financed) research and development that it can colonize and corrupt to serve their short-term market needs. Not surprisingly, this has transformed many scholarly protocols and ethical standards. University administrators have intensified their search for ways to monetize scholarly and scientific research, launching “tech transfer” offices to court large corporations to fund major research institutes.

This is fine so far as it goes — but it also opened the door to corruption and serious ethical conflicts of interest. Universities and corporations have sought to claim patents in publicly funded research and privatize the profits. Even though taxpayers finance the most important drug breakthroughs, the patents are often owned by corporations and universities and the drugs are sold at high prices. US taxpayers have financed research that produced treatments for genetic disorders, depression and diabetes, and have invested in the research for Vasotec and Capoten for hypertension; the antiviral drug Zovirax; Prozac and Zantac for depression; Taxol for cancer; and Xalatan for glaucoma. But the patents for these drugs belong to corporations and their shareholders, not us.

Corporate partnerships with universities can corrupt university research priorities, often to the detriment of long-term basic research that would benefit the public. For example, instead of studying organic farming techniques and integrated pest management, a university biology department eager to secure corporate funding will find it more attractive to take money from Monsanto and study genetically modified crops. Instead of studying GNU/Linux and open source software as a tool that could help people in marginalized countries (and also reduce its own academic software bills), a university beholden to generous Microsoft research partnerships will find it attractive to steer students toward Microsoft’s proprietary software projects. This simply enlarges Microsoft’s customer and developer base while thwarting open innovation and competition.

Big Pharma has systematically corrupted the integrity of medical education in the United States, as Dr. Marcia Angell, a lecturer at Harvard Medical School, has documented in numerous articles. Top teaching physicians enjoy all sorts of cozy consultancies and junkets paid for by pharmaceutical companies. Not surprisingly, the country’s medical profession emphasizes the virtues of drug-based therapies over cheaper, sometimes better alternatives. In the US, nearly half of all continuing education for doctors is financed by drug companies. This expenditure of money has had predictable influences on the objectivity of medical research and clinical recommendations.

The enclosure of the academic commons has had all sorts of more subtle cascading effects. One is a decline in the spirit of collaboration and sharing. After universities enter into corporate partnerships, many professors are not allowed to share their research. It’s proprietary. Corporate sponsors often insist upon the power to suppress research results that might prove embarrassing to their business interests. Academic scientists and university administrations — having chosen in effect to become junior partners of large corporations — can get caught up in ethical conflicts of interest. Should they serve the public good or the private interests of corporate funders? Should academic norms of openness and sharing trump the proprietary terms of corporate research contracts?

As more academic knowledge becomes owned, it is creating what is called “patent thickets” — dense sets of patent rights that make it difficult to identify who owns rights and who is authorized to use them. Law professor Michael Heller calls this problem the “tragedy of the anti-commons” — the fragmentation of property rights such that it becomes harder for researchers to clear patent rights and collaborate without risking a lawsuit. Research into breast cancer was discouraged for years by the patents that a Utah biotech company claimed on “breast cancer susceptibility genes.” Many academic scientists were fearful of doing work that might run afoul of these gene patents. Fortunately, a landmark ruling by the US Supreme Court in June 2013 invalidated the patents by declaring that human genes cannot be patented. Still, patent thickets remain a serious impediment to discovery and innovation.

Corporate partnerships with universities have still other troubling effects. They can throw a cloak of secrecy over research methods and delay the timely publication of research results. Sometimes new research findings are delayed so that the sponsoring company can get a patent before competitors learn of the research. This can result in other academics doing duplicative or unnecessary research. There are many cases of researchers who have lost their jobs or had their research suppressed because their work proved embarrassing to a university’s corporate partners.

Historically, the State has treated academic research as a commons by building public universities, funding important research and respecting academic independence. This experience shows that the state and commons can work constructively together. But over the past generation, this ethic has eroded dramatically as the State and Market have enclosed the academic commons so that its resources can be used to spur short-term economic growth. No only do market innovation and competition suffer, the long-term, nonmarket costs are incalculable.

The Many Costs of Enclosure

Our brief survey of enclosures is meant to highlight the dangers of alienating nature, culture and social relationships for market purposes. Let me stress: it is entirely possible for markets and commons to “play nicely together.” But if the market system presses its demands too far; if it insists upon monetizing things that should not be given a price; if the scope of property rights are expanded too far; if companies insist upon privatizing access to basic resources that everyone needs; if monopoly ownership rights are allowed to squeeze out competition and nonmarket values — then enormous harm can result. Ecosystems are damaged. Commoners are dispossessed of vital resources. The character of the social order changes. The benefits for future generations are squandered. The freedom, autonomy and conviviality of commoners are eroded. A system that values inclusiveness and the meeting of basic needs is turned into a system of exclusion regulated by one’s ability to pay — a system that privileges large corporations over all others. Left unchecked, such enclosures will destroy the generative powers of academic commons.

This is one reason why the language of the commons is so useful. It helps us confront the pathological tendency of markets to force people, communities and nature to become “fictional commodities” in the market system. It helps us understand how the commons is a system that in fact creates enormous value. Much of this value would require vast expenditures if the Market or the State were to undertake similar efforts on its own terms. Consider how Linux, blood banks and Wikipedia oversee the production of valuable work with great speed, efficiency and trustworthiness. The more significant point, which will elude most economists and politicians, is that the commons is rich with all sorts of unmeasured, qualitative and particular types of value. Our most urgent challenge is to find better ways to protect the integrity of the commons and the value that they quietly produce.

* The song’s copyright may not even be valid, according to scholar Robert Brauneis. As he writes, “There are serious questions about whether a court would find ‘Happy Birthday to You’ to still be under copyright, due to difficulties with proving authorship of the song, with potentially improper copyright notice upon first publication, and with renewal applications that seem only to cover particular arrangements of the song rather than the song itself.” Yet because no one has a big enough financial incentive to challenge the copyright in court, says Brauneis, and because copyright law offers no easy way to invalidate a dubious copyright, “Happy Birthday to You” remains private property. In June 2013, filmmaker Jennifer Nelson, who is making a film about the song, filed a lawsuit against Warner/Chappell Music, Inc. to try to affirm that the copyright to “Happy Birthday to You” is invalid.

6

THE ECLIPSED HISTORY OF THE COMMONS

ONE OF THE MOST insidious things about enclosures is how they eradicate the culture of commons and our memory of them. The old ways of doing things; the social practices that once bound a people together; the cultural traditions that anchored people to a landscape; the ethical norms that provided a stable identity — all are swept aside to make room for a totalizing market culture. Collective habits give way to individualism. Cherished traditions fall victim to whatever works now or saves money today. The colorful personalities and idiosyncratic lore of a community start to fade away.

Karl Marx memorably described the commoditizing logic of capitalism, saying, “All that is solid melts into air.” Enclosures eclipse the history and memory of the commons, rendering them invisible. The impersonal, individualistic, transaction-based ethic of the market economy becomes the new normal.

If we are to understand the commons, then, it is useful to learn more about its rich, neglected history. Capitalist culture likes to think that all of history leads inexorably to greater progress, if not perfection, as society climbs toward the present moment, the best of all possible worlds. The complex, overlooked history of the commons tells a different story. It is an account of how human beings have learned new and ingenious ways to cooperate. It is a story of building new types of social institutions for shared purposes despite systems of power (feudalism, authoritarianism, capitalism) with very different priorities.

Commons tend to be nested within other systems of power and institutional relationships, and therefore are not wholly independent. There is often a deep “creative tension” between the logic of the commons and the imperatives of its host environment (whether feudal lords, technology markets or national laws). This is why many commons thrive in the interstices of power, in “protected zones” tolerated or overlooked by Power, or accidentally remote from it.

The stark reality is that commons tend not to be dominant institutional forms in their own right. This subordinate role can be seen in the flourishing of medieval land commons under feudalism; in mutual associations under socialism and communism; and, in our time, in gift economies such as academia and civic associations under capitalism. Such commons were (and still are) nested within larger systems of power and rarely functioned as sovereign forces.

Still, human reciprocity and cooperation go back millennia. With the dawn of civilization, legal traditions were invented that sought to protect the shared interests of the many and of future generations. The human impulse to cooperate is rarely expressed in purely altruistic forms; it tends to work in creative tension with individualism and power. Even though we like to contrast “individualism” and “collectivism” as opposites, in the commons they tend to blur and intermingle in complicated ways. The two are not mutually exclusive, but rather dynamic yin-and-yang complements.

In this chapter, I want to review some of the more salient themes of the commons throughout the centuries. Historical small-scale commons belie the claims made by contemporary economists that humans are essentially materialist individuals of unlimited appetites, and that these traits are universal. Quite the opposite. The real aberration in human history is the idea of Homo economicus and our globally integrated market society. Never before in history have markets organized so many major and granular elements of human society. Never before has the world seen so many societies organized around the principles of market competition and capital accumulation, which systematically produce extremes of selfish individualism, inequalities of wealth and crippling assaults on natural ecosystems.

This is worrisome on its own terms, but also because of the instability and fragility of large-scale, market-based systems. Six years after the 2008 financial crisis, the great powers are still scrambling to reestablish trust, credibility and social stability to many global and national markets. Whether through crisis or choice, it is virtually inevitable that the human race (or at least the industrialized West) will need to rediscover and reinvent institutions of human cooperation.

What Evolutionary Sciences Tell Us About Cooperation

Given their premises about individual self-interest, it is not surprising that economists consider the world a nasty, competitive place that will degenerate into anarchy unless the State steps in to restrain bad actors and mete out punishment. A formidable set of political philosophers — John Locke, David Hume, Thomas Hobbes — set forth this worldview in the eighteenth century; in the words of Hobbes, life was “solitary, poor, nasty, brutish and short.” Upon its principles of universal selfishness and individual “rationality,” entire systems of law and public policy have been built.

But what if this is mostly a “just so” story — a partially accurate fable that does not really describe the full empirical realities of human nature? What if it could be shown that human cooperation, reciprocity and non-rational behavior are just as significant forces as “competitive rationality” and “utility maximization”?

This is the startling conclusion of much contemporary research in the evolutionary sciences, especially brain neurology, genetics, developmental and evolutionary psychology, biology, organizational sociology and comparative anthropology. These sciences are confirming that social reciprocity and trust are deeply engrained principles of our humanity. They may even be biologically encoded.

One of the first scientists to explore this possibility was the Russian zoologist Petr Kropotkin in his 1902 book, Mutual Aid: A Factor in Evolution. Kropotkin surveyed the animal kingdom and concluded that it “was an evolutionary emphasis on cooperation instead of competition in the Darwinian sense that made for the success of species, including the human.” Animals live in association with each other and mutually aid each other as a way to improve their group fitness.

Mainstream science in the twentieth century took a very different direction, however. It has generally embraced models of rational self-interest to explain how organisms behave and evolve. In the evolutionary sciences, natural selection has traditionally been seen as something that happens to individuals, not to groups, because individuals have been considered a privileged unit in the biological hierarchy of nature. Thus evolutionary adaptations have been thought to happen to individuals, not to collectivities or entire species. Scientists have generally dismissed the idea that biological traits that are “good for the group” can be transmitted and evolve at the group level.

Over the past decade, however, there has been an explosion of new research by respected scientists such as Martin Nowak, E.O. Wilson and David Sloan Wilson, who argue that group-level selection is a significant force in human and animal evolution. Empirical evidence suggests that evolutionary adaptations can and do occur at all levels of the biological hierarchy, including groups. The basic idea is that while cooperation and altruism can be “locally disadvantageous” for individuals, they can be highly adaptive traits for groups. As E.O. Wilson and David Sloan Wilson put it, “Selfishness beats altruism within groups. Altruistic groups beat selfish groups. Everything else is commentary.” In short, reciprocal social exchange lies at the heart of human identity, community and culture. It is a vital brain function that helps the human species survive and evolve.

Controversy still rages, of course, but it would appear that human beings are neurologically hardwired to be empathic and cooperative, and to connect emotionally with their fellow human beings. As author and essayist Rebecca Solnit showed in her book A Paradise Built in Hell: The Extraordinary Communities That Arise in Disaster, members of communities beset by catastrophes such as the San Francisco earthquake of 1907, the German Blitz of London during World War II and the 9/11 terrorist attacks generally show incredible self-sacrifice, joy, resolve and aching love toward each other. The communities such disasters create are truly “paradises built in hell.” Her book is an answer to the economists and political leaders who believe that the world is made up of isolated, selfish individuals who must be governed through authoritarianism and fear.

“Perhaps the most remarkable aspect of evolution,” writes Harvard theoretical biologist Martin A. Nowak, “is its ability to generate cooperation in a competitive world,” adding, “Thus, we might add ‘natural cooperation’ as a third fundamental principle of evolution beside mutation and natural selection.” It bears noting that the popularity of “individual selection theory” during the latter half of the twentieth century coincided uncannily with the heyday of market culture and its ethic of competitive individualism. A case of culture affecting scientific observation?

What is notable about the more recent findings of evolutionary science is the recognition that individual organisms function within a complex system of interdependence. This means that individual self-interest and group survival tend to converge, making the supposed dualism of “self-interest” and “altruism” somewhat artificial. Anyone who participates in useful online communities will recognize this feeling; individual and group interests become more or less aligned and self-reinforcing, if occasionally disrupted by disagreements and external jolts.

As a social scientist, Professor Elinor Ostrom studied hundreds of cases around the world in which communities were able to self-organize their own systems of commons-based governance and develop a cooperative ethic. Her research unearthed an ethnographic reality: that commons can persuade individuals to limit their narrow self-interests and support a larger collective agenda. The gratifying news is that evolutionary scientists are confirming these claims at the more elemental level of genetics, biology, neurology and evolutionary psychology.

The Forgotten Legal History of the Commons

The subterranean life of the commons in evolutionary science — which is only now being recognized — parallels its legal history. The law of the commons has also been largely ignored, and yet it actually goes back to ancient Egypt and the Roman Empire, and is stitched like a golden thread throughout medieval history in Europe. Landmarks of commons-based law — such as Roman legal categories for property and the Magna Carta and its companion Charter of the Forest — are deeply embedded in Western law.

Given the market orientation of contemporary law, however, the legal principles that originated and evolved in the commons over centuries have mostly been eclipsed. This is partly because the Western tradition tends to see law as a written system of rules and sanctions administered by civic institutions like legislatures, courts and presidents. The modern liberal polity has trouble recognizing or enforcing collective interests (except those of investors, via the corporation) because the liberal State is a formal, government-managed system that focuses on individual rights.

If we are to understand the law of the commons, we must start by expanding our notion of law itself. Law is not just formal, written and institutional; it is also informal, oral and social. The law of the commons represents something of a threat to formal law because its substance and legitimacy derive from the always-shifting social practices of the community. “Commoning” is often experienced as more responsive and morally legitimate than state law, particularly when the state itself is rigid, corrupt, incompetent or captive to corporate influence.

Of course, state law can play many constructive social and economic roles, particularly in confronting corporate abuses or antisocial behaviors such as racial or gender discrimination. And informal communities may have their own odious attitudes and criminal tendencies. My only point is that a formal system of statutes, court rulings and state enforcement will become a source of tyranny if it does not connect with and respond to “the street.” It must have robust feedback loops to help formal law reflect the evolving sentiments of people.

In a brilliant essay, “The Life of the Law Online,” legal scholar David R. Johnson likens law to a biological organism. He sees law as more closely resembling life than a machine; in this sense, it has a life and history of its own. “Law is a story we tell each other about justice and shared social values,” writes Johnson. “We have to retell this story every day — it replicates and persists only insofar as we do that.”

That is essentially how the law of the commons works. A given community creates its own body of (informal, social) law to suit its needs, then replicates it through everyday social activities. This is how commons devoted to open source software, Wikipedia and academic disciplines arose — as self-organized communities with their own self-enforced rules and social ethics. Sometimes commoners may actually succeed in formalizing their law through conventional systems of state law (statutes, regulations court rulings), but this is rare. As historian Peter Linebaugh has put it, “Commoners think first not of title deeds, but of human deeds: How will this land be tilled? Does it require manuring? What grows there? They begin to explore. You might call it a natural attitude.”

Custom is therefore a vital element of the law of the commons. It functions as a cultural code that provides a unifying social ethic to a community. It is a shared narrative that links the community to earlier generations, and to a repository of wisdom about local resources and how best to manage them. As property scholar Carol Rose puts it, custom is “a medium through which a seemingly ‘unorganized’ public may organize itself and act, and in a sense even ‘speak’ with the force of law.”

This corresponds to David Johnson’s claim that law amounts to a “self-referential, organizational identity” that belongs to the people who make it. “If law has a life of its own,” he writes, “and in some sense causes its own form of order and persistence, we should be studying its biography rather than pretending that we can design and repair its mechanisms from the outside.” In other words, we must understand the subjective, socially internal dynamics of commons and recognize that this is where law originates.

When law is seen in this perspective — not just as a series of formal constitutions and statutes but as a self-organized system that a community creates to manage itself and its resources in orderly fair ways — it is easy to see that the commons itself is a living embodiment of law. It amounts to an evolving social contract. Individuals come together to negotiate the rules and norms that will govern their community. They specify how members may access and use shared resources. They set about making rules for managing land, water, fish and wild game, and for monitoring usage and punishing vandals and free riders. In this broader sense, the law of the commons extends into the mists of time and precedes formal written law by many millennia.

From the outside, the law of the commons as embodied in an indigenous culture may seem static and slow moving, even frozen. But in truth, “commons law” constantly adapts to changes, often in small incremental ways. It is especially mindful of local realities: its signature strength. The tensions arise when formal, written law is not roughly congruent with such “commons law” and does not leave space for commoning. Is formal state law too strict and rigid — or is it open to change through peaceable politics and due process? Does it so insist upon market relationships and norms such that real citizenship is not possible?

Throughout history, state law has occasionally recognized the “vernacular law” of commoners — or at least, larger public needs — by formalizing such principles within the legal apparatus of the state. One of the earliest such instances of this occurred in the Roman Empire, which recognized explicit categories of law for property, including common property. In 535 AD, Emperor Justinian gave the first legal recognition of the commons when he enshrined res communes in his Institutes of Justinian body of law. “By the law of nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea. . . . Also all rivers and ports are public, so that the right of fishing in a port and in rivers is common to all. And by the law of nations the use of the shore is also public, and in the same manner, the sea itself. The right of fishing in the sea from the shore belongs to all men.” (emphasis in original).

This legal principle — that neither the State, commerce nor citizens could make proprietary claims on resources that belong to everyone — has survived in what is known in American law as the “public trust doctrine.” This doctrine formalizes the idea that the State has an affirmative duty to protect natural resources for present and future generations; it cannot sell or give away land, water or wildlife to any private party. The public trust doctrine has traditionally been applied to rivers, oceans and the coastal shoreline, and is invoked to protect the right of the unorganized public to use those waters for fishing, navigation and recreation. Versions of the public trust doctrine can also be found in most legal systems of the world and in many of the world’s major religions. It stands for the principle that certain resources belong to everyone, morally and legally, and that the State cannot abrogate this right.

It is significant that res communes is a separate category from res publicae, another legal category that describes public things that belong to the state. Res communes is not simply “state-owned” property, but a class of property that lies beyond the power of the state. Not surprisingly, heads of state are not generally pleased to have to recognize the commons as a separate sphere of resources with its own moral authority and legal protection above and beyond their control.

Consider King John. In thirteenth-century England, a series of monarchs began to claim larger and larger plots of forest lands for their personal recreation and use, at the expense of barons and commoners. By threatening the basic livelihoods of commoners who depended on the forest for their food, firewood and building materials, these royal encroachments on the commons provoked prolonged and bitter civil strife. Livestock could not roam the forests; pigs could not eat acorns; commoners could not gather timber to fix their homes; boats could not navigate rivers upon which dams or private causeways had been built.

After years of brutal armed conflict, King John in 1215 formally consented to a series of legal limitations on his absolute power and stipulated that other members of society, including commoners, were entitled to due process, human rights and subsistence, among other rights. This was the great Magna Carta, one of the foundations of Western civilization. The rights of habeas corpus, trial by jury, the prohibition of torture and the rule of law all derive from the Magna Carta. All these legal principles have since found expression in modern constitutions around the world as the fundamental rights of citizens. They are also affirmed by a number of leading human rights conventions.

A near-forgotten document, the Charter of the Forest, also bears mention here. Signed two years after the Magna Carta and later incorporated into it, this charter recognized the traditional rights of commoners to use royal lands and forests. Thus commoners formally enjoyed the rights of pannage (pasture for their pigs), estover (collecting firewood), agistment (grazing) and turbary (cutting of turf for fuel) on royal properties. As a practical matter, the Charter of the Forest gave commoners basic rights to subsistence. It also protected them against state terror as waged by the king’s sheriffs in their defense of the king’s enclosures.

As this brief history suggests, the law of the commons points to a different type of law — one that originates from the lived experience of commoners; one that tends to be informal, situational and evolving rather than fixed and written; and one that encourages social mutualism and equality over commercial goals or state authority. Peter Linebaugh is instructive on this point: “Commoning is embedded in a labor process; it inheres in a particular praxis of field, upland, forest, marsh, coast. Common rights are entered into by labor. They belong to experience, not schooling. . . . Commoning, being independent of the state, is independent also of the temporality of the law and state. It’s much older. But this doesn’t mean that it’s dead, or premodern, or backward.”

Commoning remains vitally important as a bulwark against the abuses of formal law because it represents one of the few ways that formal law can be made accountable to the people. Formal law can be more easily corrupted and betrayed because it has identifiable access points — legislatures, courts, heads of state — where bad actors can traduce it, whereas vernacular law is deeply rooted in the daily lives of people and their culture and is therefore harder to manipulate or corrupt.

As welcome as the Magna Carta was to commoners, its guarantees could only be assured through constant vigilance. Commoners were skeptical, and understood the necessity of fighting back. This is one reason why kings repeatedly republished the Magna Carta over the years, ritualistically affirming that the basic human rights of commoners were indeed being upheld. Of course, a piece of paper has proved to be of only limited value in stopping the abuses of state power. As we’ve seen in our own times, the US government has, in the name of fighting terrorism, ignored with impunity the rights of habeas corpus, due process, the prohibitions on torture and other principles of the Magna Carta.

So, too, in the sixteenth to nineteenth centuries, the Magna Carta did little to impede enormous new enclosures of land. In 1536, King Henry III eliminated Catholic monasteries, unleashing a fierce round of enclosures by lords and nobles — a “massive act of state-sponsored privatization,” as Linebaugh calls it. Authorized by four thousand acts of Parliament over several centuries, a rising class of gentry seized roughly 15 percent of all English common lands for their own private use. These enclosures destroyed many commoners’ social connection to the soil and trampled their social identities and traditions, paving the way for their proletarianization.

As enclosures intensified, women who tried to maintain their old ways of commoning — who asserted their rights to common, if only because they had no other way to subsist — often found themselves accused of being witches. Silvia Federici explores these themes in her feminist history of the medieval transition to capitalism, Caliban and the Witch. She writes: “The social function of the commons was especially important for women, who, having less title to land and less social power, were more dependent on them for their subsistence, autonomy and sociality.”

The Eclipse of the Law of the Commons

“Enclosure meant a shift away from lives guided by customs preserved in local memory toward those guided by national law preserved in writing,” observed commons scholar Lewis Hyde. “It meant a shift in the value of change itself, once suspect and associated with decay, now praised and linked to growth. It meant a change in the measurement and perception of time” (as factories began to rationalize and measure time and direct people’s activities based on it).

As people’s access and rights to land were separated from social custom, a new type of person arose — the individual, someone who was not visibly a member of a collective and whose worldview became oriented around personal wages, technological progress, social progress and material gain. The new market order, writes Karl Polanyi, created people who were “migratory nomadic, lacking in self-respect and discipline — crude, callous beings.” All of this followed when the “bundle” that constituted the commons — resources, commoners and social practices — was disassembled and commoditized to serve the needs of the new industrial market order.

Of course, enclosure had some positive effects, such as doing away with the master/commoner relationship, transforming vassals into freeholders. But this new “freedom” cut both ways: while it liberated people to pursue new identities and social freedoms, it also destroyed the social cohesion of the commons, a person’s assured subsistence, ecological sustainability and the stabilizing linkages between identity and resource use.

The history of socialism and political liberalism can be seen as attempts to ameliorate some of the worst structural problems created by the dissolution of the commons. European socialism in the nineteenth and twentieth centuries introduced new sorts of social mutualism and bureaucratic systems to try to meet the needs of former commoners in the new circumstances of industrialized society. Bottom-up innovations such as consumer cooperatives, social security systems and municipal water supplies were invented. The idea was to meet the basic needs of commoners in a very different historical context, that of the Market/State.

These innovations were certainly an improvement over the laissez-faire order, and indeed, many of the early socialistic or utopian projects more or less functioned as commons, perhaps because they still had a lively memory of traditional commons. But as workers’ collectives adapted to the requirements of state law, bureaucracy, corporations and market forces, the practice of commoning — and the vitality of commons — slowly disappeared.

State regulation has been another means to compensate for the problems introduced by “free markets,” namely the displacement of costs and risks onto the environment, communities and the human body. The regulation of environmental practices and the safety of food, drugs, medical devices, chemicals, autos and consumer products can be seen as attempts to use the cumbersome apparatus of formal law, science and bureaucracy to enforce the social and ethical norms of commoners. Given the scale of commercial dealings and the power of transnational corporations, state regulation is absolutely necessary; conventional commons are too small, unorganized and lacking in resources to assure socially responsible outcomes.

On the other hand, regulation has not worked so well. The centralization and formalization of law made it easier for regulated industries to capture and corrupt the process — no surprise given the power of the Market/State and the depth of its overlapping interests. It remains something of an open question how governance might be restructured to rein in the chronic social and environmental abuses generated by markets.

Just as state regulation has a very uneven record, so the state’s role as a trustee of common assets is uneven and often dismal. We easily forget that many resources managed by the state belong to the people. The state does not “own” the air, water, public lands, coastal areas or wildlife, and cannot do what it pleases with them. It is authorized to act only as an administrative and fiduciary agent of the people. Under the public trust doctrine, it cannot give away or allow the destruction of these resources. To emphasize the state’s stewardship obligations, I like to call large-scale, state-mediated commons state trustee commons (discussed at length in Chapter 9).

Unfortunately, the state often neglects its responsibilities to “intervene” in markets because it fears that it might inhibit economic growth and violate widely believed fictions about “free market” principles. Safety regulations and public-service requirements, for example, tend to stabilize society, prevent serious harm and assure a rough social equity. But in our neoliberal times, even these goals are seen by most governments as an unacceptable burden on capital and corporations, and as a drag on economic growth.

To be sure, many grassroots movements have developed a modest independent sector of cooperatives and mutual association. Unfortunately, these alternative provisioning systems have generally failed to reach a meaningful scale. Similarly, while many important regulatory protections have been won over the years, they have failed to keep pace with the relentless stream of new problems generated by markets. In addition, regulation is generally dominated by legal proceduralism and scientific expertise, so that the views of local residents or individual consumers do not carry as much weight in decision-making as those of lawyers, credentialed technical experts and corporate officials. Commoners often find themselves delegitimized as participants in the governance process, or simply unable to afford the costs of participating.

In practice, the very institutionalization of the process, ostensibly intended to assure fair, equal and universal participation, also tends to disenfranchise commoners. This can be seen when social democratic states have taken over the administration of projects (social security) and when state communism has marginalized collective initiatives (co-ops). It is no surprise that the success of commoners in developing adequate protections for themselves and their resources through the legal systems of the nation-state has been highly irregular and limited.

Some of the most astute commentators on these problems are autonomous Marxists such as Massimo De Angelis, editor of The Commoner website; George Caffentzis, founder of the Midnight Notes Collective; Silvia Federici, an historian who concentrates on the feminist implications of the commons; Peter Linebaugh, author of The Magna Carta Manifesto and other histories of English commons; and Michael Hardt and Antonio Negri, the political theorists and authors of Multitude, Empire and Commonwealth. Each in different ways has noted that the core problem of unfettered capitalist markets is their tendency to erode the authentic social connections among people (cooperation, custom, tradition) and to liquidate the organic coherence of society and individual commons. Capital breaks commons into their constituent parts — labor, land, capital, money — and treats them as commodities whose value is identical with their price.

This has caused a persistent moral and political crisis because market capitalism cannot answer the questions, What can bind people together beyond the minimal social and civic ties needed to participate in market exchanges? Can a market-based society survive without the commons?

7

THE EMPIRE OF PRIVATE PROPERTY

ASHIP IS ON A CRUISE sailing from port to port. Laid out on the upper deck are deck chairs; there are three times more passengers than chairs on board. During the first few days of the cruise, the deck chairs have a constant change of occupants. As soon as someone gets up, the chair is considered free; no one accepts the idea of placing handkerchiefs or other objects on chairs to indicate that they are being used. This is an expedient arrangement to allocate the limited number of deck chairs.

But once the shift sails into port and a large number of new passengers come on board, this arrangement breaks down. The newcomers, who all know each other, follow a different social convention in using the deck chairs. They draw the chairs toward themselves, and, from then on, lay exclusive and continuous claim to them. As a result, the majority of other passengers cannot use any chairs at all. Scarcity reigns, fights are the order of the day, and most of the guests on board find themselves less comfortable than before.

The “allegory of the deck chairs,” as described here by German sociologist Heinrich Popitz (and brought to my attention by Silke Helfrich), illustrates just how malleable the idea of property really is. While formal laws may declare what property rights people may have in given circumstances, our social norms are at least as important a force — and those are highly adaptable.

The cruise ship passengers had a choice. They could treat the deck chairs as their exclusive individual property even though it meant that many passengers would have to do without — or they could treat the chairs as a shared resource that would more or less meet everyone’s needs. How we define property rights matters because they influence the sorts of personal and social entitlements we may enjoy, affect the kind of social relations we will have and have enormous effects on our sense of well-being (or alienation).

In a much-quoted definition, the eighteenth-century jurist William Blackstone described property rights as “the sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” He implied that property rights belong solely to individuals. But of course property need not be defined this way. As the cruise ship passengers showed, they could choose to exercise temporary individual “use rights” to the same resource instead of exclusive possession. (To be technical, the cruise ship owner is arguably the “owner” of the deck chairs, but the passengers possess them for limited periods of time and in this case are free to set their own rules.)

Different property rights schemes have very different implications for how people’s needs are met (or not met). Such choices influence the nature of the social order and the general attitudes among people. This may be the real point of the allegory of the deck chairs — that property rights are more malleable than most people suspect; that their design can be altered; and that such choices have far-reaching effects on how we relate to each other and how we use resources.

People like to think of property as a fairly self-evident category. By default they tend to see it as a private right to exercise exclusive control over physical objects such as land, cars and smartphones. A landowner typically sees his plot of land as a fixed, individual parcel of inert soil over which he may do whatever he wants. But the conceit that “property” has no social or ecological implications is a fantasy of modern life. In reality, a piece of land is a living part of a living ecosystem. Even as a commodity, its value is dependent upon the character of adjacent pieces of land and the larger ecosystem. A country home with sweeping views of the surrounding countryside alive with chirping birds and friendly neighbors is more valuable than an identical house located next to a factory and a belching smokestack.

In this sense, land is really a fictional commodity, as we have seen. It may be treated as private property, and we maintain the illusion that it is truly self-contained and fungible. But it is not really a bounded unit whose fullest value can be expressed by a price, in isolation from its context. Property is a kind of social fiction — an agreed-upon system for allocating people’s rights to use a resource or exclude access to it. Individual property rights are by no means the only or best way to manage a resource. Land can be well managed as a trust on behalf of the public and future generations. It can be managed through cultural practices and traditions that treat it as a sacred gift of nature, as indigenous peoples often do. Specific and limited rights can be allocated to people in various ways, as farming collectives and conservation easements often do.

Libertarians and free-market champions like to argue that private property rights are a natural if not God-given entitlement. They tend to argue that theirs is the only legitimate system of property law, and that collective property rights are economically impractical, politically oppressive and morally suspect. A legal regime of private property is seen as a universal moral imperative.

This amounts to ideological bluster. In reality, the scope of property rights varies immensely from one culture to another, and even within one culture’s history (not to mention within a culture at a given moment, because there are multiple types of property!). Let’s keep in mind, too, the sly deception that the very term “private property” advances. The term often serves as a euphemism for corporate property, a far larger, more powerful and problematic creature than the personal property associated with individual households.

The Inalienable Rights of Commoners

Property rights do not arise naturally, as the great Digger leader Gerrard Winstanley noted in 1659. They are the result of conquest: “For the power of enclosing land and owning property was brought into the creation by your ancestors by the sword.” A Goethe poem, “Catechism,” makes this clear in a conversation between a teacher and a child. “Bethink, thee, child! Where do those gifts come from? Something from yourself alone cannot come.” The child replies that they came from Papa, and that Papa got them from Grandpapa. But where did Grandpapa get them, the teacher asks. Child: “He took them all.” The simple appropriation of things — perhaps with sophisticated legal doctrines to serve as justifications — is arguably the real origin of many property rights.

To be sure, sometimes people affirmatively choose private property regimes without a full understanding of the larger social ramifications. For example, a generation ago, many native peoples in the state of Alaska embraced the idea of administering their traditional lands and resources through “native corporations” — a shift that led to mismanagement of the resources, corruption, inequality and, in some cases, outright dispossession, as outside investors bought up lands now treated as commodities, not sacred inheritances. Similarly, the estate of Dr. Martin Luther King, Jr., run by his children, has treated his writings, images and audio recordings as commercial properties to be sold to the highest bidders, ostensibly to support the preservation of Dr. King’s legacy. The King estate has even claimed a copyright in the iconic “I Have a Dream” speech and once licensed its use to a telecom company for a television and print ad campaign.

Private property rights serve all sorts of useful purposes, of course, and over the course of history have served to emancipate people from the tyranny of kings, aristocrats and authoritarians. But it is also true that private property law can be a nasty form of oppression and coercion in its own right. Taken to extremes and applied to the exclusion of other moral, social and ecological concerns, it is a singularly useful tool for achieving enclosures.

Many property theorists note that the actual scope of property rights has changed significantly over the centuries to meet new economic, technological and social circumstances. The rise of railroads and the Internet disrupted settled understandings of the scope of property rights and the duties of owners, for example. Newly built railroads often threw off sparks that started fires on adjacent farmland, raising questions about whether railroads should be held liable for the resulting harm to landowners. (US courts ruled that this was an inescapable price of economic progress.) Similarly, as the Internet and digital technologies have made it easier to copy and share books, film and records, they have triggered major political battles over the proper scope of copyright laws.

As such stories suggest, the modern tendency to assert absolute individual property rights is a libertarian fantasy. One person’s property rights invariably end up affecting another person’s property rights; everyone’s freedom cannot be limitless.

Indigenous peoples help us see that Western conceptions of property reflect some deep-seated cultural attitudes toward nature and social relationships. We moderns presume that humans can commoditize water, land, genes and other elements of nature as if they are inert objects that can be isolated from their natural context and owned as chattel.

Private property rights are not necessarily hostile to functioning commons. Indeed, I believe the two can be mutually compatible and even work hand in glove. Examples include land trusts (“private property on the outside, commons on the inside”), digital texts and music (copyrighted by the creator but made legally shareable via fair use rights and Creative Commons licenses) and cooperatives (market enterprises owned and managed by co-op members for their own benefit).

The problem is that dominant market-based forms of law usually privilege individual rights and ignore collective rights and needs. Law does not usually recognize the commons as an institutional form, so it can be difficult to achieve a collective purpose while working within the straitjacket of individual property rights. That’s why protecting commons from enclosures has generally required legal ingenuity, at least within the context of the modern liberal state: the commons exists within a lexical void, rendering it unnamed and inscrutable.

It’s important to see that private property and commons are not simply mirror images of each other. The commons is not simply “non-property,” as some have claimed. “Non-property” amounts to the “free-for-all” or “no-man’s-land” that Garrett Hardin mistakenly regarded as a commons. No: the commons is not simply another variant of property. Its character is quite different.

First, the commons is less about ownership as we usually understand it than about stewardship. Ask indigenous peoples if they “own” the land and they will reply that the land owns them.

To talk about ownership brings to mind the “sole and despotic dominion” over a resource that Blackstone described. A commons implies a more personal engagement with a resource and a longer-term perspective. It also implies a richer ongoing set of ethical and cultural relationships than private property normally entails.

A commons is about the shared management of a resource by many — something that may or may not require formal property law to achieve. In the case of the deck chairs, for example, the “legal system” that governed how people could use them was entirely social. People tacitly negotiated and observed a certain set of rules. There was no formal statute or private contract spelling out how a passenger must behave. The system was all based on a social understanding, an instance of vernacular law, as described above. A coffeehouse or bar may be privately owned, but its social character and tone are largely defined by the customer/commoners, not the owner.

It is entirely natural for people to organize and enforce their own rules informally, or to follow unwritten etiquette as a matter of custom. Most Americans implicitly understand that if you want to buy movie tickets at the box office or hot dogs from a sidewalk vendor, you queue up in line. That’s considered the fair and orderly way to gain access to certain limited resources. “First come, first served” — a rudimentary principle of social protocol for certain everyday circumstances — is particularly effective because it is self-organized and self-enforced.

And what if money and private property rights interfere with the socially negotiated consensus? That’s essentially what happens in some high-volume amusement parks. Disneyland actually sells rich people tickets giving them the right to go to the front of the line. People who can’t afford VIP tickets have to wait. Is that fair? Our intuitive sense of social fairness says No — but it does illustrate what happens when private property rights are asserted as the default entitlement. One reason that private property rights are so highly valued is because they can be bought and sold. Wealthier people naturally tend to favor the broadest, least restrictive private property rights, as these allow them to buy their way to the front of many kinds of lines.

The commons asks us to consider a different paradigm of social and moral order. It asks us to embrace social rules that are compatible with a more cooperative, civic-minded and inclusive set of values, norms and practices. The commons bids us to reject Homo economicus as the default ideal of human behavior. It asks us to entertain the idea that certain rights should be inalienable — that is, not for sale — and to elevate certain social values over private property rights.

This is the challenge faced by so much of the human rights movement — to recognize human dignity, respect, social reciprocity and social justice as elemental human needs that law must protect. Traditionally, human rights have been seen as an abstract, universal norm selectively enforced by the nation-state (depending upon political circumstances). The commons proposes a more local, “on the ground” reconceptualization of human rights: a way for communities to meet basic needs more directly and, quite possibly, more reliably.

John Locke’s Logic of Property Rights

Buried deep within any theories of property are visions of what human beings are. Such theories do not just describe; they subtly prescribe what we should be. Centuries after his death, the theories of the seventeenth-century political philosopher John Locke continue to hold sway over our imaginations. His writings provide a powerful moral logic and legal justification for individual property rights — and for market enclosures.

Locke starts with the idea that human beings are isolated individuals with sweeping rights of personal entitlement to resources based upon the labor they invest in developing them. This is Locke’s “labor theory of value.” It was his attempt to emancipate people from kingly dominion. He wanted to empower a growing class of businessmen to have greater freedom in commercial and civic matters. The idea was to delegitimize the power of monarchs and aristocrats, and justify the power of individuals to exercise absolute dominion over “their” property through the marketplace.

Locke’s theory of property merits our attention because it still sets the framework for how we see and justify property rights. If the labor that we expend in discovering or improving a piece of land entitles us to own it, then land that is “undeveloped” belongs to no one and is therefore free for the taking. This was a convenient idea for eighteenth-century European explorers eager to seize the riches of the New World. By the logic of Locke’s philosophy, such lands should be considered terra nullius, or empty land (sometimes referred to as res nullius, or a nullity), because land becomes valuable only as individuals apply their labor and ingenuity to it (by improving it, making it marketable, etc.).

It is Locke’s conceit that nature is an inert object that can be privately owned without regard for its connections to its existing inhabitants or larger natural ecosystems. Thus even though indigenous peoples and peasants have managed land, water, fisheries, forests and other natural resources as commons from time immemorial — without formal legal titles — Western imperialists have taken comfort in the legal fiction that the land doesn’t belong to anyone — so we can march right in and take it! In this way, Locke’s theory of private property deliberately ignores the prior use rights and customs of indigenous peoples, the rights of future generations and the inherent needs of nature itself. Using Lockean logic, it has become customary to talk about oceans, outer space, biodiversity and the Internet as if they too are resources that belong to no one. The logic of res nullius justifies unchecked private plunder.

Tellingly, Locke added a brief qualification to his theory stating that any private appropriation is limited to “at least where there is enough, and as good, left in common for others.” He raises an awkward issue that is too obvious to ignore: the exercise of private property rights may encroach on and even destroy resources that belong to everyone. In other words, there is an unresolved tension between private property and the commons.

This “Lockean proviso,” as it is often called, is mostly treated as a symbolic, throwaway gesture, however. Philosophers and legal scholars may invoke it to show their intellectual rigor, but in practice politicians and the investor class don’t care a whit about honoring it. Transnational bottling companies are still sucking groundwater supplies dry without leaving enough, and as good, in common. Agriculture–biotechnology (ag-biotech) companies are still marketing proprietary genetically modified crops that destroy sustainable seed-sharing. Industrial trawlers are still overexploiting ocean fisheries to the point of exhaustion, dispossessing small coastal fishing communities. Whatever one makes of his proviso, Locke’s singular intent was to justify private property, not assure the longevity of the commons.

In this tradition, private property laws today continue to ignore or criminalize commoners who use resources in a collective fashion. Nonmarket subsistence commoning is not seen as “adding value” in a Lockean sense; by this logic no one is entitled to property rights protection. This is how the “freedom” of private property is used to dispossess and violate commoners, as seen in the international land grab of customary lands in Africa.

It is important to understand the Lockean analysis because it has become the central moral justification of modern capitalism and its enclosures. As a number of commons scholars, such as Wolfgang Hoeschele and Roberto Verzola, have noted, capitalism is about the engineering of scarcity. To maximize profits and market share, businesses deliberately create scarcity by finding novel ways to limit supplies or access to resources. Copyright and patent law, for example, take resources that are cheap and easy to reproduce — information and knowledge — and deliberately give limited-term monopolies to authors and inventors whose creativity is presumed to be wholly novel and original. The ag–biotech industry likes to create sterile seeds so that farmers have to keep buying them year after year — converting natural bounty into artificial scarcity.

By contrast, commoners deliberately strive to engineer a system of abundance. By “abundance,” Hoeschele and Verzola do not mean unlimited supplies for unlimited human appetites — the premise of market economics — but rather, plentiful, renewable supplies for what we really need. A prime example is permaculture, which emulates ecosystems by growing self-regenerating crops that help each other flourish and produce little if any waste.

Rousseau famously wrote, “The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. . . . Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.” The Lockean proviso shrewdly nods at this undeniable truth, but the Lockean theory of property rights in effect overrides it. The proviso virtually guarantees that in real life, beyond the reach of windy chambers of philosophical debate, there will not be enough, and as good, left in common for others.

The Measure of Wealth

Once a resource is legally recognized as property, the door swings open for markets to set its price. This is considered a great advance, because markets consider price to be the supreme indicator of value and prices as the fairest way to identify the true value of things. People are said to maximize their individual, rational self-interests through the price system and market exchange; the collective good then naturally manifests itself through the Invisible Hand. Markets are presumed to be more efficient and fair in allocating wealth than governments — so the best strategy for managing natural resources, according to the economic orthodoxy, is to privatize and marketize them.

The truth is that this system of market-based governance is a disaster in the real world. The price system typically fails to take account of all sorts of value that are external to the marketplace. For example, price cannot easily represent types of value that are subtle, qualitative, long-term and complicated — precisely the attributes of nature. What’s the market value of the atmosphere? Of a clean river? Of babies born without pollution-induced birth defects? Markets have trouble answering such questions because there is no meaningful market price for such things.

Price only measures exchange value, after all; it doesn’t really measure use value. And so the grand narrative of conventional economics celebrates Gross Domestic Product as the height of human progress by totaling the value of all market activity. It doesn’t really care if that activity is beneficial to society or not — in fact, it doesn’t even ask that question! Instead it just measures if money has changed hands, which is its moronic definition of wealth creation. By this reckoning, the Gulf of Mexico oil spill and the Fukushima nuclear disaster should be considered good, because they ended up stimulating economic activity.

Ida Kubiszewski, Robert Costanza and a team of other economists vividly demonstrated the shortcomings of GDP in a 2013 study of the net social benefits of economic activity in 17 countries, representing 53 percent of the world’s population. Using a new index, the Genuine Progress Indicator or GPI, they explicitly took into account dozens of factors that GDP ignores, such as negative activities like crime, pollution and social problems as well as positive nonmarket activities such as volunteering and household work. Their conclusion? The economists found that the costs of economic growth globally have outweighed the benefits since 1978! This year was also the point at which the global ecological footprint of human activity exceeded global biocapacity. And despite a three-fold global increase in GDP since 1950, life satisfaction in nearly all 17 countries surveyed had not improved significantly since 1975.

John Ruskin called the unmeasured, unintended harms caused by markets “illth.” The problem with the price system, as yoked to private property, is that it generates as much illth as wealth — but hardly any of this illth gets counted. It’s off the books. A company’s bottom line and a nation’s GDP reflect only the monetized wealth generated by markets; they deliberately omit the nonmarket illth. This damage is borne mostly by commons as markets take what they can from nature, for free, without acknowledging its actual value (because nature is seen as res nullius). Once profits have been taken and privatized, the market then dumps its wastes and disruptions back onto the commons, leaving commoners and governments to mop up the mess.

As mentioned earlier, this might be called the “tragedy of the market” — the unmetered, hidden subsidies and costly “externalities” that markets, in the service of private property, impose upon the commons. This should not be surprising in a society that looks to price as the highest, most reliable metric of value. If a resource does not have a price or property rights, it naturally will be regarded as “not valuable” or “free for the taking.”

No wonder normal market activity frequently rides roughshod over ecological values; nature’s wealth does not come with price tags. Prices for fish or timber will generally not reflect the actual value of lower-order organisms and natural systems, for example, even though the invisible, non-marketable dimensions of nature are essential to growing fish and timber. Market externalities are easy to ignore, too, because they tend to be diffused among many people and across large geographic areas. No individual or locality can take effective action against air pollution, say, or against pesticide residues in food. Externalities also tend to lurk on the frontiers of scientific knowledge (Does this vaccine cause autism? Do cell phones cause brain cancer?), which means that identifying and confirming negative externalities can be scientifically difficult. And industries actively resist the scientific verification of harmful externalities, lest unwelcome news triggers angry political responses and costly reparations.

For all these reasons, a system of stewardship, not ownership, is more likely to take conscientious precautions to prevent harms. In a commons, the structural pressures to earn money are reduced and the incentives to take into account subtle, long-term factors are greater. As a social institution, a commons is also more likely to care about the long-term sustainability of a resource than a market, because the very identities and cultures of commoners are wrapped up in the management of the resource. Markets tend to care primarily about financial returns, and see everything else (working conditions, product safety, ecological concerns, etc.) as secondary. The basic problem is that the signals communicated by prices are too crude and impersonal to alter management practices.

Commons as a Form of Governance

The unresolved question is how to devise adequate systems to protect the commons from market encroachments. What steps can commoners take to protect the things they love? This is an urgent issue so long as private property and price are the default definitions of value in public policy, because as we have seen, the price system, however valuable in certain contexts, overrides most ecological, social and moral values.

How can commoners assure protection for human dignity and respect, over and above that enabled by private property rights? How can they secure the right to engage in nonmarket social exchange — gift economies, informal collaborations, new forms of collective action — whose value is barely recognized by the modern liberal polity? How can commoners uphold social justice and human rights as inalienable values that may have to trump corporate property rights?

These very large questions lie at the heart of the challenge facing the contemporary commons movement. I cannot answer them all in this book, but I do want to point to ways that might help our search for answers. Understanding the role of property law is an important part of the equation. But it is important to understand that securing the commons is about far more than property rights and formal legal rules. As we will see in the next chapter, social governance — values, practices, norms, culture — lies at the heart of the commons.

8

THE RISE OF THE DIGITAL COMMONS

IF CONVENTIONAL INSTITUTIONS of power remain stubbornly resistant to change and tethered to conventional property rights, cyberspace has been a very different story. Since it became widely available in 1994, the World Wide Web has been an exciting arena for innovators, idealists and iconoclasts precisely because there are no legacy institutions to displace. Anyone is free to start something new. No need to ask for permission or pay expensive fees. To be sure, copyright law still applies, but as digital commoners have learned, it is the social practice as much as law itself that tends to call the tune.

And so it has come to pass that the Web, and all other networked digital technologies generally, have become preferred spaces for experimentation. Perhaps the biggest surprise has been the unparalleled capacity of the Internet to foster social cooperation and sharing. While tech and media corporations have struggled to invent new online markets, ordinary Internet users have realized that it is fairly easy to create their own digital commons. Build a website; start a new online community. As if by spontaneous combustion, entirely new species of creative production have arisen on the Internet that are neither market-based nor state-controlled.

The first, most astonishing set of revelations about online commoning came with the emergence of free software, also known as open source software. Open source programs include Perl (a programming language), Sendmail (a mail program), Apache (the most used server program on the Internet, which powers critical “backend” functions) and Linux (a major computer operating system that rivals Windows). The surprising power of distributed networks was quickly followed by the rise of the blogosphere, social networking and Wikipedia, a living, pulsating Web encyclopedia that has become a digital republic unto itself, with more than seventy thousand volunteers working in 285 languages.

There is also the flourishing genre of open-access scholarly publishing, which has enabled academic disciplines and universities to bypass parasitic commercial publishers and reclaim control over their research literature. Working along the same lines, the open educational resources (OER) movement has pioneered the cooperative development of open textbooks, curricula and course materials.

Many of these commons-based innovations have been possible only because of Creative Commons licenses. These are a suite of six basic licenses and other legal instruments that let copyright holders invert copyright law’s default rules of strict private control and instead authorize legal sharing. Creators can build commons of shareable content by asserting defensible legal limits on the private appropriation or commercialization of their content. Over time this has produced an unprecedented global sharing economy of software code, research studies, photo archives, blog posts and other creative works.

To be sure, many people share lots of content on social network platforms like Facebook, YouTube and Twitter without the use of Creative Commons licenses. Such sites are governed by corporate “terms of service” that users accept upon registering; they resemble commons in many respects but with a significant difference: corporate management and investors ultimately call the shots. That’s why sharing on for-profit websites has been compared to “digital sharecropping” on corporate plantations. A user’s body of stored content and links is vulnerable to the whims of shifting corporate policies and investor pressures. A shift in corporate revenue models may mean that you forever lose your blog or photo collection, or are suddenly bombarded with pop-up ads. Corporate platform owners also tend to sell users’ mountains of personal information and Web habits to advertisers.

Such are the perils of open platforms governed as corporate fiefdoms and not as user-accountable commons. An open platform may enable collaboration but not necessarily open sharing, user participation or long-term, user-accountable governance. Money-minded corporate executives call the shots.

The Commons Sector, as I like to call it, is far more developed on the Internet than in any other sphere, perhaps for the very reason that it has become such a powerful and independent economic and cultural force there. Prior to the rise of the Web, commons were usually regarded as little more than a curiosity of medieval history or a backwater of social science research. “What we are seeing now,” wrote Harvard law professor Yochai Benkler in his landmark 2006 book The Wealth of Networks, “is the emergence of more effective collective action practices that are decentralized but do not rely on either the price system or a managerial structure for coordination.” Benkler’s preferred term is “commons-based peer production,” by which he means systems that are collaborative, nonproprietary and based on “sharing resources and outputs among widely distributed, loosely connected individuals who cooperate with each other.”

Much of the political and social struggle over the terms of copyright law (as described in Chapter 5) can be traced to the disruptions caused by open Web platforms accessible to anyone. The Internet provides an infrastructure that enables innovation and sharing to occur in ways that are simply impossible or too expensive on conventional mass media. That’s why its rise has been so disruptive. The social logic of online cooperation (cheap and easy social interaction among distributed users) can trump the economic logic of conventional markets (which require large amounts of capital, centralized corporate management and professional control). Online commons require little more than a shared software platform, personal computers and Internet access. Unorganized individuals can easily come together to create and curate their own bodies of “user-generated content,” challenging the lowest-common-denominator economics and centralized control of mass-media TV shows, films, books and magazines. The result: a profound global cultural revolution whose full disruptive potential is still ahead.

It All Began With Free Software

The first significant type of digital commons was free software. This software is not necessarily free in the sense of “no price,” but free in the sense that the code is open and accessible. Anyone can freely examine, tinker with, improve and share the software without violating the creators’ copyrights.

In the early 1980s, when software development for personal computers was still a budding community art, the legendary MIT hacker Richard Stallman was one of the first to recognize that proprietary software could significantly limit an individual’s freedom to access and reuse software, and thus to innovate. Stallman was disturbed to learn that companies were using copyright law to prohibit others from fixing nasty bugs, improving the code or sharing it with friends and colleagues. Software — once developed through the open, collegial social process of a hacker community* — was becoming a highly lucrative and proprietary product. A shared community resource was being converted into private property.

This enraged Stallman because it meant that a basic human freedom — creativity — was being stifled. He was also concerned that the market ethic and copyright law were stifling the hacker ethic of sharing and mutual support. His solution was an ingenious legal innovation known as the General Public License or GPL, first released in 1989.

The GPL, sometimes referred to as “copyleft” (with a reverse “c” symbol inside of a circle), is widely celebrated today as a landmark “hack” around copyright law. Instead of locking the code up as private property, it ensures everyone the freedom to copy, modify or distribute a software program as they see fit, including to sell it at a price. (Hence the misleading term “free software.” Stallman tried to clarify the confusion by famously saying that the software should be “free as in freedom, not free as in free beer.” Europeans use the term “libre,” which does not have the same double meanings as “free.”)

A copyright holder who affixes the GPL to his or her software program is legally committing that code to the commons. The license accomplishes this goal by insisting upon one simple legal requirement — that any derivative work, such as a modified software program, must also be licensed under the GPL, so that it too is shareable. Any further derivations of the secondary work, in turn, must also be licensed under the GPL, and so on indefinitely. In this way the GPL cleverly makes software sharing viral and legally protected. To make things even more secure, no user can modify the terms of the license.

The genius of the GPL is that it ensures that a commons of GPLed software code will forever remain a commons. The code created by a given group of commoners will stay within the commons and can never be privatized. Future users can sell the code (there are a number of commercial vendors of the open source Linux program, for example), but the point of the GPL is that no one can legally withhold access to the code or prevent its reuse. This made hackers willing to freely contribute their talents to building a software commons because they knew that the fruits of their labors would remain forever accessible.

In the 1980s, Stallman’s obsession with “software freedom” seemed like a quixotic mission. Stallman himself — shaggy, sometimes barefoot, imperious — looked like an Old Testament prophet. As the World Wide Web took root in the mid-1990s and Linus Torvalds created the kernel of an amateur computer operating system, the GPL suddenly became historically significant. Torvalds licensed his program, Linux, under the GPL. When combined with other bodies of code, including many that Stallman had written, a commons of code for a complete computer operating system became possible. Linux (GNU Linux, to Stallman) went on to become one of the most powerful and respected software programs in history.

Free software, as licensed under the GPL, soon gave birth to a legally similar body of code known as open source software. The chief difference between “free” and open source software is that the backers of the latter try to steer clear of the word “free,” which not only is confusing (does it mean “no price” or “free to use”?) but connotes low quality. Open source advocates wanted to make community-made software more attractive and credible to large corporate and institutional users. They were less concerned with the political dimensions of Stallman’s free software movement than they were eager to highlight the practical utility of shareable software.

Open source software has gone on to become a powerhouse of the tech economy despite (or thanks to?) its no-cost access and use. Large companies like IBM, Oracle and Hewlett-Packard have built lucrative businesses by providing technical support to and customized extensions of open source programs. Linux is now used on millions of Web servers, and world-class computer users and corporations around the world (NASA, Pixar, IBM) rely on it for mission-critical tasks.

In the late 1990s, the GPL’s importance was not lost on Harvard law professor Lawrence Lessig, who was keenly aware that copyright law was also stifling creativity. Lessig convened a small team of law professors, computer scientists, artists, authors and activists to invent a series of six standardized public licenses that could be placed as “tags” on copyrighted content. A copyright holder could use one of these “CC” (Creative Commons) licenses to indicate that her work is available for sharing and reuse under specified terms.

For example, a website’s content could be tagged as freely shareable but not entitled to commercial usage without permission (the “NonCommercial” license); or it could be tagged freely shareable but with a prohibition against derivative works such as photo-cropping or text translations unless permissions were obtained (the “No Derivatives” license). One CC license, the “ShareAlike license,” emulates the GPL by requiring that any derivative work also be shareable under the same license. This means that the work and all of its “progeny” will forever be accessible. This book is licensed under a Creative Commons BY-NC-SA license (Attribution-NonCommercial-ShareAlike) because I want to authorize copying of it so long as credit is given to me as the author (BY) and no commercial reuses are made without my permission (NC). Any derivative uses of this book, including translations, new printings and excerpts, must also be legally shareable (SA).

All works carrying a CC license have to credit the original author (the “Attribution License”), but beyond that, copyright holders themselves may specify how their work may or may not be used by others (without abridging “fair use” rights under copyright law, which guarantee certain types of sharing for noncommercial purposes).

Both the GPL and the CC licenses have been hugely significant in enabling all sorts of digital commons to take root and flourish. They constitute a kind of legal infrastructure that protects the commons from enclosure because works are made permanently shareable. The licenses have also inspired a range of other legal innovations for making other bodies of content legally shareable, such as databases and physical specimens used in laboratories.

In certain fields, especially education, academic research and government services, the CC licenses have helped advance the presumption that works from public institutions should be freely available. All sorts of museums, archives, government agencies and educational institutions around the world now use CC licenses to make sure that their Web documents and digital files are freely accessible to anyone.

The Open Access Revolution

At one time, commercial publishers offered the best way for scientists to move from a system of private correspondence about their discoveries to a system of widely distributed, peer-reviewed journals. But with the arrival of the World Wide Web in 1994, it became far cheaper and easier to reach a global readership instantly. Thus began a long struggle — still underway — to shift scholarly publishing toward a more accessible genre of publishing: the open-access (or OA) journal.

While commercial journal publishers have provided certain valuable services like production and distribution, they have also become parasites on academic knowledge commons by insisting on owning the copyrights to research articles. This has enabled publishers to gain control over knowledge that was, in fact, funded by a long chain of others, including governments, foundations and universities. These very same commercial journals have often used their copyright control — and the prestige associated with certain journal titles — to charge university libraries exorbitant subscription fees. Between 1986 and 2004, journal publishers raised subscription rates to American universities by 273 percent.

It took universities years to heed calls for reform and mount a concerted counterattack. In 2012, Harvard University finally declared that it had had enough. It publicly advised its faculty to avoid publishing in journals that required paid access. The move helped persuade many research libraries and colleges across the US and the world that it was time to begin a more aggressive transition to OA publishing models. Harvard’s motivation was largely financial; its annual budget for journals was approaching $3.75 million. It was paying some journal publishers as much as forty thousand dollars per year. The average US university library was spending about 65 percent of its budget on research journals, with more than half of that sum going to three major publishers: Elsevier, Springer and Wiley.

The OA scholarly publishing movement first began to organize itself in 2001 with the goal of making academic research free and openly available to anyone in perpetuity. In retrospect, this seems like an unassailable initiative, considering that taxpayers were funding billions of dollars in research. No matter: the OA movement has had to struggle for years to overcome opposition from publishers and uninformed politicians as well as the sheer inertia of academic communities. It has had to develop new revenue models and administrative structures for scholarly journals, and disrupt some long-standing traditions within academic publishing. For example, because many tenure and promotion decisions are based on the quality and prestige of the academic journals in which faculty publish their work, junior faculty members are often reluctant to publish in lesser-known OA journals rather than in high-profile periodicals like Nature and Science. The OA movement has been impeded, too, by fierce resistance from the large academic publishers, which have balked at efforts by national governments to require that all taxpayer-funded research be published under OA protocols.

Notwithstanding such resistance and misleading excuses, by late 2013 there were nearly ten thousand open-access scholarly journals being published. Like the GPL and CC licenses, OA journals are making knowledge more freely available to everyone without the contrived scarcity that publishers like to impose through copyright restrictions and “digital rights management.”

I called my book about the rise of free software and free culture Viral Spiral because the evolution of one commons-based innovation typically inspires many others, and then others. The GPL led to the CC licenses, which then gave rise to OA publishing. From there, in 2009 and after, a wide array of open educational resources, or OER, emerged as the next turn of the viral spiral. All levels of education and learning communities — not just scholarly publishing — got wise to the fact that proprietary control of knowledge is antithetical to their core values: to learn and grow through participation and sharing. Academia is a commons.

Community colleges were dismayed to learn that many students were dropping out or delaying their educations because they could not afford their textbooks. It is not unusual for textbook publishers to bring out new editions every two or three years simply to make the existing used books “obsolete” and promote new textbook purchases. Some farsighted OA educators have responded by forming the Community College Consortium for Open Educational Resources, which helps identify and publicize open textbooks. Such books are CC-licensed and available for the cost of a print-on-demand copy. This has reduced students’ expenses by hundreds of dollars apiece.

The Massachusetts Institute of Technology (MIT) pioneered open educational resources in 2001 when it produced the first major body of curricular materials — syllabi, readings, videos, datasets — for free online use. MIT’s innovation has profoundly influenced the teaching of physics and other scientific fields in China as well as many small countries with isolated rural populations. It has also spawned the OpenCourseWare Consortium, which now has more than 120 member universities and educational institutions worldwide.

The viral spiral that started with free software and the CC licenses continues to expand. The very term “open source” has become a widely used cultural meme to celebrate production that is open, participatory, transparent and accountable. Open source principles now animate a robust “open design” movement that invites anyone to help design clothing, furniture, computer components, even automobiles. A group called Arduino now designs and produces scores of printed-circuit boards and computer components, which enable cheap and easy customization by techies. An Open Prosthetics Project invites anyone to contribute to the design of prosthetic limbs — or to the specifications for limbs that ought to be designed even if the designer doesn’t know how to do it herself. Among the designs: prosthetic limbs for rock climbers and a prosthetic arm for fishing.

One of the more fascinating open-network projects is Wikispeed, a Seattle-based automotive prototyping and manufacturing start-up project that has collaborators in fifteen countries. Its goal is to use open source principles to design and build a modular, lightweight race car that can travel a hundred miles on a gallon of gasoline.

Community networks like Open Source Ecology are now building shareable, low-cost equipment for off-the-grid “resilient communities.” One of its prime projects is the LifeTrac, a low-cost, multipurpose open source tractor whose components are modular, inexpensive and easy to build and maintain. In other words, not complex, expensive or proprietary. Open source design and manufacturing of physical things has reached a large enough scale that the community of innovators have formed their own association, the Open Hardware and Design Alliance.

Digital commons now pop up in the most unlikely places. A self-organized group called Crisis Commons is a network of tech volunteers who provide humanitarian aid in response to natural disasters. Following the Haiti earthquake of 2009, thousands of volunteers associated with Crisis Commons swiftly built Web-based translation tools, people finders and maps showing routes to empty hospital beds.

There is also a range of what I call “eco-digital commons,” in which Internet technologies are being used to help monitor and manage the environment. Some websites now invite individuals to use mobile phones, motion sensors, GPS tracking and other electronic systems to monitor local sightings of birds, butterflies and invasive species, or to monitor pollution levels in a local body of water. These “participatory sensing” projects aggregate highly dispersed bodies of data and, in so doing, improve the quality of government policymaking and enforcement.

The City of Linz, Austria, population 190,000, has embarked upon one of the most ambitious digital commons plans for an urban region. It plans to turn the greater Linz region into an open information commons. The City already provides free wifi hotspots and email accounts to every citizen and Web hosting for non-commercial content. Now it is trying to get the entire region to embrace open source software, Creative Commons licenses, open data platforms, open street maps and open educational resources. City officials believe that a regional information commons will stimulate innovators to produce locally useful information tools while encouraging greater civic engagement and more robust economic development.

The future is likely to see a continued proliferation of digital commons, if only because of their efficiencies, usefulness and social appeal. The commercial world understands this and is positioning itself to exploit digital commons, or at least to host open platforms. A telling bellwether of this shift can be seen in the business world’s burgeoning interest in the “sharing economy” fuelled by new Web-assisted business models for car-sharing, overnight apartment rentals and other forms of “collaborative consumption.” (Whether these businesses will actually function as commons is another matter entirely.)

Tech companies realize that open networks naturally foster cooperation and sharing — yet their conventional business models are based on “monetizing” communities, not necessarily on serving their long-term or nonmarket interests. Thus, while Facebook and Google provide many useful services “for free,” they are also aggressively data-mining people’s personal information and selling highly personalized ads to markets that want to invade our minds as we browse the Web. Through its book digitization project, Google is also establishing itself as a privileged, proprietary gatekeeper for access to public-domain materials, to the detriment of competitors and the public. As such examples show, corporations only support “sharing” if they can make money from it. That’s not commoning.

Still, the people who participate in online sharing communities are part of an important cultural vanguard. They are bringing their social practices and expectations — and their distaste for excessive private property rights — to other areas of their lives. It is one reason why the Swedish-based Pirate Party has spawned dozens of other national Pirate Parties that are fielding candidates for political office. And why a major international copyright treaty, the Anti-Counterfeiting Trade Agreement, was defeated in 2012 by a coalition of free culture advocates, free software hackers and open-platform businesses.

Now that so many people have tasted the freedom, innovation and accountability of open networks and digital commons, there is no going back to the command-and-control business models of the twentieth century. Among the “born digital” generation, many conventional ideas about private property rights — the exclusivity of control, commercial motives and indifference to the common good over the long term — seem decidedly old-fashioned, if not antisocial. It is too soon to know what sweeping legal or political changes the ethic of commoning might translate into, but if one is to judge from the Internet-assisted movements of the past several years — the Arab Spring; the Spanish indignados; the Occupy movement; the landmark 2012 defeat of ACTA, the secretly crafted anti-piracy treaty — it is clearly infectious. In the next chapter, I want to show how varied and robust the commons paradigm truly is, transcending even these developments in cyberspace.

* Contrary to press accounts that falsely conflate hackers with criminals, the term has traditionally referred to programmers who are ingenious in solving difficult technical challenges with a playful, community-minded ethic.

9

MANY GALAXIES OF COMMONS

WHILE DIGITAL COMMONS are fresh and contemporary, at least to us in the West, a broader perspective is in order. Indigenous peoples were there first. They refined the art of commoning long before hackers began to share software code and social scientists developed complicated theories about the commons. And let’s not forget the long history of medieval English and European commons; of subsistence commons in rural settings around the world; and of urban spaces and community projects managed as commons. Human societies have produced a glorious cavalcade of commons throughout the ages.

In this chapter, I’d like to explore some salient classes of commons more deeply. The point is to help us develop a richer mental map of commons “in the field,” and not just as an abstraction.

First, a methodological warning: some people seem to think there is a natural, logical classification scheme for commons. I seriously doubt this — or at least, I believe that any classification system will necessarily reflect the analyst’s cultural biases. An African would have a very different mental map of the commons than a European, and both would have different perspectives than an American. Classification schemes tend to impose an overly tidy, regularized and intellectual understanding of commoning, which I believe is ultimately experiential and historically situated.

Rather than strive to over-theorize, therefore, I think it’s better to simply recognize general clusters of commons that represent certain general characteristics. A commons may arise whenever a group of people decides that it wishes to manage a resource in a collective manner, with a special regard for equitable access, use and long-term stewardship. Still, it helps to have a crude mental map to orient us to the galaxies of commons that do exist. So let’s begin with a quick survey of subsistence and indigenous peoples’ commons, social and civic commons, state trustee commons and businesses embedded in commons. (We already surveyed prominent digital commons in Chapter 8.)

Subsistence Commons

Traditional commons — the familiar commons of history and the ones most studied by contemporary academics — usually revolve around natural resources: water, forests, fisheries, arable land, wild game. These resources are gifts of the Earth that must be actively managed for the survival and well-being of all.

The recurring question is How should access and use of shared resources be managed? How can free riding and abuse of a commons be prevented? What governance systems work best? Specific communities and bioregions have explored such questions through trial and error and active stewardship over long periods of time. That, after all, is the point — to develop a socio-ecological system that blends social customs and practices with the natural dynamics of a river, forest or farmland. It is not surprising that certain general patterns of commoning have emerged.

In New Mexico, native Hispanic-Americans have managed community-based waterways known as acequias since the 1600s. This “biocultural” institution has shown how, even in a very dry region such as the American Southwest, a commons can align community usage of water with ecological limits. Remarkably, acequias have the sanction of New Mexico state law. But it is the community itself that manages and protects the water supply. All acequia members are expected to participate in maintenance responsibilities such as the annual cleaning of the water ditches. While nearby towns in New Mexico are plagued by unchecked suburban development and voracious demands for water, the acequias have succeeded in allocating their water allotments to meet people’s needs fairly while conserving soil and water, recharging aquifers and preserving wildlife and plant habitat.

Subsistence commons strike the modern mind as backward and premodern. But in many respects, that is the very point — to reach back to pre-market social norms that once placed vital limits on market activity. To commoners, maximizing market value is not the supreme purpose; community needs and ecological stability take precedence. Subsistence commoners take only what they need while protecting the resource. This is a singular achievement in modern times: to develop an ethic of sufficiency.

Most economists have little interest in subsistence commons, perhaps because they see them as small, isolated and disconnected from markets. How boring! And because the value of subsistence commons cannot be expressed in numbers, they don’t show up in GDP statistics. The conventional economic framework has no way of comprehending the importance of community self-determination, ecological resilience, social equity or cultural connection to a place. Yet subsistence commons, operating outside of market system without private property rights or money, are vitally important to an estimated two billion people worldwide, according to the International Association for the Study of the Commons.

It’s worth emphasizing that subsistence commons vary a great deal and are not without their problems. Many need better management; others are poorly managed and could be improved; still others struggle in unsupportive political environments. Yet they remain an important means of everyday sustenance and dignity that strive to respect ecological limits. That’s an impressive accomplishment that markets and states have trouble emulating.

Indigenous Peoples’ Commons

A decade ago, Peruvians created the Potato Park as a “landscape conservation commons” so that indigenous tribes of the Andes could have full stewardship rights over a tremendous diversity of native potato species and varieties. This was a major achievement because transnational ag-biotech firms were eager to acquire patents on some of the nine hundred genetically valuable potato varieties that Andean tribes had developed over thousands of years.

Officially known as an Indigenous Biocultural Heritage Area, the Potato Park authorizes seven thousand villagers from six indigenous communities (Amaru, Chawaytire, Cuyo Grande, Pampallaqta, Paru-Paru and Sacaca) to jointly manage their communal land for their collective benefit. The point is to let these peoples legally protect their livelihoods and ways of life from “development” (especially international patents and trade) while conserving the agro-ecological landscape. On the one hand, the Potato Park is quite unusual because its alignment of community values and practices with the regional ecosystem has been formally and legally recognized. On the other hand, such commons-based stewardship is typical of indigenous peoples’ commons.

Indigenous peoples’ commons vary a great deal, of course. The Aboriginal Australians have long fought to protect their sacred places, cultural knowledge and striking artistic designs from outside appropriation, especially by commercial interests. India and Southeast Asia are home to many “traditional knowledge commons” (or “TK commons”) that protect and use highly specialized types of knowledge about local plants and medicinal treatments. Some transnational companies are attempting to appropriate this knowledge in order to patent it for genetically engineered crops or drugs — a type of enclosure often known as “biopiracy.” In India, there have been several notorious cases in which transnational companies tried to patent neem seeds and turmeric. Madagascar’s rich biodiversity has also been a prime target of companies in search of patentable genetic knowledge. Such commercialization poses a serious threat to TK commons because people may be reluctant to contribute to a commons if they fear that their knowledge could be taken private and sold for money. “One man’s gift must not be another man’s capital,” as the anthropologist Marcel Mauss warned.

Corporate enclosures of TK commons have prompted some innovative responses. Commoners in India have compiled a Traditional Knowledge Digital Library, a database of public-domain medical knowledge, to help challenge patent applications that would privatize the knowledge. A South African lawyers’ group called Natural Justice has developed a legal instrument known as “biocultural community protocols” (BCP) that is a novel attempt to protect cultural traditions and practices from appropriation by outsiders. BCPs set forth the specific values and customary procedures that a community has chosen to manage its natural resources. The protocols also spell out the procedural and substantive rights of commoners to participate in decisionmaking, and to demand free, prior and informed consent to specific public policies that might be imposed on them. The BCPs also ensure that people can monitor and evaluate the impact of projects in their community.

It is difficult to overgeneralize about indigenous peoples’ commons because they embody so many different types of landscapes, tribal cosmologies and cultural practices. Still, legal scholar Rebecca Tsosie has noted striking similarities among indigenous systems of knowing and interacting with the natural world. Indigenous peoples’ commons tend to reflect “a perception of the earth as an animate being; a belief that humans are in a kinship system with other living things; a perception of the land as essential to the identity of the people; and a concept of reciprocity and balance that extends to relationships among humans, including future generations, and between humans and the natural world.”

Indigenous peoples have developed remarkably stable socio-ecological models precisely because they focus on long-term social relationships, not irregular market transactions. Westerners often dismiss indigenous peoples’ commons out of hand because they are not based on strict individualism, private property rights and market notions of “value” (i.e., a price for everything). As N. Bruce Duthu, a leading scholar of Native American law, has written, “The idea of ‘property’ in the Western tradition. . .implies an orientation toward the Market use of resources without special regard for the long-term ecological consequences or the social meanings of nature to people; the price system presumes a basic equivalence among like-priced elements of nature. Societies that have a more direct, subsistence relationship to nature may therefore find property- and market-based sensibilities alien and even offensive.”

Not surprisingly, the industrialized nations of the world scoff at Bolivia’s proposal that the United Nations recognize “nature’s rights,” an idea that lies at the heart of so many indigenous peoples’ commons. Honoring “Mother Earth” — as the

Pachamama movement in Latin America advocates — is seen by the industrialized world as ridiculous, impractical nonsense, but this prejudice simply illustrates the West’s alarming cultural myopia. It cannot even imagine the commons.

Social and Civic Commons

Human beings’ natural propensity to cooperate is a powerful source of innovation that has given rise to a rich variety of social and civic commons. A great example is the international “time banking” movement. Time banking (sometimes known in the US as “time dollars”) is a system that lets people earn “time credits” for providing services to others in their communities. Examples of services include mowing lawns, babysitting, providing household help or driving someone to a medical appointment. People can then spend their time credits for other services provided by members of the community. Often administered by churches and non-profits, time banking has proven to be a boon to many elderly and poor people who have more time than money. They can turn their time into a “currency” (time credits) that lets them meet basic needs that cannot be met through markets. Interestingly, many participants regard time banking more as a system for making social connections than as a surrogate market.

Blood and organ donation systems are another exemplary social commons. While body parts and plasma are sometimes treated as commodities, voluntary systems persist because we like to regard donations of intimate bodily substances (tissue, organs, blood, body parts) as a social gift. Blood banks have often been likened to a “gift economy” in which people give with no expectation of direct personal benefit, but out of a sense of social duty or as a tribute to loved ones. Some famous studies show that gift economies for blood and organs are more likely to avoid the ethical conflicts that can plague markets and, moreover, elicit higher-quality blood and organs. The people most likely to sell their blood or organs are alcoholics, drug users and those in poor health.

As discussed in Chapter 5, academic disciplines are a significant, highly productive social commons. Researchers do not generally use cash or legal contracts to exchange knowledge; their universities and disciplines amount to hosting infrastructures for gift economies. Scholarship and instruction are considered “contributions” to the field, not “products.” A discipline advances through a community ethic of sharing, open debate and peer review, not cash purchases among individuals.

Because it nurtures inner commitments and peer support, a social commons helps avoid the ethical problems that tend to be associated with markets. Markets usually do not nourish elevated ethics because they typically focus on transactions, not long-standing relationships. The focus is on the “cash nexus,” and relationships tend to be impersonal, fixed-term (or onetime) in nature and based on a strict “even-steven” exchange of value. The boundaries separating individuals and their interests are kept quite clear.

In gift economies, however, as Lewis Hyde noted in his classic book The Gift, social boundaries are blurred or even eradicated through gift exchange. There is no self-serving calculation of whether the value given and received is strictly equal; the point is to establish ongoing social relationships and sympathies. The subtitle of Hyde’s book — Imagination and the Erotic Life of Property — captures this idea nicely: gifts bring people closer together, especially when the exchange is indirect and staggered over time. So long as gifts continue to circulate among people, without a clear reckoning of what one is “owed,” the social commons thrives.

Social commons are proliferating, especially on the Internet, because they often radically lower the transaction costs that markets require, such as the costs of advertising, legal contracts, paid employees and so forth. It is often cheaper, easier and more reliable to coordinate an activity through a trusted community. This is surely one reason that “collaborative consumption” is growing as a new hybrid sector of the market economy; artfully designed Web systems let people coordinate the (cash-based) “sharing” of cars, commuting rides, bikes and tools.

One of the more remarkable Internet-based gift economies is CouchSurfing, a free, informal system of overnight hospitality used by travelers (and the people who host them) in more than ninety-seven thousand cities and towns around the world. Cash exchange between host and visitor is explicitly prohibited. CouchSurfing is a vast Wed-mediated gift economy that helps more than five million strangers a year give and receive hospitality in each other’s homes, often forging new friendships in the process.

Social commons are seemingly as spontaneous and diverse as life itself. They include community gardens and town festivals, civic associations and amateur sports leagues, ecovillages and co-housing and community-supported agriculture.

Cities are an especially fertile environment for social commons because of the great diversity and density of people there. San Francisco has been something of a leader. After a local organization, Shareable magazine, issued a policy paper, “Policies for a Shareable City,” Mayor Ed Lee appointed a Sharing Economy Working Group to explore ways to encourage a “shareable city.” Among the ideas: resource-sharing among citizens (e.g., ride sharing), coproduction assisted by the city government (urban agriculture) and mutual aid among citizens (eldercare). In Naples, Italy, Mayor Luigi de Magistris has appointed an Assessor of the Commons to take account of local commons systems and has rallied municipal officials throughout Italy to improve city government support for local commons.

In Rome, Italy, the former employees of a grand public theater and former opera house, Teatro Valle, took over the premises in 2011 after the city government had failed to support it, and managed it as a self-organized commons. The protest was part of a larger complaint about the government’s failure to maintain civic and recreational spaces even as it privatizes cherished public properties, leading to higher rents and evictions. The occupation of Teatro Valle, still underway, has inspired other citizen groups to mount direct action protests that have reclaimed other buildings and spaces. Instead of simply fighting privatization, aggrieved Romans have come to realize that they need active, ongoing self-governance beyond representative government.

There are other more ambitious initiatives to try to promote social commons in urban areas. Urban designers Nikos A. Salingaros, Federico Mena-Quintero and others are seeking to apply the principles of peer-to-peer production to urban environments. “P2P Urbanism,” as it is called, seeks to make city design and daily life more hospitable to ordinary people. Instead of the dehumanizing monumentalism that “starchitects” have inflicted on many cities, P2P Urbanism proposes collaborative design and user participation in urban planning, drawing upon the wisdom of pattern theory guru and architect Christopher Alexander. The initiative also seeks to make urban design more adaptable to local conditions and individual needs in the style of open source software and peer production.

Businesses Embedded in Commons

As a matter of principle, some commoners regard the ethic of the money economy to be fundamentally hostile to the ideals of commoning. Other commoners are more open to pragmatic relationships with markets so long as these do not undermine the commons. So can market activity and commons coexist happily? The question is a controversial one among some commoners.

My own view is that few commons can operate in total isolation from the rest of society. Virtually all commons are hybrids that depend in some measure upon the State or the Market. The important point, therefore, is to assure that commons can have as much autonomy and integrity of purpose as possible. If commons are to interact with markets, they must be able to resist enclosure, consumerism, the lust for capital accumulation and other familiar pathologies of capitalism.

Finding a sustainable rapprochement between commons and markets is a complicated challenge. It helps to understand that markets are not necessarily the same thing as capitalism. Markets can be entirely local, fair and responsive to community needs if they are sufficiently embedded in communities and accountable to them. However, in contemporary life, commerce is so often integrated with vast national or global markets and driven by the “divine right of capital,” as Marjorie Kelly puts it. Capital-driven markets tend to produce enormous structural disparities of power that disenfranchise consumers, workers and communities. They plunder nature with little concern for the long-term consequences.

The good news is that it is becoming easier for many communities to assert greater control over the structure and behavior of markets. For example, community-supported agriculture (CSAs) and local farmers’ markets have a deep stake in their communities. These social relationships and the local accountability of markets mean that a community can meet many needs while avoiding the rapacious ethic of global capitalism. Markets need not be predatory and socially corrosive; they can become socially integrated into a community and made locally responsive. Other examples include cooperatives, the Slow Food movement and mutual businesses (owned by their member-consumers), all of which try, in different ways, to incorporate larger social values with market activity.

One of the most successful commons-based business enterprises I have encountered is Cecosesola, the Central Cooperative for Social Services of Lara, in Venezuela. For more than forty years, this self-organized, self-financed project has run over eighty cooperatives — banks, farms, factories — as well as civic associations and organizations. Cecosesola deliberately avoids hierarchical relationships and bosses by moving tasks and production among its 1,200 associate workers. Deliberations take place in assemblies that strive for consensus — a process that requires a great deal of mutual education, communication and dialogue. Prices at Cecosesola’s five local food markets are not based on demand but on “fairness.” All vegetables are sold at the same price per kilo, for example. Cultivating trust, commitment to the common good and the courage to take risks — all within a flexible, evolving organizational structure — lie at the heart of Cecosesola’s improbable success.

The trick in melding commons and markets, to my mind, consists in nourishing a distinct culture of commoning while devising “defensible boundaries” around the commons so that it can maintain its basic autonomy. In medieval times, commoners would often “beat the bounds” — walk the perimeter of their forest or piece of communal land — as part of an annual community celebration that doubled as an occasion to patrol the boundaries of their commons. If they came upon a private fence or hedge that had enclosed the commons, the commoners would knock it down, re-establishing the integrity of their land. Community enforcement of the “perimeters” of commons is essential.

Our task today is to devise modern-day equivalents of beating the bounds. Two successful examples in cyberspace are the General Public License for software and the Creative Commons licenses. Both ensure that commoners can retain control over the fruits of their shared labors by prohibiting private appropriations of code and digital content, respectively. The biocultural protocols developed by the South African advocacy group Natural Justice have a similar purpose — to prevent transnational corporations from appropriating the specialized ethnobotanical knowledge and agro-ecological practices of indigenous peoples.

Commoners today “beat the bounds” when they devise formal rules and ethical norms as ways to preserve their commons. The elaborate governance rules of Wikipedia editing, the customs that Maine lobster fishers have negotiated among themselves, the rules for New Mexican acequias — all have the goal of preserving the resource and the community while excluding outsiders who have not invested their energies in cultivating the commons or who may act as vandals or free riders.

Equipped with self-devised rules and governance systems, commoners achieve something else as well: they can pressure markets to be more responsive to the consumers who must rely upon them. One might call these “commons-based markets” — coherent communities with enough power to influence and tame markets. Such markets are more prevalent on the Internet, where social communities (or loose networks) can self-organize as passionate affinity groups before turning to markets to meet certain needs.

In his book Democratizing Innovation, MIT professor Eric von Hippel describes numerous communities of “extreme sports” enthusiasts — bicyclists, surfers, rock climbers and so forth — who are the source of pioneering ideas that business enterprises then develop and commercialize. Of course, many commoners question why any profit-driven business is needed to play this role when, in principle, commoners could produce what they need themselves, directly, cheaply and perhaps more responsively. It’s a fair point, but for now, the practical ability of commoners to implement the necessary, often complicated business functions (raising capital, managing complex supply chains) in the context of a commons remains limited. But this could change in the near future.

There is great debate among commons advocates about how to adequately protect the commons from capitalist exploitation. How can the commons be structured so that its logic is decoupled from that of capitalist markets — and yet still be able to interact with markets as needed? For my colleague Silke Helfrich, the key is to ensure that a commons has the capacity to protect and reproduce itself. The commons must have within its very structure the capacity to assure its own longevity and self-protection. It must be able to protect its resources and community norms.

This could be achieved through legal rules that prevent outsider appropriation or interventions. It could be achieved through social practices and norms that constitute commons governance. It could be achieved through geographic isolation from markets or through technological barriers (fences around a resource; digital “gates” for authorized commoners). Without such protections, commons are vulnerable to capitalist appropriations, a problem that can be seen in the Google Books Library Project, Facebook and other open platforms. In such situations, commoning becomes another type of “market input” that can be alienated from commoners and privatized. It is therefore important that commons develop the means to protect the fruits of their labor and reproduce themselves and other commons.

What we need, says Helfrich, is “a shift from commons-based peer production to commons-creating peer production.” Ultimately, she insists, “the commons is not about organizational form or property rights. It’s about the purpose. If commoning ends with a sale on the market, then what happens to all the other people who have a stake in the process of commons-based production?” “Open” systems give no guarantee that the long-term social or ecological interests of contributors will be respected or protected.

State Trustee Commons and Global Commons

Many of our shared resources are so large that they require government to take care of them properly. These common-pool resources, or CPRs, include large-scale entities such as national parks, federally funded research, public lands, the airwaves and the atmosphere. (Remember: CPRs = the resources, without commoners. Commons = resources + community + the rules and norms for managing them.) It is impossible to manage large CRPs in the same way as a small village commons. A larger set of institutional systems and legal rules — a “commons infrastructure” — is needed.

The state trustee commons is one way to manage a large common-pool resource. This is not just another word for state management of resources; it is a way of emphasizing the state’s important role in facilitating commoning. Instead of conceiving government as “just taking care of things,” we need to think about how state bureaucracies can host a wider, more robust citizen role in policymaking and enforcement.

It helps to get the state’s role right in the first place: the state must act as a trustee for commoners. It must conscientiously maintain and protect shared assets from enclosure. It must ensure that those assets are accessible to everyone on fair, nondiscriminatory terms, and that commoners have the authority and space to engage in genuine commoning. I like to call government-run programs state trustee commons to emphasize that the resources belong to the people, not the state. As a trustee, the state has affirmative obligations to assure maximum possible transparency, participation and stewardship at the lowest level of governance possible (“subsidiarity”).

A state trustee commons can take many forms. It can oversee the rentals of government-managed assets. It can sanction independent commons trusts to act with their own delegated authority. It can use online tools such as social networking to elicit useful citizen participation in government proceedings. Here are some examples.

In the US, the federal government leases grazing rights on public lands to cattle ranchers (at rock-bottom rates). It sells the right to mine gold, silver and other metal ore on public lands for $5 per acre and no standing royalties. The government also auctions off parts of the electro-magnetic spectrum for use in telecommunications (recouping some measure of their value). The issue for a state trustee commons is how to ensure that it acts as a conscientious steward of the land and a fiscally responsible agent of leases. This idea needs to be “baked into” the legal structure, operations and accountability mechanisms of government bodies that manage public resources for the public benefit.

One ingenious model is the stakeholder trust. A classic example is the Alaska Permanent Fund, an independent trust fund established by the state legislature to collect a portion of royalties for oil extracted from state lands. The trust then disperses a dividend, usually on the order of a thousand dollars to every household in the state each year. Because the fund is independent of the government and charged to act as a fiduciary trust on behalf of specific beneficiaries (the citizens of Alaska), it helps assure that a modest portion of oil revenues directly benefit taxpayers, providing them with a welcome source of non-wage income. As described in a recent book (Exporting the Alaska Model by Karl Widerquist and Michael W. Howard), this model could be adapted to manage many other types of natural resources, in the US and around the world. Commons activists in Vermont have in fact proposed a common assets trust fund that would act as a fiduciary and steward of the state’s wildlife and fish, forests, groundwater, minerals and other natural resources. Thanks to innovations in social networking, it is now possible to imagine the state providing a greater role to citizens through online platforms. They can do more than “participate” in a preordained (rigged?) government agenda; they can initiate new ideas of their own devising and assume real responsibilities that matter.

Earlier I mentioned a number of “eco-digital commons” that are inviting citizens to help collect environmental data or assist NASA in classifying craters on Mars. Another example is the U.S. Patent and Trademark Office’s Peer to Patent project, which invites people to submit instances of “prior art” for inventions. This is a way to improve the quality of patents by helping to identify prior innovations that might call into question a patent application claiming ownership of a novel invention. The wiki-style crowdsourcing helps prevent the government from giving out unwarranted patent monopolies that could inhibit future innovation. Given the proper support, citizen-commoners with expertise and interests in given fields could evolve into active constituencies that act as agency watchdogs. They could come up with their own innovations and pressure government agencies to fulfill their missions better.

A new frontier for state trustee commons is devising institutional forms and legal principles that can improve the governance of CPRs that are regional or global in scope. It is clear that the existing nation-state and international treaty organizations are not going to set enforceable limits on global carbon emissions, for example, or prevent the destruction of fisheries, coral reefs and biodiversity loss, all problems that span political jurisdictions. These issues have been festering for decades; the Market/State just can’t bring itself to set meaningful limits on the commercial activity that’s exacerbating them.

In our book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, my colleague Burns H. Weston and I tried to imagine new sorts of minimalist, flexible policy structures that could encourage the work of commons at all levels — local, regional, national, transnational and global.

This takes us beyond the state trustee commons to entirely novel modes of state support for commons. The goal is to unleash the great self-reinforcing energies of commons as a valuable form of governance without stifling them through top-down micromanagement or political interference. The design challenge is to find a way to govern CPRs at the lowest levels feasible — a principle often known as “subsidiarity” — and with multiple centers of authority. Levels of commons would be diversified and “nested within” higher levels of governance — the concept of “polycentricity,” an idea that Elinor Ostrom explored in her work.

While skeptics may scoff at such ideas as too speculative and far-fetched for dealing with global environmental problems, it is surely more utopian to think that centralized state institutions of limited competence and declining social trust will be able to force people to adopt changes that the Market/State itself does not really wish to implement in the first place. By contrast, commons have shown their capacity to energize people to take direct responsibility; set limits on market activity; model a new vision of human development; and nurture an ethic of sufficiency. However the new global commons are structured (and this is a longer discussion than we can deal with here), the new state-mediated systems will have to open up new spaces that let commons-based governance flourish. That, at least, is the vision that Burns Weston and I propose.

Such global commons are indeed a departure from the classical notion of a commons. I see them as a logical extension. They are surely related in spirit to classical commons, yet they set forth a new “policy imaginary” for preserving our shared ecological gifts. The first step down this path is for the state to recognize the commons as a quasi-independent sector in its own right. Commons have provisioning capacities and a social legitimacy that state bureaucracies will never have.

These ideas clearly require a bold reconceptualization of the neoliberal Market/State. My colleague Michel Bauwens has proposed that we reimagine the State and the Market as a “triarchy” that shares governance authority with the commons — the Market/State/Commons. The goal is to realign authority and provisioning into new, more socially beneficial configurations. The State must shift its focus to become a “Partner State,” as Michel Bauwens puts it, and become more than a colluding partner of the Market sector.

As a member of a triarchy, the State would remain important in managing resources that cannot be easily divided into neat parcels (the atmosphere, oceanic fisheries, the human genome). It would also manage resources (petroleum extraction, minerals) that may generate large amounts of money on a regional basis. But it would have to devise better ways to manage public lands, national parks, wilderness areas, state-sponsored research and civil infrastructure in conscientious, effective ways. Government agencies — long accustomed to doling out subsidized assets and infrastructure to voracious corporations — must be structured to act as conscientious and transparent administrative and fiduciary trustees of common assets.

Purists may object that government-managed systems for shared resources cannot truly be considered commons. But we should remember that even commons such as open source software or academic research depend upon government and markets in all sorts of indirect ways. Government funding supported the development of the Internet and still funds a vast amount of academic research; most personal computers are still acquired through commercial vendors; and so on. The question is not so much whether markets or governments have some role in commons but rather to what degree and under what terms. The preeminent challenge is to assure the greatest integrity of commons, so that the fruits of commoning are not siphoned away by clever, covetous businesses and governments.

For now, the idea of a state-authorized Commons Sector may seem politically quixotic. After all, the state is generally indifferent or hostile to most collective enterprises except corporations. Thus a serious ongoing challenge for commoners is to self-organize themselves into quasi-sovereign collectives — a wiki, a seed-sharing collective, a water commons — committed to building and protecting their various resources and to insisting that the State recognize and respect them. We need new federations within the Commons Sector that can mobilize politically. We must devise legal innovations that can give the commons real standing in law. Until such things are achieved, the empire of capital will continue to impose its suffocating logic as widely as possible.

THIS SURVEY OF prominent classes of commons cannot truly do justice to the variety of commons in the world. But I hope that it conveys the range and complexity of commons, as well as some of their deep “similarities amidst difference.” This truly is one of the enduring hallmarks of commons — their capacity to surprise.

10

THE COMMONS AS A DIFFERENT WAY OF SEEING AND BEING

TO ANDREAS WEBER, a theoretical biologist in Germany, the commons is not simply a matter of public policy or economics. It is an existential condition of life in all its forms, from cellular matter to human beings. “The idea of the commons provides a unifying principle that dissolves the supposed opposition between nature and society/culture,” he writes. “It cancels the separation of the ecological and the social.” According to Weber, the commons provides us with the means to reimagine the universe and our role in it.

If we are to truly transform our economic and political systems, Weber argues, then we must also address some unquestioned, deeply embedded premises of those systems. In effect we must reassess the nature of reality itself. As creatures immersed in the liberal political paradigm and the principles of Darwinian evolution, most of us implicitly see life as a fierce, competitive struggle and the economy as a kind of machine in which countless individuals strive to maximize their personal wealth and advantage. Competitive triumph is all. We also see, implicitly, a Newtonian universe in which large abstract forces buffet the inanimate particles of nature. In this view, human consciousness and meaning are insignificant if not moot in the cosmic scheme of things.

Our tacit metaphysical commitments, argues Weber, are the very basis for our “free market” economic and political structures. What’s so intriguing is that many scientists are starting to see the natural world and evolution through a different metaphysical prism, one that sees life as a system of cooperative agents constantly striving to build meaningful relationships and exchange “gifts.” Competition still exists, of course, but it is interwoven with deep, stabilizing forms of cooperation.

In this new theoretical scheme, the subjective experiences of an organism matter. That’s because, in the emerging scheme of biological thought, all organisms are “meaning-making” living systems. Life is seen as an evolutionary process in which embodied subjects interact with their environment and other living organisms to create meaningful relationships. Subjectivity is not an illusion or an inconsequential side-story, as our existing metaphysics claims; it is not a mere bubble of ephemeral, trivial feelings in an empty universe. Rather, subjectivity is the centerpiece of a new “existential ecology” whose primary concern is subjects, not objects alone. Human beings are not isolated atoms adrift in a vast indifferent universe. Our human subjectivity is not separate from a nature that exists as an alien, unfathomable “other.” The subjective and the objective, the individual and the collective, blur into each other — just as in a commons!

Weber, speaking as a scientist, calls his new evidence-based theory “biopoetics.” It is both a metaphysics and a biological theory that can explain “the deep relationship between felt experience and biological principles.” Weber argues that the “science of life” as traditionally studied is no longer an adequate methodology for understanding living things. Conventional science fails to address the realities of consciousness and subjectivity in living organisms; indeed, these topics have been more or less banished from the field of study. But, as Weber writes, “only if we understand organisms as feeling, emotional, sentient systems that interpret their environments and do not slavishly obey stimuli, can we ever expect answers to the great enigmas of life.” For him, biopoetics has the potential to provide “a new holistic account of biology as the interaction of subjects producing and providing meaning and hence laying the ground for understanding the meaningful cosmos of human imagination.”

The commons is central to this vision. Only through commoning do we start to reintegrate ourselves with nature and with each other. Our challenge, Weber contends, is to bring about a new “Enlivenment” — a new type of rebirth to succeed the three-hundred-year-old Enlightenment. Our calling is to enact a vision of the universe that honors our subjective identities and need for meaning as biological necessities. We can do this by engaging in “the rituals and idiosyncrasies of mediating, cooperating, sanctioning, negotiating and agreeing, to the burdens and the joy of experienced reality,” says Weber. “It is here where the practice of the commons reveals itself as nothing less than the practice of life.”

While Weber’s biological theories, like the commons, remain outside of the mainstream, to me they help explain the deep visceral appeal of the commons paradigm. They confirm that the commons is no PR gambit or “messaging” strategy, but rather a prism for seeing the world anew, and more profoundly: in its totality. In all its diversity. With a realistic understanding of humanity as it works on the ground. Weber’s analysis situates the individual as a conscious, subjective agent in the world. It recognizes the role of actual history, local circumstances, culture and individuals in shaping human evolution and in creating commons.

To see the commons — to really see the commons — we need to escape the highly reductionist mindset of market-based economics and culture. We have to learn to see that a cooperative logic can animate human institutions, and that, with the right social structures and norms, this humanistic ethic actually works. Market culture has insidiously narrowed our imaginations. By privileging the interests of private property, capital and markets as governing priorities, our very language marginalizes the idea of working together toward common goals.

In this chapter, I want to touch on some of the ways in which the commons cuts deeply into our received notions of “reality” and invites us to reorient our thinking. The commons helps bring to the fore new perceptions and perspectives, and opens up new solution sets for vexing problems. To be sure, it is perfectly possible to talk about the commons in conventional terms and not raise any bothersome questions about the prevailing frameworks of knowledge or worldview. Economists do it all the time. They conflate the commons with “public goods,” treating them as things and ignoring the social practices and relationships that animate those things. NATO talks about outer space and oceans as “global commons” — meaning, collections of mute resources — failing to appreciate that it is really talking about free-for-all, open-access regimes, not commons.

Taking the commons seriously, however, means changing some of the ways that we see the world. Our choices are not confined to being employees, consumers, entrepreneurs or investors seeking to maximize our personal economic well-being. We can begin to imagine ourselves as commoners. We can begin to become protagonists in our lives, applying our own considerable talents, aspirations and responsibilities to real-life problems. We can begin to act as if we have inalienable stakes in the world into which we were born. We can assert the human right and capacity to participate in managing resources critical to our lives.

The Metaphysics of the Commons

It is impossible in this short chapter to deal with all the complex metaphysical and epistemological issues raised by the commons. And in truth, these issues remain somewhat shrouded in mystery, at least to those of us immured within the Western modern, scientific worldview. Our culture and language do not equip us to see the humanistic and spiritual roots of the commons. It is nonetheless possible to glimpse some very different ways of seeing, acting and being in the world.

Proposing a new metaphysics of the commons — and new epistemological categories of knowledge — raises some disruptive questions about the basic assumptions of market economics and liberal democracy. Are human beings really capable of behaving rationally, independently and with informed consent in the marketplace and political sphere? Is it possible for human beings to be utterly autonomous and self-made, and to live in some zone outside of history and social particulars, as liberal universalism implies?

The commons challenges some of the myths that lie at the heart of liberalism, market economics and modernity. It rejects the idea that technological innovation, economic growth and consumerism will inexorably improve our lives if only we try harder and give ourselves more time. As noted earlier, normal economic activity arguably generates as much illth as it does wealth. In this sense, the commons dares to challenge the commodity logic that enshrines price as the supreme arbiter of value and material progress as the linchpin of all progress.

Commons scholar James Quilligan helps us understand this when he writes: “The notion of ‘goods and services’ in traditional economics is a reduction of the social relations among individuals — and of the individuals themselves — into commodifiable and fungible things. But a commons-based economics raises the possibility of experiencing value through the practical relationships that arise among individuals, the resources of the world, and that which exists between people and the world” (emphasis in original).

To talk of the commons is to validate this social coproduction as a constructive, satisfying activity. It also questions the social order and relationships implied by private property rights. “Commoning must be entered into,” writes the historian Peter Linebaugh. “Whether on high pastures for the flock or the light of the computer screen for the data, the wealth of knowledge, or the real good of hand and brain, requires the posture and attitude and working alongside, shoulder to shoulder. That is why we speak neither of rights nor obligations separately.”

The power of a commons comes from the actual social practices that animate it. But these practices — the complex rules and methods for how a forest may be used; for how Wikipedia entries are accepted and revised; for how irrigation waters are maintained and allocated in New Mexico — are highly specific, local and contextual. Norms cannot be easily generalized or made universal. This is precisely why it is so difficult to commodify the fruits of the commons without destroying the commons; its value is socially embedded and not readily converted into cash. Monetizing resources in a commons threatens to corrode the social relationships that hold a commons together.

As we saw in Chapter 9, indigenous peoples tend to have very different attitudes toward property. When a transnational corporation attempts to patent traditional knowledge or genetic material, they consider such propertization both fatuous and outrageous. No individual can claim to be the sole “author” of collective resources (as copyrights and patents imply) because these resources required generations of stewardship, inherited innovation and culture to develop and refine! No one can appropriate and sell for private gain something entrusted to a commons as a sacred trust. Hence the term “biopiracy.”

It is important to note that indigenous communities can be as vulnerable to the seductions of money and power as anyone else. Some indigenous leaders have sold their traditional knowledge or resources for a pittance or entered into “benefit sharing” arrangements with Western pharmaceutical interests that end up betraying or greatly weakening their cultures. The San people of the Kalahari Desert in Africa agreed to 8 percent of the profits in a new diet drug made from Hoodia gordonii, a cactus the San have traditionally used as a natural appetite suppressant. Many have criticized this deal as a case of biopiracy that has injected market norms and large sums of cash into a traditional culture, with troubling effects.

Indigenous peoples generally see individuals as nested within a larger network of people; the very idea of the “self-made” person is somewhat ridiculous or even delusional. Not surprisingly, the idea of private property tends to be nonsensical for them because property is not so much a description of a thing as it is a description of social relationships with others. The idea of “sole and despotic dominion” over a resource, as Western law has come to think of property, denies our inescapable dependence on nature and our interdependence on each other.

Indigenous people tend to see their resources and knowledge as embedded in a community of reciprocal care and group stewardship. Modern industrial societies presume (incorrectly) that such arrangements are archaic and unnecessary, and that markets can provide what we need. “Monetize the resource and split the income. What could be fairer?” The arrival of climate change, Peak Oil and countless other environmental crises suggests the actual limits of this type of thinking and its ontological assumptions about our place in the world.

Interestingly, an emerging universe of digital commons is also revealing the inadequacies of the “monoculture of knowledge of the 20th Century,” as anthropologist Marianne Maeckelburgh has put it. The knowledge generated by large centralized institutions and disciplines is too brittle, monochromatic and remote from the diverse lived realities of real people. The dominant systems of thought in our time, especially those of bureaucracies, conventional economics and scientific inquiry, have delegitimized vernacular culture — the practice-based ways of knowing and being. We need to understand ourselves as corporeal, situated human beings if we are to surmount our many ecological and social challenges.

The loss of diverse languages around the world represents a major setback in humanity’s quest to come to terms with the more-than-human world. Most of Australia’s two hundred and fifty aboriginal languages have disappeared, as have one hundred native languages in the area now known as California. As Daniel Nettle and Suzanne Romaine point out, “the extinction of languages is part of the larger picture of near-total collapse of the worldwide ecosystem.” Native languages represent invaluable storehouses of particularized knowledge, especially about specific ecological systems. “Every language is an old-growth forest of the mind,” as ethnobotanist Wade Davis memorably puts it.

The commons, taken seriously, is about honoring the new and diverse types of knowledge that are collectively constructed by commoners themselves, in their own specific circumstances. This knowledge could be about the seasonal habits of wildlife, the folkways of open source software communities or the community traditions that reward blood donations. Maeckelburgh has studied a range of activist and networked communities to identify the “alternative ways of knowing” that self-organized communities are developing. This “knowledge is collectively constructed,” she notes. It is “context-specific, partial and provisional.” And it makes a distinction “between knowing something and knowing better. At the heart of the struggle for self-determination, then, is what anthropologist Arturo Escobar calls “a micro-politics for the production of local knowledge. . . . This micro-politics consists of practices of mixing, re-using, and re-combining of knowledge and information.”

Commoners rarely presume that there is a fixed body of canonical knowledge whose authority must be respected. They create their own (situational) types of knowledge through engagement with each other and their common resources. Why should some abstract, self-serving bureaucratic or economic framework automatically prevail when local expertise and experience-rich traditions may be more trustworthy, responsive and practical?

The Commons as a Crucible for Localism

This is, in fact, a great appeal of the commons — its promise of local self-determination. People are gravitating to the commons because they see it as a way to celebrate and protect their particular local circumstances. A community’s identity is inevitably entangled in its geography and its buildings, its history and its leaders. It is the place where people learn and develop a fuller sense of humanity and ecological responsibility. Wendell Berry, the poet and ecologist, has put it this way: “Only the purpose of a coherent community, fully alive both in the world and in the minds of its members, can carry us beyond fragmentation, contradiction, and negativity, teaching us to preserve, not in opposition but in affirmation and affection, all things needful to make us glad to live.” Or as Berry said on another occasion, quoting Alexander Pope, “Consult the genius of the place in all.”

This approach resonates so deeply with commoners because global commerce has diminished so much that was once distinctive and fecund about individual places. A shopping mall in Bangkok is now the same as ones in Qatar, Germany and the US. Millions of people have gotten so accustomed to getting food from supermarkets, which are supplied by huge corporations with heavily advertised, brand-name foods, that it is sometimes hard to imagine that food was once filled with rich, homegrown, local variety. If you went to Nebraska, you once got Nebraska baked beans. If you went to Georgia, you might get possum and taters. Alabama kitchens would serve up oyster roasts, and Montanans considered fried beaver tail a delicacy. In the West, our relationship to the biological origins of food has been nearly lost.

The Slow Food movement is an attempt to recover some measure of local control over food production and distribution — and in so doing, to recover some of the social satisfactions and stability of living locally. The commons is often invoked in these conversations as a way to help reassert and reconstitute everyday community. The same impulse drives the so-called Slow Money movement, which seeks to make flows of finance more responsive to long-term community needs. The Transition Town movement, which aims to anticipate possible catastrophes stemming from Peak Oil and global warming, also seeks to mobilize local cooperation and citizen innovation to take steps that neither markets nor states seem capable of doing.

FORTIFYING THE LOCAL has far-reaching political implications. Again, Wendell Berry said it well: “The great enemy of freedom is the alignment of political power with wealth. This alignment destroys the commonwealth — that is, the natural wealth of localities and the local economies of household, neighborhood, and community — and so destroys democracy, of which the commonwealth is the foundation and practical means.”

We should not romanticize the local as an easy or automatic solution to the problems caused by global markets, however. The need for responsive “top-down” structures remains. Some collective-action problems can only be solved with appropriate high-level policies or infrastructures. Centralized bodies are often needed to assure a rough equality of opportunity and resources, or to oversee redistributions of wealth. It doesn’t make sense for every community to replicate functions that might be performed effectively (and without harmful externalities) at a state or national level, or even by larger markets. On the other hand, a certain redundancy and inefficiency are essential to a system’s long-term resilience.

For the time being, however, we don’t really have a rich typology of larger-scale commons infrastructures. We don’t really know how to design or build them. Such functions are usually considered the province of government. But I think it is time for commoners themselves to imagine how infrastructures and large governing protocols should be engineered. This could be politically difficult. Governments are jealous of their sovereignty and are not generally predisposed to understand and support commons. The idea of letting bottom-up, network-driven decisions emerge and prevail is threatening to traditional institutions of control. Yet that may be the only way that the energy, imagination and social legitimacy of commoners will be available to solve our myriad problems. We’ve already seen in countless ecological and social crises that the state and market, as constituted, are not up to the job. Let’s begin to acknowledge this simple fact.

The Commons as a New Vision of Development

The capacity to honor the local through commoning suggests that there are better ways to achieve “development” than through economic growth. In this sense, the commons constitutes a new vision of human development. It begins to recognize the failures of conventional economic development strategies, and it takes seriously the idea that people can use commons-based systems to advance their long-term interests. There is currently a great deal of innovation and intellectual ferment surrounding the commons as a new development paradigm.

I mentioned earlier the role of seed-sharing in helping emancipate traditional farmers from the clutches of volatile global markets. The System for Rice Intensification — an international community of farmers who advise each other on improving yields from organic non-GMO varieties of rice — is another example. The Potato Park in Peru, mentioned above, is also noteworthy. So is the Oaxaca Commune in Mexico, which is forging new ways of communally managing land and other resources in the city of 600,000 people, and the Zapitistas’ innovations in self-government in Chiapas, Mexico.

The Guassa Community-Based Conservation Area in Ethiopia, managed by the Menz indigenous people, has served as a grazing commons for more than four hundred years. The Menz still collect grass for thatching and wood for cookstoves there. Even though the region does not have any formal protection status, the Menz community has successfully combined its subsistence needs with a respectful coexistence with wildlife, including the most endangered carnivore in the world, the Ethiopian wolf.

These and many other innovations show that the commons can provide a “scaffolding” for exploring realistic alternatives to the (failed) neoliberal vision of development. Commons-based models are not just “policy mechanisms” that are inserted into a situation to “solve” a problem; they generally embody a very different vision of life than that of Western industrialization and consumerism. In Ecuador and Bolivia, buen vivir — “good living” — is a discourse that attempts to name a different development vision and way of being in the world. Buen vivir honors the ideas of community autonomy, social reciprocity, respect for natural ecosystems and a cosmic morality. In various ways, indigenous peoples, traditional cultures and commoners caught up in market systems are trying to express a worldview beyond the rational instrumentalism and economic mentality of market capitalism. In this sense, the commons is not just about managing resources; it’s an ethic and inner sensibility.

This inner conviction ultimately empowers people to take responsibility for the Earth’s resources and to nourish their own sense of stewardship. People discover that it is not only personally enlivening and culturally wholesome to participate in a commons; it is a way to encourage people to set and enforce sustainable limits on markets. Commoning provides a credible alternative to the growth- and consumer-based visions of development peddled by the World Bank. It provides a path for reducing inequality and insecurity in marginalized nations while highlighting the vital role of local ecosystems and commons-based governance.

Finding a Rapprochement Between the State and Commons

The idea of commons-based development strategies naturally raises the question, What then should be the proper role of the State with respect to the commons? This, too, is a complicated question that deserves much further investigation.

Historically, the State has had very little to do with commons except to indulge their existence or work with market players (corporations, investors, industries) to enclose them. The basic problem is that the state has strong incentives to ally itself with market forces in order to advance the privatization and commodification of public resources. Enclosures + economic growth = power and tax revenues. To disrupt this logic, we must reconceptualize the role of the State so that it acts to authorize and support commons-based provisioning.

As Professor Burns Weston and I explain in our book Green Governance, political pressure must be brought to bear on states to recognize a number of “macro-principles and policies” to support the commons. These include recognition of:

       commons- and rights-based ecological governance as a practical alternative to the state and market;

       the principle that the Earth belongs to all;

       a state duty to prevent enclosures of commons resources;

       state trustee commons as a way to protect large-scale common-pool resources;

       state chartering of commons;

       legal limitations on private property as needed to ensure the long-term viability of ecological systems; and

       the human right to establish and maintain ecological commons.

Michel Bauwens’ idea of a “triarchy” that realigns authority among the State, Market and commons (as discussed earlier) is bound to be controversial and perhaps confounding. In many nations, the idea of the collective good is so fused with government that it is difficult to imagine an independent, nongovernmental sector (the commons) serving that purpose. The commons, to the extent it is considered at all, is often equated with “the citizenry” or “the public,” and not with distinct communities of commoners. It may take some cultural imagination, therefore, to entertain the idea of the commons as an independent sector separate from the State, with its own moral compass and political identity.

There are legitimate policy questions about how national and provincial governments can formally recognize the commons in law. It is not self-evident how the State could assure that local commons, absent intervention, would not abuse their authority or the environment, or discriminate unfairly against some people. These are serious questions, but I do not consider them insuperable. After all, the State has delegated considerable authority to corporations to perform certain functions while retaining ongoing oversight. If the State can charter corporations as a vehicle for serving the public good, in principle it ought to be able to delegate similar authority to commons. Diverse sorts of commons demonstrably serve the public good every bit as much as State-chartered corporations do (and at far less cost to the environment and public resources). And properly structured commons are generally more responsive than legislatures and State bureaucracies, which tend to be geographically remote, inaccessible to the layperson and heavily influenced by monied special interests.

The more fundamental problem may be the deep philosophical tension between the liberal polity and the commons. Through the apparatus of constitutional law and limited government powers, liberal democracies in theory seek to promote the greatest good through individual rights, universally applied, among legally equal citizens. The liberal polity generally makes few provisions for collective rights that exist beyond the individual. To be sure, various United Nations treaties and programs have a commitment to social, economic and cultural human rights, which in practice can act as a hybrid legal shelter for collective interests. But these are not collective rights as such, nor do they necessarily protect the commons. Indigenous peoples around the world have discovered this time and again; the juridical categories for protecting collective interests have scant legal and philosophical standing in the liberal worldview. The commons is thus frequently inscrutable to conventional policymaking, if not wholly incompatible.

To date, the few existing commons-based innovations that have sought the protection of formal state law — the Creative Commons licenses, the General Public License, community land trusts, protections for indigenous peoples — have had to resort to “legal hacks” around the law. The State could and should do more to recognize the authority of commons as vehicles for serving the public interest. But calibrating the level of State involvement is tricky. It is important that the State not become too involved in overseeing the commons lest it overwhelm the will of commoners to manage things themselves, which is the very point. Yet the State should not simply use the existence of commons to shirk its own responsibilities by withdrawing legal, administrative or financial support for them. This is a criticism made of UK Prime Minister David Cameron’s “Big Society” policy gambit, which has celebrated community control while cutting public funding to assist it.

As I see it, the proper model for State support of commons should be “State policies in the service of commons formation and stewardship.” The State should openly recognize that self-organized commons can perform certain functions more effectively than the State or Market, and with greater perceived legitimacy, fairness and participation. This is complicated terrain because the devil is in the details, and the details vary immensely from one commons to another. But it is abundantly clear that commoners using digital networks can now amass, organize and deploy knowledge more rapidly and reliably than large centralized bureaucracies (examples abound in the use of wikis, crisis-relief coordination, reporting via social networks and crowdsourcing of research). The real challenge may be how to find new ways for bureaucratic institutions and digital commons to collaborate. Ecosystem resources, too, are often more effectively and responsively managed by local commoners with the direct authority and responsibility to supervise their own forests, fisheries or water systems without outside interference.

Not all commons are necessarily equitable and benign, so the state may have an important role in setting minimal ground rules and performance parameters for them — and then letting the “distributed creativity” of commoners evolve the most appropriate local solutions. This model has worked famously on the Internet, as demonstrated by the TCP/IP protocols that lie at the heart of that infrastructure. The tech architects of the Internet did not seek to control or direct how people must behave on the Internet; they simply established minimal common standards (TCP/IP) for how communications should be formatted, addressed, transmitted, routed and received. This gave people enormous freedom to innovate as they saw fit within those basic parameters — a freedom that ultimately allowed something entirely unimaginable to emerge: the technical protocols for the World Wide Web.

Of course, autonomous commons in non-digital spaces are not going to simply spring up out of the blue because we stipulate a few basic parameters. Budgets and resources are needed. The state may need to help this process legally and financially, or at least provide support for self-organized, self-funded commons to establish themselves. Let’s remember that most governments have created elaborate bureaucracies, legal privileges and subsidies to help businesses form and flourish. Why not similar support for commons?

Such a change would require close political oversight, however, because many governments would welcome the “offloading” of financial and programmatic responsibilities — “Just let the commons do it!” — without shouldering the burden of helping new commons succeed. Indeed, most states remain yoked to the twentieth-century mindset of centralized bureaucratic control, and so would have trouble recognizing the value of self-organized commons based on minimalist design principles. This, truly, is one of the big tensions that nation-states are now grappling with as crowdsourced Internet innovation explodes. They can’t understand how distributed authority, participatory innovation and self-organized governance (outside of government) can yield effective, trustworthy results.

The problem to be overcome here comes down to how we conceive ourselves in the world, and thus how we perceive governance ought to be structured. Italian commons theorist and activist Ugo Mattei argues that if we are to understand the commons, we must

move beyond the reductionist opposition of “subject-object,” which produces the commodification of both. It helps us understand that, unlike private and public goods, commons are not commodities and cannot be reduced to the language of ownership. They express a qualitative relation. It would be reductive to say that we have a common good. We should rather see to what extent we are the commons, in as much as we are part of an environment, an urban or rural ecosystem. Here, the subject is part of the object. For this reason, commons are inseparably related and link individuals, communities and the ecosystem itself.

If Mattei’s analysis is accurate — and I believe it is — then it holds rather profound implications for the future of governance and the modern liberal state. It is no secret that state power is increasingly seen as illegitimate and ineffective. The authority and efficacy of “classical-modernist political institutions,” writes Dutch scholar Maarten Hajen, are waning. The idea that politics can be separated from bureaucratic implementation, and that neutral scientific expertise and centralized systems can manage complexity, is no longer credible.

Hajer argues that we are now living in an “institutional void” in which “there are no clear rules and norms according to which politics is to be conducted and policy measures are to be agreed upon. To be more precise, there are no generally accepted rules and norms according to which policymaking and politics are to be conducted” (original emphasis). Of course, proponents of neoliberal governance believe that the rules and norms for governance are entirely clear and generally effective. Their mantra generally focuses on trying harder to appoint the “right people” or reliable science to enact “reforms” that will finally prevent antisocial behaviors and “solve” unacceptable problems.

But the proliferation of political alienation and insurgency movements around the world calls into question the blind faith of neoliberal elites — or more to the point, the deep structural deficiencies of neoliberal institutions. Many citizens around the world no longer have confidence that conventional governments can provide solutions. They don’t trust government to act as a fair-minded host of democratic deliberation and broker of political interests. Many disillusioned citizens are shifting their political imaginations and energies toward their own DIY alternatives, interacting with the State only as necessary.

In the wake of the Internet, civil society has become too robust and transnational for governments to assert the kind of territorial sovereignty they once took for granted. There are now too many transnational networks of commoners and too many huge flows of information and communication beyond the control of governments. Enormous wells of innovation are emerging from the bottom up, on open networks, while the State struggles mightily to keep up. As a practical matter, insurgent commons may not pose an imminent political or economic threat. Global financial capital and market forces remain extremely potent, seemingly invincible forces. Yet the pervasive erosion of legitimacy, efficacy and credibility afflicting states around the world (and the neoliberal paradigm more generally) cannot continue indefinitely. At some point, a reckoning is inevitable.

Which makes me wonder: Can the old citizen/state dyad continue to function without significant shifts of authority and governance? Can the state solve our myriad social and ecological challenges, most notably arresting climate change, without reconfiguring itself? I doubt it.

As this analysis suggests, the challenge we face is to devise new forms of governance that will necessarily transform the nature of state sovereignty. This is uncharted territory for which the old rules and assumptions will have limited relevance. It seems clear to me that the commons — a highly versatile system of governance, resource-management and sense-making that can meet people’s needs in ways that are experienced as both legitimate and effective — will likely be part of the new order.

11

THE FUTURE OF THE COMMONS

THERE IS MUCH MORE that can be said about the commons — in greater depth, with greater precision, from different cultural perspectives, and with the wisdom of historians, poets and artists. My account here is only one of many. But if I’ve whetted your appetite to explore further, I am satisfied. This book is only a short introduction, after all.

A question I am asked a lot is What can I do to help the commons? Or as one woman put it after a talk I had given, “How can I become more “commonable”? A wonderful coinage! I always reply that it must start with your passion and where you live — and then you must find others to help push the idea forward, however small the effort may seem at first. The famous line by Margaret Mead comes to mind: “Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”

If you prowl the world of commoning as covered by my blog, the Peer to Peer Foundation, the Commons blog in Germany, Shareable magazine, Onthecommons.org or Stir magazine in the UK (or many others — see the blogroll on my website), you will encounter dozens of stories of ordinary people doing some amazing work. It is tempting to patronize some commons initiatives as “too small” to be significant; conventional policy experts like to imagine bold, sweeping plans that can be decisively implemented to “solve” problems. But the truth is that commons work best when they emerge organically over time in coordination with local conditions and specialized needs.

It is surely true that the government, public policy and international law at the “higher” levels must begin to provide legal and financial support to commons initiatives. There is a need for infrastructures and platforms to let commons flourish and unleash enormously important local energies. There is a need for commons-based innovations at national and regional levels, but also at the small levels, which are often patronized as “too small” to be consequential, but which can collectively, over time, remake a society. In this regard, I think of Mark Lakeman and City Repair, an enterprising civic project dedicated to reviving neighborhood spaces in Portland, Oregon; Rajendra Singh and his Young India Association, which has reclaimed the nearly dry Arvari River by applying commons principles; and the dozens of hackerspaces and FabLabs that commoners have created to co-produce software, customized fabrication and open hardware design and manufacturing.

The point in any of these instances is not so much to “scale” the commons in a linear, hierarchical sense — that’s so twentieth century! — but rather to intensify and diversify its workings everywhere at once. The process is more akin to crystallization, as my friend Silke Helfrich puts it. New “atoms” join the crystal as they resonate with its basic structures and ideas, and soon the crystal begins to take shape and grow in all directions without any traces of hierarchy or points of centralization. In this way, small changes — commons by commons — can have big cumulative effects on the whole system. (The Internet — a network or World Wide Web — has grown in much this way.)

This process is already underway. As the 2012 anthology The Wealth of the Commons documents, there is enormous worldwide interest in the commons as a way to reimagine a different kind of future. Some of this energy was catalyzed by the International Commons Conference in November 2010, which attracted two hundred self-identified commoners from thirty-four countries to Berlin to explore the possibilities. Another huge boost for commons activism was the May 2013 conference on economics and the commons, also in Berlin.

The fascinating reality is that scores of projects around the world are spontaneously adopting the commons discourse to frame their efforts. The World Social Forum and the alternative People’s Summit at the Rio+20 environmental conference issued stirring manifestos about reclaiming the commons. Political movements in Italy have arisen to prevent the privatization of water supplies and to launch citizen-managed commons. There are now websites that provide online courses on the commons and a Commons Atlas that directs people to maps of commons. The University of Notre Dame and the School of Commoning in London now host an Introduction to Global Commons course, while Occupy activists in the US have hosted two conferences on the commons. In Istanbul, artists have gathered to discuss the connections between art and the commons. And so on.

Most commoners I know are not interested in developing a “unified field theory” of the commons as a political philosophy. To be sure, they want to develop a larger, more coherent idea of what the commons means and how it may apply to diverse circumstances. But they tend to be wary of overemphasizing ideology and abstractions. The first priority of commoners, when it comes right down to it, is to tend and protect their particular commons. They understand that they need to focus their energies on the beloved commons that are near and dear to them. To cultivate the art of commoning: this is the base for all else.

It is precisely the decentralized, self-organized and practice-based approach of the commons that makes it so hardy as a political strategy. It’s harder to co-opt a movement when there is no single cadre of leadership. To put it more positively, a diversified movement rooted in on-the-ground, self-directed leadership can elicit much more energy and imagination than centrally directed initiatives can. Because it is usually based in practice, not theory, the commons can also skirt many of the enervating battles over ideological purity that often plague movements. (Not always, of course: the free software movement has had its share of battles over ideological purity, and many other commoners remain focused on the theoretical over the practical.) For many commoners. the point is less about getting the right intellectual formulation than about getting real work done. Ideas matter, to be sure, and strategic debates are important. But as the conceptual artist Jenny Holzer has pointedly noted, “Action causes more trouble than thought.”

In the early pages of this book, I asked how we could confront the aging dogmas of neoliberal ideology. How might we unseat a “free market” theology that cannot deliver on its promises and yet will not allow serious consideration of alternatives? The basic answer is now fairly clear, I hope. It’s important to form and expand a wider circle of actual functioning commons that can serve as “staging areas” for building a new vision for the future, a new cultural ethic, a new political constituency. This vision cannot simply be announced. A brilliant leader cannot simply declare what should be. The vision has to be negotiated and “co-enacted” by commoners themselves, over time. Appropriate strategies and solutions can only emerge from active experimentation, debate and innovation.

The commons is at bottom a cultural practice and outlook that seeks to understand the world in different terms. It is driven by a shift in perception about how human beings can actually influence the making of a better world. It is animated by personal ethics and social engagement finding new fulcrum points to leverage change. Representative democracy and law remain important vehicles for progress, but commoners tend to be realistic. The most urgent task is not necessarily to pass new laws or elect the right candidates, especially when the old system of governance is so corrupt and ineffective. The most urgent task is to devise durable and appropriate institutions for commoning. Enclosures of commons must be fought, and new defenses to protect the commons (legal, technological, social) must be built. This may or may not require state law.

A top priority, then, should be expanding the conversation about the commons. Get the cultural meme in circulation. Ground it in actual practice. This is the way that the commons will emerge as a credible, functioning reality. The more that people have personal, lived experiences with commoning of any sort, the greater the public understanding of the commons. To name it is to begin to (re)claim it.

In most societies around the world, the prospects for meaningful political change remain fairly dismal. The neoliberal project manifestly cannot deliver on its utopian promises of progress and prosperity for all, yet the traditional critics of neoliberalism and political progressives are not likely to pioneer the new paths we need. Most of them, I fear, are too intellectually fatigued, politically demoralized or compromised by their own yearning to appear relevant to the world of power and respectability.

The imaginary of the commons helps extricate us from this morass. It provides the opportunity to start anew, with a different conceptual foundation, a new framework of analysis and a more robust moral and political vocabulary. In its broad sweep, the commons offers a powerful way to reconceptualize governance, economics and policy at a time when the existing order is incapable of reforming itself. The commons offers a way to revitalize democratic practice at a time when conventional political institutions are dysfunctional, corrupt, resistant to reform or all three. It demonstrates that societies can actually leverage cooperation and bottom-up energies to solve problems. It points to new modes of governance that go beyond, or can work in constructive partnership with, representative democracy.

The feasibility of the commons to develop a new vision can be seen in the growing number of transnational commoners and the innovations they are developing. Not all of them espouse the commons discourse per se, but their various social practices certainly embody its core values: participation, cooperation, inclusiveness, fairness, bottom-up innovation, accountability. They all seek to combine production, consumption and governance into an integrated paradigm of change. These eclectic movements include the Solidarity Economy movement, the Transition Town movement, alterglobalization activists, water activists, the Landless Workers’ Movement in Brazil (MST), the international movement of peasants known as La Via Campesina, the free software and free culture movements, Wikipedians, the open-access scholarly publishing world, the Open Educational Resources (OER) movement, the dozens of international Pirate Parties and the Occupy movement, among others. The budding federation of these efforts suggests the beginnings of a new sort of global movement — a loosely coordinated movement of movements.

Four Strengths of the Commons

The commons could well become a focal point for much of this energy because it has four distinct advantages. First, it is a world-view and sensibility that is ecumenical in spirit and analysis. It isn’t a rigid totalizing ideology, but rather a template for change that is open-ended, flexible and accessible to diverse cultures and societies. It respects on-the-ground realities and practical working models.

Second, the commons has a venerable legal history that stretches back to the Roman Empire and the Magna Carta and its companion Charter of the Forest. This history is a great source of instruction, credibility and models for political and legal innovation today.

Third, the commons is a serious intellectual framework and discourse that lets us critique market culture and validate human cooperation and community. This has been an abiding limitation of political liberalism, which is too closely aligned with market ideology to take issue with its systemic flaws and limitations. It is not willing to entertain a notion of human existence that strays far from the models of Homo economicus. Its vision of political emancipation is also tethered to a vision of liberal universalism that cannot make good on its promises.

Finally, the commons consists of a rich array of successful working models for provisioning and empowerment that in many instances are out-competing the Market and State. It provides some positive, constructive alternatives that ask us to step up and show responsibility and imagination; it is not just an exercise in carping and criticism. In the commons, we are called to be active participants in building a new world, not just consumers and voters. The commons is an active verb, not just an inert noun. It is not something that we just hand off to politicians and bureaucrats.

The Commons as Both Gift and Duty

Alain Lipietz, a French political figure and student of the commons, traces the word “commons” to William the Conqueror and the Normans — not the English, interestingly. The term “commons” supposedly comes from the Norman word commun, which comes from the word munus, which means both “gift” and “counter-gift,” which is to say, a duty.

I think this etymology gets to the nub of the commons. We need to recover a world in which we all receive gifts and we all have duties. This is a very important way of being human. The expansion of centralized political and market structures has tragically eclipsed our need for gifts and duties. We rely on the institutions of the Market and the State for everything, leaving little room for personal agency or moral commitment. And so we have largely lost confidence in what Ivan Illich called the vernacular domain, the spaces in our everyday life in which we can create and shape and negotiate our lives. I think we need to fortify what I call vernacular law — the law of the commons.

What I find reassuring is the deep resonance that this idea has among so many different people around the world — Filipino farmers, Brazilian remix artists, Amsterdam hackers, German co-op members, American free culture users, Italian municipalities. The explosion of commons-based initiatives popping up around the world in countless different milieus is creating powerful synergies and opening up some rich possibilities for change.

This is exciting because when theory needs to catch up with practice, you know that something powerful is going on. At a time when the old structures and narratives simply are not working, the commons gives us many reasons to be hopeful.

THE COMMONS, SHORT AND SWEET

THE COMMONS IS:

       A social system for the long-term stewardship of resources that preserves shared values and community identity.

       A self-organized system by which communities manage resources (both depletable and and replenishable) with minimal or no reliance on the Market or State.

       The wealth that we inherit or create together and must pass on, undiminished or enhanced, to our children. Our collective wealth includes the gifts of nature, civic infrastructure, cultural works and traditions and knowledge.

       A sector of the economy (and life!) that generates value in ways that are often taken for granted — and often jeopardized by the Market/State.

There is no master inventory of commons because a commons arises whenever a given community decides it wishes to manage a resource in a collective manner, with special regard for equitable access, use and sustainability.

The commons is not a resource. It is a resource plus a defined community and the protocols, values and norms devised by the community to manage needed resources. Many resources — such as the atmosphere, oceans, genetic knowledge and biodiversity — urgently need to be managed as commons.

There is no commons without commoning — the social practices and norms that help a community manage a resource for collective benefit. Forms of commoning naturally vary from one commons to another because humanity itself is so varied. And so there is no “standard template” for commons, just shared patterns and principles. The commons must be understood, then, as a verb as much as a noun. A commons must be animated by bottom-up participation, personal responsibility, transparency and self-policing accountability.

One of the great, unacknowledged problems of our time is the enclosure of the commons, the expropriation and commercialization of shared resources, usually for private market gain. Enclosure can be seen in the patenting of genes and life-forms, the overextension of copyright law to lock up creativity and culture, the privatization of water and land, and attempts to transform the open Internet into a closed proprietary marketplace, among many other enclosures.

Enclosure is about dispossession. It privatizes and commodifies resources that belong to a community or to everyone, and dismantles a commons-based culture (egalitarian coproduction and cogovernance) with a market order (money-based producer/consumer relationships and hierarchies). Markets tend to have thin commitments to localities, cultures and ways of life; for any commons, however, these are indispensable.

The classic commons are small and focused on natural resources; an estimated two billion people depend upon commons of forests, fisheries, water, wildlife and other natural resources for their everyday subsistence. But other types of commons exist in cities, at universities and as infrastructure and social traditions. One of the most robust classes of commons is based on the Internet and digital technologies, which enable commoners to create valuable bodies of shared knowledge and creative works.

The contemporary struggle of commoners is to find new structures of law, institutional form and social practice that can enable diverse sorts of commons to work at larger scales; to protect their resources from market enclosure; and to ensure the generative power of their commons.

New commons forms and practices are needed at all levels — local, regional, national and global — and there is a need for new types of federation among commoners and new linkages between different tiers of commons. Transnational commons are especially needed to help align governance with ecological realities and serve as a force for reconciliation across political boundaries. To actualize the commons and deter market enclosures, we need innovations in law, public policy, governance, social practice and culture. All of these endeavors will give rise to a very different worldview than the one that now prevails in established governance systems, particularly those of the State and Market.

THE LOGIC OF THE COMMONS AND THE LOGIC OF THE MARKET

This chart, by Silke Helfrich, first appeared in The Wealth of the Commons: A World Beyond Market and State (Levellers Press, 2012). It is licensed under a Creative Commons Attribution-ShareAlike 3.0 license.

FURTHER READING ON THE COMMONS

Markets, Economics and Commons

Ackerman, Frank and Lisa Heinzerling, Priceless: On Knowing the Price of Everything and the Value of Nothing (New Press, 2004).

Alperovitz, Gar and Lew Daly, Unjust Deserts: How the Rich Are Taking Our Common Inheritance (New Press, 2008).

Barnes, Peter, Capitalism 3.0: A Guide to Reclaiming the Commons (Barrett–Koehler, 2006).

Bollier, David, Silent Theft: The Private Plunder of Our Common Wealth (Routledge, 2002).

———, This Land Is Our Land: The Fight to Reclaim the Commons [DVD] (Media Education Foundation, 2010).

———, and Silke Helfrich, editors, The Wealth of the Commons: A World Beyond Market and State (Levellers Press, 2012). Available at wealthofthecommons.org.

Frank, Robert, One Market Under God: Extreme Capitalism, Market Populism and the End of Economic Democracy (Doubleday, 2000).

Hardt, Michael and Antonio Negri, Commonwealth (Harvard University Press, 2009).

Harvey, David, A Brief History of Neoliberalism (Oxford University Press, 2005).

Heller, Michael, The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation and Costs Lives (Basic Books, 2008).

Korten, David, Agenda for a New Economy: From Phantom Wealth to Real Wealth (Berrett-Koehler, 2010).

Kuttner, Robert, Everything For Sale: The Virtues and Limits of Markets (Knopf, 1997).

Nomini, Donald, editor, The Global Idea of ‘the Commons’ (Berghahn Books, 2007).

Patel, Raj, The Value of Nothing: How to Reshape Market Society and Redefine Democracy (Picador, 2009).

Penalver, Eduardo Moises and Sonia K. Katyal, Property Outlaws: How Squatters, Pirates and Protesters Improve the Law of Ownership (Yale University Press, 2010).

Radin, Margaret Jane, Contested Commodities (Harvard University Press, 1996).

Rose, Carol M., Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (Westview Press, 1994).

Sandel, Michael, What Money Can’t Buy: The Moral Limits of Markets (Allen Lane, 2012).

Schroyer, Trent, Beyond Western Economics: Remembering Other Economic Cultures (Routledge, 2009).

Wall, Derek, The Sustainable Economics of Elinor Ostrom: Commons, Contestation and Craft (MIT Press, 2014).

Walljasper, Jay, All That We Share (New Press, 2011).

The Social and Cultural Dynamics of Commons

Benkler, Yochai, The Penguin and the Leviathan: The Triumph of Cooperation Over Self-Interest (Crown Business, 2010).

Bowles, Samuel and Herbert Gintis, A Cooperative Species: Human Reciprocity and Its Evolution (Princeton University Press, 2011).

Cahn, Edgar and Jonathan Rowe, Time Dollars (Emmaus, PA: Rodale Press, 1992).

Gintis, Herbert, Samuel Bowles et al., Moral Sentiments and Material Interests: The Foundations of Cooperation in Economic Life (MIT Press, 2005).

Hyde, Lewis, The Gift: Imagination and the Erotic Life of Property (Vintage Books, 1979).

Kropotkin, Petr, Mutual Aid: A Factor of Evolution (Boston: Porter Sargent Publishers/ Extending Horizons Books, reprint of 1914 edition).

Linn, Karl, Building Commons and Community (Oakland, CA: New Village Press, 2007).

Sennett, Richard, Together: The Rituals, Pleasures and Politics of Cooperation (Yale University Press, 2012).

The Commons in History

Alexander, Gregory S., Commodity and Propriety: Competing Visions of Property in American Legal Thought, 1776–1970 (University of Chicago Press, 1997).

Federici, Silvia, Caliban and the Witch: Women, the Body and Primitive Accumulation (Autonomedia, 2004).

Hill, Christopher, The World Turned Upside Down: Radical Ideas During the English Revolution (Penguin, 1972).

Hyde, Lewis, Common as Air: Revolution, Imagination and Ownership (Farrar, Strauss and Giroux, 2010).

Linebaugh, Peter, The Magna Carta Manifesto: Liberties and Commons for All (University of California Press, 2008).

Polanyi, Karl, The Great Transformation: The Political and Economic Origins of Our Time (Beacon Press, 1944, 1957).

Wall, Derek, The Commons in History: Culture, Conflict and Ecology (Routledge, 2014).

Knowledge and Digital Commons

Aufderheide, Patricia and Peter Jaszi, Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago Press, 2011).

Benkler, Yochai, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press, 2006).

Bollier, David, Brand Name Bullies: The Quest to Own and Control Culture (John Wiley, 2005).

———, Viral Spiral: How the Commoners Built a Digital Republic of Their Own (New Press, 2009).

Boyle, James, The Public Domain: Enclosing the Commons of the Mind (Yale University Press, 2008).

Ghosh, Rishab Aiyer, CODE: Collaborative Ownership and the Digital Economy (MIT Press, 2005).

Klemens, Ben, Math You Can’t Use: Patents, Copyright and Software (Brookings Institution Press, 2006).

Krikorian, Gaelle and Amy Kapczynski, Access to Knowledge in the Age of Intellectual Property (Zone Books, 2010).

La Follette, Laetitia, Negotiating Culture: Heritage, Ownership and Intellectual Property (University of Massachusetts Press, 2013).

Lessig, Lawrence, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (Penguin Press, 2004).

Ostrom, Elinor and Charlotte Hess, Understanding Knowledge as a Commons: From Theory to Practice (MIT Press, 2007).

Patry, William, Moral Panics and the Copyright Wars (Oxford University Press, 2009).

Suber, Peter, Open Access (MIT Press, 2012).

Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York University Press, 2001).

Natural Resource Commons

Barnes, Peter, Who Owns the Sky? Our Common Assets and the Future of Capitalism (Washington, D.C.: Island Press, 2001).

Buck, Susan J., The Global Commons: An Introduction (Washington, D.C.: Island Press, 1998).

Burger, Joanna, Elinor Ostrom et al., Protecting the Commons: A Framework for Resource Management in the Americas (Island Press, 2001).

Cooper, Melinda, Life as Surplus: Biotechnology and Capitalism in the Neoliberal Era (University of Washington Press, 2008).

Davey, Brian, Sharing for Survival: Restoring the Climate, the Commons and Society (Foundation for the Economics of Sustainability, 2012).

Dolsak, Nives and Elinor Ostrom, The Commons in the New Millennium: Challenges and Adaptations (MIT Press, 2003).

Donahue, Brian, Reclaiming the Commons: Community Farms and Forests in a New England Town (Yale University Press, 1999).

Freyfogle, Eric T., The Land We Share: Private Property and the Common Good (Island Press, 2003).

McKay, Bonnie J. and James M. Acheson, The Question of the Commons: The Culture and Ecology of Communal Resources (University of Arizona Press, 1987).

National Research Council, Elinor Ostrom, Thomas Dietz et al., The Drama of the Commons: Committee on the Human Dimensions of Global Change (National Academy Press, 2002).

Ostrom, Elinor, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge University Press, 1990).

Shiva, Vandana, Biopiracy: The Plunder of Nature and Knowledge (South End Press, 1997).

Steinberg, Theodore, Slide Mountain, or the Folly of Owning Nature (University of California Press, 1995).

Waldby, Catherine and Robert Mitchell, Tissue Economies: Blood, Organs and Cell Lines in Late Capitalism (Duke University Press, 2006).

Weston, Burns H. and David Bollier, Green Governance: Ecological Survival, Human Rights and the Law of the Commons (Cambridge University Press, 2013).

Special Types of Commons

Bollier, David and Laurie Racine, Ready to Share: Fashion and the Ownership of Creativity, with DVD (USC Annenberg School/Norman Lear Center, 2006).

Brown, Michael F., Who Owns Native Culture? (Harvard University Press, 2003).

Frischmann, Brett M., Infrastructure: The Social Value of Shared Resources (Oxford University Press, 2012).

Hallsmith, Gwendolyn and Bernard Lietaer, Creating Wealth: Growing Local Economies with Local Currencies (New Society Publishers, 2011).

McSherry, Corynne, Who Owns Academic Work? Battling for Control over Intellectual Property (Harvard University Press, 2001).

Shuman, Michael H., Going Local: Creating Self-Reliant Communities in a Global Age (Routledge, 2000).

Van Abel, Bas, Lucas Evers et al., Open Design Now: Why Design Cannot Remain Exclusive (The Netherlands, Bis Publishers, 2011), available at opendesignnow.org.

Washburn, Jennifer, University, Inc: The Corporate Corruption of Higher Education (Basic Books, 2005).

LEADING WEBSITES ON THE COMMONS

Bollier.org

Bollier.org

Commons Abundance Network

commonsabundance.net

Commons Atlas

commonsparkcollective.org/index.php/about/

CommonsBlog (Germany)

commonsblog.wordpress.com

The Commoner (U.K.)

commoner.org.uk

Commons.fi (Finland)

commons.fi

Creative Commons

creativecommons.org

Digital Library of the Commons

dlc.dlib.indiana.edu

FreeLab (Poland)

freelab.org.pl

Free Software Foundation

fsf.org

Global Commons Trust

globalcommonstrust.org

Int’l Assn for Study of the Commons

iasc-commons.org

Int’l Journal of the Commons

thecommonsjournal.org

Keimform (Germany)

keimform.de/category/english

Knowledge Ecology Int’l

keionline.org

New Economics Foundation

neweconomics.org

OER Commons

oercommons.org

On the Commons

onthecommons.org

Ouishare

ouishare.net

Philippe Aigrain (France)

paigrain.debatpublic.net

P2P Foundation

p2pfoundation.net

Real World Economics Review

paecon.net/PAEReview

Re:Commons (Italy)

recommons.org

Remix the Commons

remixthecommons.org

Science Commons

creativecommons.org/science

Shareable Magazine

shareable.net

Solidarity Economy

solidarityeconomy.net

Stir to Action (UK)

stirtoaction.com

Workshop in Political Theory and Policy Analysis

www.indiana.edu/~workshop

Yes! magazine

yesmagazine.org

ACKNOWLEDGMENTS

It is no exaggeration to say that the writing of this book required the past fifteen years of my life, in which I have intensively studied the commons — its workings, political implications, cultural significance and future directions. I cannot possibly thank the hundreds of commoners around the world with whom I have shared instructive encounters. (You know who you are!) So I will single out my dear colleagues and sparring partners who have had so much influence on my thinking and enriched my life: Silke Helfrich, Michel Bauwens, Heike Löschmann and, in the US, Peter Barnes, Jonathan Rowe (1946–2011) and John Richard.

I am especially indebted to Matthieu Calame, Director of the Charles Léopold Mayer Foundation in Paris, for his keen interest in the commons and in commissioning a French translation of this book. My thanks also to Aline Duriez-Jablonka, Director of Editions Charles Léopold Mayer (ECLM) for overseeing the process and for her great patience as I navigated past other commons-related projects in my life. The gracious and erudite Olivier Petitjean of Ritimo, my editor and French translator for ECLM, provided many insightful comments that made this book smarter, deeper and subtler. Olivier, you were a pleasure to work with across the time-space divide.

I also wish to thank Karen Johnston, Charlie Cray, Ricardo Jomarron, Hervé Le Crosnier, John Richard and other readers whose careful review of my manuscript and thoughtful suggestions improved the text. Of course, I assume all responsibility for any errors or omissions.

Since any book is really part of an ongoing conversation, not the last word, I invite future commoners not only to challenge my mistakes, omissions and interpretations as seen from their vantage points, but to take this conversation into new territory that may not have occurred to me. The world of commoning is vast and expanding indeed.

— David Bollier
Amherst, Massachusetts

INDEX

Aboriginal Australians, 131

acequias (New Mexico), 129

advertising, 57

Africa, 131, 153

agriculture, 50

AIDS, 74

Alaska Permanent Fund, 142

Alexander, Christopher, 136

alternative currencies, 133

Amazon (the company), 27

Andhra Pradesh, 11

Angell, Dr. Marcia, 75

Anti-Counterfeiting Trade Agreement (ACTA), 125–126

apples, 49–50

ASCAP (American Society of Composers, Artists and Publishers), 66–67

Australia, 38–39, 41, 131, 154

Austria, 124

bananas, 50

Barbie (doll), 71–71

Barcelona, 58

Bauwens, Michel, 145, 160

Bayh-Dole Act, 74

Bechtel, 48

Belo Monte dam (Brazil), 39

Benkler, Yochai, 115

Berlin, 169

Berne Convention, 68

Berry, Wendell, 155, 156

biocultural protocols (BCPs), 131

biodiversity, 50, 131

biopiracy, 153

biopoetics, 148–149

biotech industry, 74, 106, 107

Blackstone, William, 98, 103

blood banks, 78, 133–134

Bolivia, 39, 48, 132, 158

Boston, 17

Boyle, James, 69

Brand, Stewart, 69

Brand Name Bullies, 66

branding of public spaces, 55–56

Brauneis, Robert, 65, 66

Brazil, 39, 48

buen vivir, 158

Caffentzis, George, 94

Cairo (Egypt), 58

Caliban and the Witch, 91

Camberwell Common Trust,

Cameron, David, 162

Campbell Soup, 72

capitalism, 45, 63, 91, 94–95, 106–107, 137, 140, 159 See also “free market” economics and neoliberalism.

Cecosesola, 137–138

Chakrabarty ruling, 74

Charter of the Forest, 84, 89, 173

Chicago, 62

China, 55, 123

cities, 55–59, 135

Cochabamba (Bolivia), 48

collaborative consumption, 135

collective-action problems, 27

common-pool resources (CPRs), 16, 27, 28–32, 49, 141, 144

commoning, 3, 13, 18, 19, 35, 39, 85, 87, 89–90, 92, 125, 128, 138, 140, 149, 152, 171

commons. See also enclosure.

        and abundance, 107

        “beating the bounds,” 138–139

        benefits of, 3, 4

        businesses embedded in, 136–140

        commons movement, 5, 33–34, 172, 174

        as akin to DNA, 19

        design principles of, 28–31

        and development, 157–159

        digital commons, 113–126, 154

        and dignity, 11, 104, 111

        and drug research, 74

        eco-digital commons, 143

        and economics, 14, 23, 26, 28, 37, 107–109, 150

        ethics in, 133, 134

        feminist history of, 91

        global commons, 143–144, 150

        and governance, 14

        and government, 18, 35, 38

        and history, 12

        and human rights, 104, 111, 151

        and inalienability, 102, 104, 152–153

        large-scale commons, 143, 157

        and localism, 155–157

        and markets, 6, 7, 136–140

        metaphysical dimensions of, 147–155

        natural resource commons, 30, 128–133

        and ontology, 152–153, 164

        vs. open platforms, 115

        parking spaces as commons, 17–18

        and power, 80

        protections against enclosure, 102, 110–111

        social and civic commons, 133–136

        state trustee commons, 141–145

        as stewardship, 102–103, 110, 159

        subsistence commons, 10–11, 32, 34, 44, 88, 89, 91–92, 127, 128–130

        surfing beach as commons, 16–17

        “TK commons” (traditional knowledge), 131

        universities as commons, 72–78

Commons Blog, 167

Commons Sector, 115, 146

commons-based peer production, 115, 140

Community College Consortium

        for Open Educational Resources, 122

community-supported agriculture, 50, 135, 137

Conga mining project (Peru), 39

Congo, Democratic Republic of, 46

cooperation, 80, 81–84, 150

cooperatives, 102, 137–138

copyright law, 35, 65–71

Copyright Term Extension Act, 71

corporate socialism, 63

CouchSurfing, 135

Creative Commons licenses, 1, 102, 114–115, 124, 138

Crisis Commons, 124

Croatia, 57–58

custom, 79, 86, 91, 103

Davis, Wade, 154

De Angelis, Massimo, 41, 94

Deccan Development Society, 9

Democratizing Innovation, 139

Dickens, Charles, 43

Diggers, 100

Digital Library of the Commons, 31

Disneyland, 103

Duthu, N. Bruce, 132

economic development, 157–159

Ecuador, 158

Egypt, 58, 84

enclosures,

        of academic knowledge, 73–77

        of airwaves, 61–62

        of apples, 49–50

        of bananas, 50

        of coffee cafes, 56–57

        costs of, 77

        and dependency, 40–41

        English enclosure movement, 41–45, 88–91

        financialization of nature, 52–53

        of food, 49–51

        government collusion with markets, 38, 40, 45, 59, 63, 77, 141, 145

        of higher education, 72–78

        of highways, bridges and airports, 62

        of infrastructure, 52, 59–63

        of the Internet, 60–61

        of knowledge and culture, 65–78

        of land 45–47

        of languages, 154

        of medical school education, 75

        medieval enclosures, 41–42

        patents on lifeforms, 74, 76

        of social memory, 79

        social effects of, 43, 91–92

        of sports, 55–56

        of urban spaces, 55–64

        of water, 47–49

England, 41–45

“Enlivenment,” 149

entertainment industries, 65–72

Escobar, Arturo, 155

Ethiopia, 27, 46, 158

evolutionary sciences, 81–84, 147–149

Exporting the Alaska Model, 142

externalities, 109

Facebook, 35, 114, 125, 140

Faulkner, William, 63

Federici, Silvia, 91, 94

financial industry, 52–53, 63

fisheries, 35, 106

Folbre, Nancy, 27

food, 49–51

Food of a Younger Land, 50

food sovereignty, 10

free riders, 14, 15

“free market economics,” 46, 48, 108, 151, 170

free software, 6, 30, 114, 116–120

Free Software Foundation, 13

Frischmann, Brett, 72

Fuller, R. Buckminster, 5

General Public License (GPL), 117–120, 138

Genuine Progress Indicator (GPI), 108–109

The Gift, 134

gift economy, 1, 80, 11, 128, 131, 133–135

Global Village Construction Set, 13–14

Goethe, 100

Google, 35, 125, 140

Governing the Commons, 28

GMO crops, 40, 75, 106, 131, 158

GNU project, 12

Green Governance, 143, 160

Green Revolution, 10

Gross Domestic Product, 108–109, 129

Guassa Community-based Conservation Area (Ethiopia), 158

Guthrie, Woody, 67

Hajen, Maarten, 164

“Happy Birthday” (song), 65–66

Hardin, Garrett, 21–24

Hardt, Michael, 94

Harvard University, 74, 121

Hawaii, 16–17

Helfrich, Silke, 7, 98, 140, 168

Heller, Michael, 76

Hewlett-Packard, 119

highways, 62

Hill, Mildred and Patty, 65

Hobbes, Thomas, 81

Hoeschele, Wolfgang, 106–107

Holzer, Jenny, 170

Homo economicus, 26, 81, 104

Howard, Michael W., 142

human genome, 15

Hume, David, 81

Hyde, Lewis, 24–25, 91, 134

IBM, 119

Illich, Ivan, 34, 174

“illth,” 109, 151

India, 9–11, 46

Indiana, 62

Indiana University, 31

indigenous peoples, 11, 30, 41, 87, 102, 105, 127, 130–133, 139, 152–153, 158–159, 161

individualism, 25, 79, 81, 82–84, 91, 132, 151, 153

inequality, 42–45, 81

International Association for the Study of the Commons, 31, 130

Internet, 60–61, 69, 113–126, 134, 145, 163

Istanbul, 58, 169

Italy, 55, 56, 135–136

Johnson, David R., 85, 86

Justinian, Emperor, 87

Kelly, Marjorie, 137

King Henry III, 90

King John, 88–89

King, Dr. Martin Luther, Jr., 101

Klinkenborg, Verlyn, 50

Kommunal Urbanisms Social Charter, 57

Kropotkin, Petr, 82

Kubiszewski, Ida, 108

Kurlansky, Mark, 51

Lakeman, Mark, 168

land, 45, 47, 91, 99, 102

        land grabs, 45–47

        land trusts, 102

Latin America, 39, 48, 133

Lee, Ed, 135

Lessig, Lawrence, 119

liberalism, 7, 151, 173

liberal state, 43, 85, 147, 151, 161, 164, 173

LifeTrac, 124

Linebaugh, Peter, 19, 86, 89, 90, 94, 152

Linux, 12, 75, 78, 114, 118

Linz (Austria), 124

Lipietz, Alain, 173–174

Lloyd, William Forster, 24–25

Locke, John, 24, 81, 104–105, 107

London, 43, 83, 169

Los Angeles, 28

Madagascar, 46

Madison, Michael, 72

Maeckelburgh, Marianne, 154

Magistris, Luigi de, 135

Magna Carta, 84, 89, 90

market culture, 7

market/state duopoly, 5, 7, 77, 92, 93, 143–145

Marx, Karl, 45, 79, 94

Mattei, Ugo, 164

Mattel, 71–72

Mauss, Marcel, 131

McDonald’s, 72

Mena-Quintero, Federico, 136

Menz people, 158

Mexico, 158

Microsoft, 40, 59, 75

mining, 38–39, 142

Mining Act of 1872, 39

MIT, 123

Monsanto, 75

Mutual Aid, 82

naming rights, 55–56

Naples (Italy), 135

Native Americans, 24

NATO, 150

Natural Justice, 131, 138

NBC, 72

Negri, Antonio, 94

Nettle, Daniel, 154

neoextractivism, 39

neoliberalism, 7–8, 23, 93, 158, 165, 170

“net neutrality,” 60

New Mexico, 129

Nordhaus, William, 26

Nowak, Martin, 82, 83

Oaxaca Commune, 158

Occupy movement, 58, 126, 169, 172

Onthecommons.org, 167

open access movement, 120–123

OpenCourseWare Consortium, 123

open design and manufacturing, 13

open educational resources (OER), 123

Open Hardware and Design Alliance, 124

Open Prosthetics Project, 123

Open Source Ecology, 123

open source software, 1, 12, 86, 114, 123 See also free software.

Oracle, 119

Ostrom, Elinor, 17, 26, 27–33, 84, 144

Ostrom, Vincent, 27

P2P Urbanism, 136

Pachamama movement, 133

A Paradise Built in Hell, 83

Parliament (UK), 4, 90

participatory sensing projects, 124

patents, 74–76, 131, 140

peer production, 6, 115

Peer to Patent project, 142

permaculture, 50

Peru, 39, 130

pharmaceutical industry, 74, 153

Philippines, 27

Pickens, T. Boone, 49

“piracy,” 70

Pirate Party, 125, 172

Polanyi, Karl, 44, 91

polycentric governance, 29

Popitz, Heinrich, 98

Potato Park (Peru), 130

price system and value, 108, 109, 132

prisoner’s dilemma experiments, 25–26

private property, 22–23, 27, 73

privatization, 37, 38 See also enclosure.

property rights, 73, 76, 97–111, 126, 132, 153 See also John Locke.

        “allegory of the deck chairs,” 97–99

        and externalities, 109–110

        indigenous peoples and, 102, 132

        individual vs. collective, 102, 104–105

        libertarian view of, 99–100, 101

        labor theory of value, 105

        market biases of, 106

        and scarcity, 106–107

public domain, 70–71, 125, 131

Public Knowledge, 66

“public/private partnerships,” 62–63

public trust doctrine, 45, 88, 93

Pulska Grupa (Croatia), 57, 58

Quilligan, James, 151–152

Rarick, Randy, 16

Reagan, Ronald, 74

regulation, 92–94

“right to the city,” 58

Rio+20 conference, 169

Roman law, 84, 87

Romaine, Suzanne, 154

Rome (Italy), 135

Rose, Carol, 86

Rousseau, Jean Jacques, 107

Ruskin, John, 109

Salingaros, Nikos A., 136

Samuelson, Paul, 26

San people (Africa), 153

San Francisco, 83

Saudi Arabia, 46

School of Commoning (London), 169

Schroyer, Trent, 34

Schultz, Howard, 56–57

seed sharing, 9–11

seeds, 40, 107

Senegal, 15

Shadow Work, 34

Shakespeare, 67

Shareable magazine, 135, 167

“sharing economy,” 125

Shaw, George Bernard, 67

Singh, Rajendra, 168

Slow Food movement, 50, 137, 156

Slow Money movement, 156

Social and Solidarity Economy, 172

socialism, 92

Solnit, Rebecca, 83

South Africa, 55

Stallman, Richard, 13, 116–118

Starbucks, 56–57

Strandburg, Katherine, 72

Stiglitz, Joseph, 26

Stir magazine, 167

subsidiarity, 144

surfing, 16–17

Svampa, Maristella, 39

Sweden, 125

Switzerland, 28

System for Rice Intensification, 158

Teatro Valle (Rome), 135–136

telecommunications, 60–61

terra nullius, 24, 105

Texas, 49

Thatcher, Margaret, 74

Time banking, 133

Torvalds, Linus, 12–14, 118

trademark law, 69, 71–72

traditional knowledge, 131

Traditional Knowledge Digital Library, 131

“tragedy of the anti-commons,” 76

“tragedy of the commons,” 21–26

Transition Town movement, 156, 172

Tricarico, Antonio, 52, 53

Tsosie, Rebecca, 132

Twain, Mark, 67

Twitter, 114

United Kingdom, 162

United Nations, 132, 161

University of Notre Dame, 169

Unix, 12

universities, 72–77, 121–123

urban gardens, 35

US Supreme Court, 74, 76

Venezuela, 138

vernacular spaces, 34–35, 154, 174

vernacular law, 85–86, 103

Verzola, Roberto, 106–107

Via Campesina, 172

Village Voice, 72

von Hippel, Eric, 139

Walker, Isaiah Helekunihi, 16

Wall Street, 26, 62

Walt Disney Company, 70–71

Warhol, Andy, 72

Warner Music Group, 65

water, 28, 47–49, 106

Weber, Andreas, 147–149

The Wealth of the Commons, 6, 169

The Wealth of Networks, 115

Weston, Burns H., 143, 160

Widerquist, Karl, 142

Wikipedia, 1, 13, 78, 86, 114, 139

Wikispeed car, 123

William the Conqueror, 173

Wilson, David Sloan, 82–83

Wilson, E. O., 82–83

Wily, Liz Alden, 47

Winstanley, Gerrard, 100

Wolfpak, 16–17

Workshop in Political Theory and Policy Analysis, 31

World Bank, 48, 159

World Social Forum, 169

World Wide Web, 13, 61, 113, 120, 124, 135, 163

Young India Association, 168

YouTube, 114

Zapitistas, 158

ABOUT THE AUTHOR

Thomas Bollier

DAVID BOLLIER has been exploring the commons as an author, policy strategist, international activist and blogger since the late 1990s. He has written or edited twelve books (sometimes with collaborators), including six on commons-related themes: Silent Theft; Brand Name Bullies; Viral Spiral; The Wealth of the Commons; Green Governance; and now, Think Like a Commoner. The American Academy in Berlin awarded Bollier the Berlin Prize in Public Policy in 2012 for his work on the commons.

Bollier founded and edited the Onthecommons.org website (2003–2010) before cofounding the Commons Strategies Group, an international consulting project that assists the global commons movement. In 2002 he cofounded Public Knowledge, a Washington advocacy organization for the public’s stake in Internet, telecom and copyright policies. Bollier now works on a variety of commons projects with international and domestic partners, and is Editor at ID³, a non-profit tech start-up that is building a “social layer” of protocols for the Internet. He blogs at Bollier.org and lives in Amherst, Massachusetts.

A Guide to Responsible Digital Reading

Most readers understand that buying a book printed on 100% recycled, ancient-forest friendly paper is a more environmentally responsible choice than buying one printed on paper made from virgin timber or old-growth forests. In the same way, the choices we make about our electronic reading devices can help minimize the environmental impact of our e-reading.

Issues and Resources

Before your next electronic purchase, find out which companies have the best ratings in terms of environmental and social responsibility. Have the human rights of workers been respected in the manufacture of your device or in the sourcing of raw materials? What are the environmental standards of the countries where your electronics or their components are produced? Are the minerals used in your smartphone, tablet or e-reader conflict-free? Here are some resources to help you learn more:

      •    The Greenpeace Guide to Greener Electronics

      •    Conflict Minerals: Raise Hope for the Congo

      •    Slavery Footprint

Recycle Old Electronics Responsibly

According to the United Nations Environment Programme some 20 to 50 million metric tonnes of e-waste are generated worldwide every year, comprising more than 5% of all municipal solid waste. Toxic chemicals in electronics, such as lead, cadium and mercury, can leach into the land over time or can be released into the atmosphere, impacting nearby communities and the environment. The links below will help you to recycle your electronic devices responsibly.

      •    Electronics Take Back

      •    Canada - Recycle My Electronics

      •    United States - E-cycling central

Of course, the greenest option is to keep your device going as long as possible. If you decide to upgrade, please give some thought to passing your old one along for someone else to use.

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