Commons presentation at UDC 2007

I have uploaded the text of a speech I gave about the relationship between commons and community. I presented this a few days ago on a panel at the Union for Democratic Communications conference “Enclosure, Emancipatory Communication and the Global City”, held in Vancouver, B.C.


The Ownership of Ideas as Rights or Responsibility

There is a contradiction in how we talk about the ownership of ideas. On the one hand, we speak of property rights over owned ideas (as with copyright and patents); on the other, we talk about shared works – such as free and open source software – having “owners” – by which we mean people who take responsibility for them. Thus, ownership has two distinct meanings: one rooted in rights, the other in responsibility. For physical property, the two are frequently allied; but in the case of creativity and intellectual works, property rights are often the enemy of responsibility.

The Case for Property

There are two main arguments for property rights. The first is that they are natural rights, deriving both from physical possession (I hold the deer, so it is mine) and from the inherent right of an individual to his labor (I killed the deer, so it is mine). Physical possession obviously does not apply to ideas, so I will not pursue that line of reasoning here. And because new ideas are always based on and difficult to disentangle from old ideas, the right to one’s labor is as often in conflict with the ownership of ideas as it is in sympathy with it.

The second argument for property rights is typically framed in economic terms. Because the owner of a thing has exclusive right to the use of that thing, there is an incentive for her to make the best use of it. Ownership captures both the benefits and negative consequences of such use. For example, if I own a pasture it is to my benefit to graze many cattle – but not to over-graze, for if I did the pasture would be ruined. When the land is open for use by all, however, each individual has an incentive to over-use the resource, and it is likely to be ruined.

This second argument is broader and more significant when stated in moral terms: ownership encourages responsibility1. The negative externalities of overgrazing are lessened by ownership, for owners are more prone to take responsibility. Similarly, home ownership is thought to be good for society because owners take better care of their property and their neighborhood than do renters. On the flip side, responsibility can be taken as the basis of ownership. In the case of squatter’s rights, the act of taking responsibility for a piece of land over time becomes the basis for assigning rights over that land.

Unfortunately, property rights can also lessen resposibility. In reality, the things over which we claim rights tend to overlap the boundaries we attempt to build around them, while exclusive rights bar others from interference. Property rights over part of a river, for example, can permit the owner to pollute the river while preventing intervention by others.

The Ownership of Ideas

This difficulty with boundaries is especially applicable to ideas. Furthermore, often the benefit of using ideas arises outside the bounds of what we consider a particular idea or intellectual work. The development of radio technology, for example, was blocked by the patents held by various individuals and corporations. What we think of as a single technology was effectively divided into pieces, each of which was exclusively controlled. It wasn’t until the U.S. government stepped in and forced cooperation that this “tragedy of the anticommons” was overcome and the technology moved forward2.

Thus, property rights may actively discourage the effective use of ideas. A partial explanation may be transaction costs: the cost of implementing those rights can reduce efficiency. So the early failure of radio could be blamed on the cost and complexity of licensing patents Such costs are absent where there are no property rights; the benefits of property rights may be counterbalanced by the costs.

I suspect there is a more powerful explanation. For property rights in ideas erase an essential competitive feature of non-property arrangements – one which has much in common with the market3.

Control and Competition

Ideas aren’t like wheat or pork bellies or timber. They aren’t interchangeable. Because of this, property rights over ideas are monopoly rights. I can own a pile of wheat and not be a monopolist because wheat is also available from others. But if I have exclusive rights to Cinderella (for example), then I am the only source – there is no possibility of competition to provide Cinderella. Some competition does exist, in the form of different ideas, but it is far less than in a market of fungible commodities because ideas are not interchangeable or equivalent. Thus, the exclusive ownership of ideas creates a hierarchy of control, one which is subject to relatively few external pressures.

Ownership, as I have mentioned, also subsists in the commons, though here it is clearly tied to responsibility. An owner of a project, effort, or work in the commons is someone who husbands the process of creation and maintenance: who takes responsibility for it3. While exclusive property rights are legally encoded and enforced, ownership in the commons is socially determined. Because the commons is not exclusively controlled, everyone in the commons benefits from improvements to it. Ownership is the acknowledgement and respect afforded by those who benefit from the responsibility and activity undertaken by the owner.

The key is the tension between the benefits of cooperation and the possibility of division. Members of the commons participate because they benefit from the efforts of others. Cooperation requires coordination, which is supplied by the owner or owners of a given effort. There is a strong incentive to maintain cooperation rather than dividing and duplicating work. Thus the control of the owner is a product of the consent of the other members of the community; that consent can be rescinded if ownership is no longer in their best interests. Competing ownership, or separate projects, can result. Free and open source software developers call this a fork: a situation in which two visions of a piece of software are irreconcilable, producing two separate versions. As a failure of cooperation and consensus it is generally avoided, though it can can also be a source of innovation and an way to resolve with conflict.

Thus, a commons of ideas is managed through the influence of competing interests and responsibility. It bears some resemblance to a market, albeit one without the signaling function of price (nor its tendency to reduce divergent characteristics to a single value) or the investment of capital (activity or responsibility appear to be the closest equivalent).

In contrast, an economy based on ideas as property is more like a hierarchical command economy. Without responsibility, ideas are often underused or wasted4. It is particularly telling that the corporations who favor strong property rights over information seldom institute such arrangements within themselves. Internally, they often result to commons-type arrangements5. The comparison of proponents of the commons to communists is not just inaccurate, it is exactly wrong6. The rights claimed by those who oppose the commons insulate them from responsibility.


1 The pasture example is taken from Garett Hardin’s The Tragedy of the Commons. , which only uses pasture as an illustration of problems with population growth. His argument for the need for either private property or other regulation is often misapplied: the historical commons of land was effectively managed in most cases, and seldom fell prey to the tragedy he describes.

2 The phrase “tragedy of the anticommons” is credited to Michael Heller. See Yochai Benkler’s The Wealth of Networks for details of the relevance to the development of radio (p. 191 in the book or paragraph 350 online).

3 Some have proposed that holding copyright over an idea constitutes ownership in a commons. For example, the creater of a piece of open source software generally retains the copyright while distributing it under an open license. But this is beside the point, because this “ownership” does not confer any special rights on the creator – at least, none within the commons (he could choose to also distribute under a non-open source license, but that’s beside the point). In practice, many successful projects (such as Linux) often have multiple creators and a tangle of ownership, so that dual licensing is difficult or impossible. In general, therefore, copyright in the commons is not a useful or consistent basis for a concept of “ownership”.

4 Lawrence Lessig’s heartbreaking description in Free Culture of the 90-odd percent of old films decaying into nothingness as they sit moldering in vaults only drives the point home.

5 They even justify mergers on the basis of “synergy” – the merged companies can now share each others’ ideas more efficiently. With no economies of scale for creativity or thought, the consolidation of firms that produce ideas implies the inefficiency of property rights in ideas.

6 My appropriation of the language of the Right – ownership, responsibility, markets, competition – is quite deliberate. Too often proponents of the commons have been called “communists” by those who favor strict regimes for “intellectual property”, while the reality is that the ownership of ideas by corporations often goes hand-in-hand with centralized control and planning that would not be out of place in the Soviet Union.


Owned Ideas are Different Ideas

When ideas are property, the ideas we have are different than when they are not. If we look for peer production to produce the same familiar novels, music, and films that arise from proprietary production, we are bound to be disappointed. Worse, we will be blind to the different qualities of works produced in the commons, and to the engagement, the community, and the self-development that take place there.

For ideas to be made into property, they must be transformed. Creative and intellectual works never stand alone: they are always interwoven with other ideas. Yet property must be bounded. We must determine what is part of the property, and what is not. When a novel is owned, we must disentangle it from other novels, stories, and ideas in order to be able to say which words are within the novel, and which are without it.

The enclosures of physical land in England illustrate how the bounding of property changes the thing. “Enclosure” is not just a figure of speech: the enclosure laws of the 18th and early 19th centuries required land owners to physically separate their land by building fences. Some could not afford the expense, and had to sell their property. Land ownership became concentrated; villages changed and disappeared. The land was physically different before and after enclosure. When a similar change took place in the Oklahoma territories, a Pueblo chief found himself lost in a landscape he knew. Enclosed land was not only managed differently, it was a different sort of land.

When ideas are not owned, they are slippery. They overlap and interpenetrate one another. Each contains parts of others. Stories share themes, characters, motifs; sometimes there are multiple conflicting versions of the same story. The interconnection of ideas spans time as well: ideas change as they are passed on; stories are retold, altered, added to.

When ideas are owned, their forms must be frozen. What had been amorphous ideas and culture become individual works. A story must be captured in a novel; a piece of music in a composition or a performance. One version or form is authoritative; others are secondary or simply not permitted.

We can predict that the ideas produced under these conditions will be different. We can predict, without ever seeing Microsoft Windows, that it will not be like Linux. In fact, such predictions are common – like claims that free and open source software1 is inherently more secure and more bug-free because it is open to examination by more people, or that software produced in the commons is merely imitative of that produced elsewhere.

But the differences go deeper than that. Even when we do have Linux on one hand and Windows on the other, how do we compare them? Which version of Linux should be compared? Microsoft takes years to release a new version of Windows; there is a new Linux every day. What is Linux anyway? Is it “Linux”, an operating system kernel, or “GNU/Linux”, an operating system with the software to make it useful?

We can anticipate, without ever reading Encyclopedia Britannica, that it will not be like Wikipedia. Some people praise Wikipedia for its scope and its ability to include up-to-the-minute information about the world; others criticize it for the anonymity, lack of authority or credentials of its authors, the constant change that allows an article to say one thing one minute, and something else the next. They all agree that Wikipedia and Britannica will always be different.

The products of the commons are not like the products of proprietary production. And when we try to find the “work” – the novel, the album, the film – we find it slippery, hard to name, hard to locate. If we try to pin it down, we will change it – and we will miss what else is happening.

Commons activity takes place in a community; the product itself may or may not be the most important thing. Participating, people express themselves, develop themselves, build relationships. The concept of a “work” is problematic, because it is always dynamic. It stops changing only when the community that sustains it drops away. When an open source project ceases to change, we call it abandoned, dead. If no-one edited Wikipedia, it would not be Wikipedia any more; the experience of reading Wikipedia is inseparable from the continuous process of its creation.

And so, if we go looking for novels, for songs or albums, for feature films in the commons, and expect to find the proprietary works we are familiar with, we will not find what we are looking for. If we judge the value of peer production by its ability to reproduce the past, we will find it wanting – we may even block it or ban it for violating the boundaries we place around proprietary works. If, on the other hand, we seek out the commons for what it is, not what it is not, we will find people talking to people, expressing themselves, developing their abilities. Yes, we will find works, though they may not be like the works we are familiar with. But we may find, finally, that what we do in the commons is just as important as what we produce.


1 The term “open source” refers specifically to the peer production of software, while “free software” encompasses the moral implications of openness and freedom. However, I use the term “open source” here and elsewhere, even though I implicitly argue for the freedom of free software, because it is concise while lacking the ambiguity of “free software”, and because my argument applies to it even when consciousness of the moral dimension is lacking.


Production in Communities or Networks?

In Software and Community in the 21st Century, Eben Moglen suggests that “in the twenty-first century the most important activities that produce occur not in factories, and not by individual initiative, but in communities held together by software.” This is a big claim that captures the importance of software and commons production in the world we live in.

Moglen’s Community Production

What does Moglen mean by production taking place in communities? The obvious interpretation, supported by his discussion of the importance of steel in the 20th century, is that 21st century economies rely on software and are organized around communities rather than hierarchies. His example of eBay transactions, for instance, is a clear example of online communication supporting economic production (claims for community are something else, an issue I will turn to later). But Moglen means something more than this. Economic production, after all, is supposed to produce goods – to fulfill human needs and wants, and to help people develop their potential. So when a system like MySpace provides emotional support to an alienated teen, as Moglen describes, that is also production:

We are making communities that produce good outputs and other people are looking at them as business models where eyeballs are located.

When production is defined this broadly to include the social integration of individuals and the construction of community itself, then the claims that they are the most important forms of production and that they happen mainly in communities are easy to defend. After all, community, its norms, the social capital of its members, and its ability to reason and act from shared values and understandings, are the foundation of other human activity, including that which occurs in the market.

The claim becomes much bolder in its obvious relation to conventional economic production. If software is the basis for most production, from automobiles to television shows, and if that software is most efficiently produced by free and open source communities, then the claim is supportable. But what about communities producing things other than software? Will cars be made by communities rather than by hierarchical corporations?

Castells’s Networks

Hierarchical corporations are giving way to more distributed networks, as Manuel Castells details in The Rise of the Network Society. Modern communication technology, enabled by software, has enable production to be broken down and outsourced or subcontracted: design in California, phone support in Nova Scotia, marketing in London, fabrication in Taiwan, and so on. As Castells describes these networks, they only include and exclude individuals and organizations according to the ability to help the network achieve its goals. For example, a manufacturer from Taiwan may be excluded from the network to be replaced by a cheaper one from Vietnam. A contractor may be hired temporarily to fix a problem, then let go when the problem is solved.

Castells’s characterization is familiar – obvious even. Yet Castells is not talking about communities. Indeed, he contrasts the logic of networks, with their tenuous connections to places and people, with the human need for attachment and identity. The networks are everywhere, but they are nowhere; their power and behavior is disconnected from people living their everyday lives.

This is a sobering alternative to Moglen’s optimism for community production. The same software that builds community and human relationships can also be used to build impersonal networks, whose efficient production is taking place anywhere but in communities.

Ideas and Community

The network is an efficient arrangement for producing cars, computers, sneakers, and so on. But cars, computers, and sneakers are not the most important products of the 21st century. Ideas are: software obviously, but also biotechnology, music, movies, education, democracy, the market, religious fanaticism. And these things are produced in communities, and in our time those communities are, to greater or lesser degree, held together by software.

And, I might add, by commons regimes. It is important that the software not be owned, because software is infrastructure – it magnifies the value of everything based on it, and that magnification is greatest when software is free. Ideas are also infrastructure. They are based on other ideas: scholarly research proceeds from earlier research, music samples and is inspired by other music and traditions, education captures the learning of humanity throughout our history, democracy is built on reason and tradition.

The process in which ideas are built on others takes place above all in communities. The fixed forms of ideas – the software source code, the journal article, the roll of film, the constitution, the religious text – are never and can never be complete. Their meaning exists partly within them, even more in the minds and relationships of the people who from the community that surrounds them. If all we had were the physical embodiments of our ideas, the greater part of them would be lost to us1. They would be as dead to us as is Latin or the worship of Baal.

I think Moglen is right that the important production of the 21st century takes place in communities. It is necessary, however, to place his claim in the context of the production of ideas, lest it become a Utopian but futile hope in the face of globalized networks of production. And it is necessary to understand how such production works so we can support it happening and deliver goods that benefit human beings.


1 I believe Jane Jacobs describes just such a scenario of cultural loss in the first chapter of Dark Age Ahead (a book I found otherwise disappointing).


Using Free Software to Look for Freedom

Eben Moglen’s Software and Community in the 21st Century speech is brilliant. I have been thinking about the relationship between commons production and community for some time now. I believe a commons of ideas underpins democracy and is important for community and identity. It is inspiring to see someone take those themes and extend them to social justice in general. It is thrilling to see the developer community at large (me included) waking up to the political implications of what they care about and what they do.

Is Moglen’s vision just a beautiful idea, or will it really happen? Free software can bring justice to the world: “We have a third way in our hands for dealing with long and deep and painful problems of human injustice . . . for the first time in lifetimes, we can get it done.”

Moglen is an optimist. I am a pessimist. Two decades ago I dreamed computers would make the world a better place. And they did. And the reaction to them, the increasing control of ideas at the same time as the tremendous expansion of information and knowledge, is threatening to make it a worse place than before we started. For me, free software isn’t the tool we can use to solve the world’s problems – though I’m sure it can help. It is, above all, the defense we need to save ourselves.

The increasing control of ideas. Yes, I know, you can download any song any time on the Internet. You can watch television. You can debate politics, you can join an activist group, organize a protest. All this is true. You can also smoke a joint if you want to, or trip on LSD, or pop some E and dance all night. And the ecstasy might be pure, and you might be in good company for the trip, and you might not get busted for the Mary Jane. But if you’re some old guy with cancer, and the dope dulls the pain, you could be out of luck. And if your the parent, and your kid gets caught licking stamps, he might not be able to get a passport, or a job, or if you live in the wrong place they might seize your car or if you leave some in your luggage they might even kill you.

The question isn’t what you can or cannot do. When speech is illegal – and that’s exactly what proprietary expression is when you’re not alowed to copy it, or comment on it, or embed in technology – people don’t speak. Or they don’t all speak (only the ones who know how to crack the encryption on a DVD), or they only speak to their friends, or they say something different than what they would like to have said, or they say it anyway and they break the law. I don’t only mean they violate it, I mean they damage the contract on which our society depends. (If they obey the law, that can break it too; broken laws break themselves.)

I’m not suggesting doing drugs. I’m not suggesting those drugs are good or safe, or that you should take them. I don’t know; I’ve never tried any of those things. It’s sad I feel the need to say that, but I might as well: it’s true. And I’m not suggesting infringing copyright. I’m saying the law matters. When information is digital, communication becomes copying. If that copying is illegal, the law starts to break. When the law is wrong, there is no right answer. And that breaks the public space of ideas on which democracy depends. It breaks the contract between governors and governed. It breaks the relationships that make community.

That’s why we need free software. It’s so embeded in our technological infrastructure that it’s impossible to ignore. And because it can’t be locked down, or it’s hard to lock down, it has become the basis for so much communication – so much copying – that that can’t be ignored either. Copyright has a business case – though it grossly oversteps the business case, though it is questioned by economists and artists alike – despite that, it is on the business case that it is judged. So if copyright affects speech, then speech needs a business case too. Free software makes that case. With every blog post; every Wikipedia article; every modification some programmer makes to an application because it’s what she wants, not what Hollywoods wants; with every day that passes, that case gets stronger. Without it, the law would break faster and more intensely than it has done. We leak less freedom when we stand up to speak. We leak less freedom because some software is free.

Moglen is making the argument for what comes after: what we do when we can already speak. He’s also making the argument to get us there. Reacting to the law is no way to build a society. Freedom needs to be more than an alternative to how things are; it needs to be more than a business case. Moglen presents a moral vision of justice because if all we do is present a technical response to the law, all we can expect is a technical change to the law. If we want freedom, we must ask for freedom. Moglen says, “we have been looking for freedom for a very long time”. I think we will continue looking for freedom for very much longer. We must never stop.


Eben Moglen on Free Software and Social Justice

Eben Moglen, lawyer with the Free Software Foundation, gave a keynote address at the October 2006 Plone conference in Seattle. The video, by Grace Stahre, the ONE/Northwest & The Plone Community, and Versant Media, can be seen at YouTube or downloaded from (Unfortunately YouTube and QuickTime both require the use of proprietary software, so I am looking into alternative formats for the video1). He explains the economic reality and moral justification for free software, and its role in the struggle for human freedom historically and in society at large. His presentation is inspiring; I highly recommend watching it. I have also transcribed the speech below and apologize for any errors2.

Update: I have written an annotated transcript with explanations of technical terms and some commentary.

Software and Community in the Early 21st Century

I want to talk about the piece of our common lives that Paul is pointing at – these rules, these methods of living together around software. And I want to try and explain what I think their larger moral and economic meaning is. It is both a moral and an economic analysis: it has to be. It began as a moral question. It remains a moral question. But it becomes along the way also a window into the economic organization of human society in the twenty-first century.

If you think about the twentieth century economy out of which we are passing, its primary underlying commodity was steel. The making of steel was the twentieth century’s root activity, and societies measured themselves substantially by their success in producing steel. It was the first sign of the reawakening of Europe as an economic entity after the devastation of the Second World War. What we now think of as the European Union and we thought of for a while as the European Economic Commission and before that as the Common Market began, as you may recall under Jean Monnet, as the coal and iron union to bring back the European Industrial Economy. The Asian Tigers began to claim for themselves rising importance for themselves in the world economy when they began producing noticeable amounts of steel. And when Mao Zedong tried to imagine an alternative form of economic development for the People’s Republic of China in the Great Leap Forward, his best thought was backyard steel furnaces.

So that was how the twentieth century thought about collaboration in the economy: it made steel. And from steel it made the rest of what the twentieth century possessed for the exploration of the environment and the control of nature for human benefit.

The twenty-first century economy is not undergirded by steel. The twenty-first century economy is undergirded by software. Which is as crucial as the underlying element in economic development in the twenty-first century as the production of steel ingots was in the twentieth. We have moved to a societal structure in this country, are moving elsewhere in the developed world, will continue to move throughout the developing economies, towards economies whose primary underlying commodity of production is software. And the good news is that nobody owns it.

The reason that this is good news requires us to go back to a moment in the past in the development of the economies of the West, before steel. What was, after all, characteristic of the economy before steel was the slow persistent motivated expansion of European societies and European economies out into the larger world – for both much evil and much good – built around the possession of a certain number of basic technological improvements, mostly around naval transportation and armament. All of which was undergirded by a control of mathematics superior to the control of mathematics available in other cultures around the world. There are lots of ways we could conceive the great European expansion which redescribed human beings’ relationship to the globe. But one way to put it is they had the best math. And nobody owned that either.

Imagine if you will for a moment a society in which mathematics has become property, and it’s owned by people. Now every time you want to do anything useful – build a house, make a boat, start a bridge, devise a market, move objects weighing certain numbers of kilos from one place to another – your first stop is at the mathematics store to buy enough mathematics to complete the task which lies before you. You can only use as much arithmetic at a time as you can afford, and it is difficult to build a sufficient inventory of mathematics, given its price, to have any extra on hand. You can predict, of course, that the mathematics sellers will get rich. And you can predict that every other activity in society, whether undertaken for economic benefit or for the common good, will pay taxes in the form of mathematics payments.

The productization of knowledge about computers – the turning of software into a product – was, for a short, crucial period of time at the end of the 20th century, the dominant element in technological progress. Software was owned. You could do what you could afford, and you could accomplish what somebody else’s software made possible. To contain within your own organization a sufficient inventory of adaptable software to be able to meet new circumstances flexibly was more expensive than any but the largest organizations seeking private benefit in the private economy could afford to pay.

We are moving to a world in which in the twenty-first century the most important activities that produce occur not in factories, and not by individual initiative, but in communities held together by software. It is the infra-structural importance of software which is first important in the move to the post-industrial economy. It isn’t that software is itself a thing of value – that’s true. It isn’t that applications produce useful end-point activities, or benefit real people in their real lives. Though that’s true. It is that software provides alternate modes of infrastructure and transportation. That’s crucial in economic history terms, because the driving force in economic development is always improvement in transportation. When things move more easily and more flexibly and with less friction from place to place, economic growth results; welfare improvements occur. They occur most rapidly among those who have previously been unable to transport value into the market. In other words, infrastructure improvement has a tendency to improve matters for the poor more rapidly than most other forms of investment in economic development.

Software is creating roadways that bring people who have been far from the center of human social life to the center of human social life. Software is making people adjacent to one another who have not been adjacent to one another. And with a little bit of work, software can be used to keep software from being owned. In other words, software itself can lift the software tax.

That’s where we now are: at that moment, on that cusp. In this neighborhood, at this moment, the richest and most deeply funded monopoly in the history of the world is beginning to fail. Within another few months, the causes of its failure will be apparent to everybody, as they are now largely apparent to the knowledgeable observers of the industry who expect trouble for Microsoft. The very engineering limits of trying to make software that you own work as well as software that the community produces are becoming apparent. It used to be suggested that eventually software produced without ownership relations might achieve superiority beyond that of software produced by proprietary producers. It used to be argued that that might eventually happen. When those of us who have some theoretical experience in this area said, “why do you only think it’s going to happen eventually – it’s happened already”, people had a tendency to point at the monopoly products and show the ways in which they are still, in one way or another, better. “You see, you can’t do it.”

The browser, as we are all aware, is a pretty crummy piece of software. It’s commodity activity now, these browsers. And Microsoft has written some browsers. And they have been working on the browser they just released for years. And now they have announced what their best browser, at present levels of engineering investment, can be. And on the day of its release, it is less good than the unowned competitor. Produced by who? What? Where? When? On the day of its release. What is being seen this week, next week, the week after about Internet Explorer version 7 will soon be seen about operating system kernels, file systems, desktop and window management, and all the other commoditized parts of a client-side operating system at which we are now operating to produce superior software at infinitely lower price. We are still – only partially of course, but we are still a capitalist society. And when someone entrenched, no matter how deeply, is producing overtly inferior goods at three orders of magnitude higher price or infinitely higher price, the event – or the outcome of the event – is obvious.

Ownership of software as a way of producing software for general consumption is going out, for economic reasons. But as I said, the economic insight that we can get from watching the transition from steel to software is far less important than the moral analysis of the situation. The moral analysis of the situation presents where we are now as, if I may borrow a phrase, a singularity in human affairs.

One of the grave problems of human inequality for everyone who has attempted to ameliorate the problem of human inequality – which is most thinkers about the morality of social life – the gravest problem of human inequality is the extraordinary difficulty in prising wealth away from the rich to give it to the poor, without employing levels of coercion or violence which are themselves utterly corrosive to social progress. And repeatedly in the course of the history of our human societies, well-intentioned, enormously determined and courageous people willing to sacrifice their lives for an improvement in the equality of human life have had to face that problem. We cannot make meaningful redistribution fast enough to retain momentum politically without applying levels of coercion or violence which will destroy what we are attempting. And again and again, as Isaiah Berlin and other late 20th century political theorists pointed out, through hubris, through arrogance, through romanticism, through self-deception, parties seeking permanent human benefit and an increase in the equality of human beings have failed that test and watched as their movements of liberation spiraled downward from the poison of excess coercion.

We do not have to do that anymore.

The gate that has held the movements for equalization of human beings strictly in a dilemma between ineffectiveness and violence has now been opened. The reason is that we have shifted to a zero marginal cost world. As steel is replaced by software, more and more of the value in society becomes non-rivalrous: it can be held by many without costing anybody more than if it is held by a few.

In the English-speaking world (and it was primarily in the English-speaking world: in Scotland, in North America, at the outer edges of the British Empire) we moved towards a system of universal public education in the course of the eighteenth and nineteenth centuries. Protestant North Europe moved over a lengthier period of time in a similar direction, but universal public education still had to be conducted on the basis of knowledge that could not be indefinitely duplicated.

Books are the first mass-produced article in Western society. They are the cheapest method of making large amounts of information available by broad public access available in analog technology. And they are still grossly expensive, difficult to move, cumbersome to keep and catalog and maintain, and very difficult for people to have access to who are not already located in socially central places. They are also vulnerable, as anybody who remembers the burning of the Sarajevo library will recall vividly. It takes a day with contemporary technology to destroy the libraries it takes centuries to build. And in times of great social stress, libraries burn.

Now we live in a different world, for the first time. All the basic knowledge, all the refined physics, all the deep mathematics, everything of beauty in music, in the visual arts, all of literature, all of the video arts of the twentieth century can be given to everybody everywhere at essentially no additional cost beyond the cost it required to make the first copy.

And so we face, in the twenty-first century, a very basic moral question. If you could make as many loaves of bread as it took to feed the world, by baking one loaf and pressing a button, how could you justify charging more for bread than the poorest people could afford to pay? If the marginal cost of bread is zero, then the competitive market price should be zero too. But leaving aside any question of microeconomic theory, the moral question, “What should be the price of what keeps someone else alive if it costs you nothing to provide it to them”, has only one unique answer. There is no moral justification for charging more for bread that costs nothing than the starving can pay. Every death from too little bread under those circumstances is murder. We just don’t know who to charge for the crime.

We live there now. This is both an extraordinary achievement and a very pressing challenge. There were good reasons after 1789 to be a little doubtful about the wisdom of revolution. Because revolution meant coercive redistribution likely to spiral downward in the well-known way. In the economy of steel, people who make steel become workers. They have little individuality. They are reckoned as workers in an industrial army. And as Marx and others like him pointed out in the middle of the nineteenth century, that is largely likely to lead to the model internally of political progress through a clash of armies. We don’t live there anymore.

We find ourselves now in a very different place. You live there, I live there, my other clients live there. It’s a place in which the primary infrastructure is produced by sharing. The primary technology of production is unowned. The effectiveness of that mode of production in the broader society is now established. Plus or minus the couple more years left before Microsoft fails entirely, we have now proven either the adequacy or final superiority in crass economic terms of the way we make things. We have brought forward now the possibility of distributing everything that every public education system uses freely everywhere to everyone: true universal public education for the first time. We have shown how our software, plus commodity hardware, plus electromagnetic spectrum that nobody owns, can build a robust, deep, mesh-structured communications network which can be built out in poor parts of the world far more rapidly than the twentieth century infrastructures of broadcast technology and telephones. We have begun proving the fabric of a twenty-first century society which is egalitarian in its nature, and which is structured to produce for the common benefit more effectively than it can produce for private exclusive proprietary benefit. We are solving epochal problems.

We are introducing new possibilities based upon new technological arrangements to deal with the fundamental political difficulties that we have coped with, and our predecessors in seeking equality and justice have coped with, for generations. We are very lucky. We live at a time when technological progress and the pressure for human justice are coming together in a way which can produce fundamental satisfactions that have eluded us for centuries. But in that luck there comes responsibility. We need to get it done.

There are other people with other views. We are not everybody. The other views assume that this technology too can be shaped to support hierarchy, that it can be shaped to support ownership, that it can be shaped not only to ignore the moral question I have put forward, but to make that moral question invisible to almost everybody. Forever. The folks on the other side are also very powerful. They look way more powerful than we. They are also quite clear-sighted. They also understand that there is an epochal openness here, and they have no more intention of giving up what they claim as theirs now than they ever have had.

The dystopic possibilities of where we live are non-trivial. If you imagine, right now, a flood of billions of dollars of consumer products moving towards you in containers from the East, containing devices that use all this software we have made, but lock it down so no-one may tinker with it, so that if you try and exercise the freedoms that it gives you, your movies don’t play anymore, your music won’t sing, your books will erase themselves, your textbooks will go back to the warehouse unless you pay next semester’s tuition to the textbook publishers, and so on. The magic of this technology is that it can be used for the great ideal of capitalist distribution: never actually give anybody anything. Just as it can be used for our fundamental purpose, which is: always give everybody everything.

And so in fact, we now find ourselves in a more polarized place than usual. Not because Paris is starving. Not even because the lettres de cachet have grown so horrifying to the population. On the contrary, this population has never been less horrified by putting people in jail without charges and keeping them there forever than it ever has been in the past. The reason that we now face a more than usually polarized circumstance is that the sides that have confronted one another over equality and social justice for generations are now more evenly matched than they have ever been before.

You and I, and the people who came before us, have been rolling a very large rock uphill a very long time. We wanted freedom of knowledge in a world that didn’t give it, which burned people for their relegious or scientific beliefs. We wanted democracy, by which we meant originally the rule of the many by the many, and the subjection of today’s rulers to the force of law. And we wanted a world in which distinctions among persons were based not on the color of skin, or even the content of character, but just the choices that people make in their own lives. We wanted the poor to have enough, and the rich to cease to suffer from the diseases of too much. We wanted a world in which everybody had a roof, and everybody had enough to eat, and all the children went to school. And we were told, always, that it was impossible. And our efforts to make it happen turned violent on their side or on ours many more times than we can care to think for[?].

Now we’re in a different spot. Not because our aims have changed. Not because the objectives of what we do have changed. But because the nature of the world in which we inhabit technologically has altered so as to make our ideas functional in new and non-coercive ways.

We have never, in the history of free software, despite everything that has been said by lawyers and flaks and propagandists on the other side – we have never forced anybody to free any code. I have enforced the GPL since 1993. Over most of that time I was the only lawyer in the world enforcing the GPL. I did not sue because the courts were not the place for the rag-tag revolution in its early stage to win pitched battles against the other side. On the contrary, in the world we lived in only ten or fifteen years ago, to have been forceful in the presentation of our legal claims would have meant failure even if we won. Because we would have been torn to pieces by the contending powers of the rich. On the contrary, we played very shrewdly, in my judgment now as I look back on the decisions that my clients made (I never made them). We played very shrewdly.

When I went to work for Richard Stallman in 1993, he said to me at the first instruction over enforcing the GPL, “I have a rule. You must never let a request for damages interfere with a settlement for compliance.” I thought about that for a moment and I decided that that instruction meant that I could begin every telephone conversation with a violator of the GPL with magic words: We don’t want money. When I spoke those words, life got simpler. The next thing I said was, We don’t want publicity. The third thing I said was, We want compliance. We won’t settle for anything less than compliance, and that’s all we want. Now I will show you how to make that ice in the wintertime. And so they gave me compliance. Which had been defined mutually as ice in the wintertime.

But as all of those of us who are about to live with less ice in the wintertime than we used to will soon know, ice in the wintertime can be good if you collect enough of it. And we did. We collected enough of it that people out there who had money to burn said: “Wait a minute. This software is good. We won’t have to burn money over it. And not only is this software good as software, these rules are good. Because they’re not about ambulance chasing. They’re not about a quick score. They’re not about holding up deep pockets. They’re about real cooperation between people who have a lot and the people who have an idea. Why don’t we go in for that.” And within a very short period of time they had gone in for that. And that’s where we live now. In a world in which the resources of the wealthy came to us, not because we coerced them, not because we demanded, not because we taxed, but because we shared. Even with them, sharing worked better than suing or coercing. We were not afraid. We did not put up barbed wire, and so when they came to scoff, they remained to pray. And now, the force of what we are is too strong for a really committed, really adversary, really cornered, really big monopoly to do anything about.

That’s pretty good work, in a short period of time, that you all did. You changed the balance of power in a tiny way. But when you look at it against the long background of the history of who we are and what we want, it was an immense strategic victory, and not a small tactical engagement. Now, as usual, when you win a small tactical engagement that turns out to be a large strategic victory, you have to consolidate the gains, or the other side will take them back. So we are now moving into a period in which what we have to do is to consolidate the gains. We have to strengthen our own understanding about what our community can do.

I want to go back to the thing I said at the beginning. In the twenty-first century economy, production occurs not in factories or by people but in communities. eBay is a pretty decent way of organizing a community to sell and buy stuff and empty garages, and it is doing a pretty fair job of it. MySpace, Friendster – never mind who owns, never mind what’s intended, never mind the pedophiles and all that stuff – it’s a pretty good way of dealing with an extraordinarily deep and important problem that most societies have to cope with, which is how to give old children becoming young adults some way of experiencing their independent identity in the world. How to give them a way to say, “Here I am. This is what I am. This is what I feel. This is what is going on in my life.” It has produced a lot of bad adolescent poetry. It has produced a lot of risqué photography and self-portraits in states of deshabille. But it is also dealing with a thing which has sometimes been known to cause suicide, and which shouldn’t be taken quite so lightly. It is not a small thing if you feel yourself to be a really isolated teenager living and working in a part of the world that doesn’t understand you at all to know that you can have tens of thousands of people all around the world immediately available to you, who know what you’re feeling and who can provide the kind of support that you need. That’s actually social service work of a very deep and important kind.

We are making communities that produce good outputs and other people are looking at them as business models where eyeballs are located. Up to a point that’s acceptable, and when the tipping point is reached it isn’t anymore. And that’s the kind of activity which is now our political challenge. To understand how to manipulate those processes – as we all can because we make the technology – how to manipulate those processes so as to gain the social benefit and reduce the possibility of power discrepancies developing that neutralize the very kinds of social justice outcomes we are looking for. This is possible to do. It is not only work for lawyers.

Mary Lou Jepsen’s inventions in connection with the display of the One Laptop Per Child box will turn out to be of enormous importance to the world. The One Laptop Per Child box (which I’ve spent a lot of time helping with this past year and which everybody in this room ought to be thinking about hard, because it’s a great moment in human technological history), the One Laptop Per Child box has a few requirements that are really important for computers in the twenty-first century. One: a child has to be able to take it apart safely. Two: you have to be able to generate electricity for it by pulling a string. Three: it has to be culturally accessible to people who live in a whole lot of different places around the world, speak different languages, have different world views, have different understandings of what a computer is or might be or could be or what this thing is that their children are holding. It has to be discoverable. It has to be a place for a child to explore indefinitely and learn new things in all the time.

I just want to concentrate on the first parts: it has to be something you can pull a string to power, and it has to be something a child can take apart safely. No existing LCD panel meets those needs, because every existing LCD panel in the world uses a mercury back-light which runs on high voltage which is dangerous and which contains toxic chemicals (the mercury itself of course). So how about a display which gives you transmissive color – beautiful color – indoors, and high-contrast black and white in full sunlight, so that it can be used in every natural environment, and which consumes per unit area one tenth of the electricity used by standard current LCD panel displays. How about that it doesn’t have any harmful substances in it, can be safely disassembled and reassembled by a child down to its components so that field replacement of almost anything can occur, and is in addition cheap to manufacture. So we’re going to give an enormous gift to all the cell phone and gadget manufacturers of the world out of OLPC – which is why Quanta, the largest manufacturer of laptops in the world, and the display manufacturers throughout the Pacific Rim are screaming to be first or second sources of the OLPC display. Because the patents in there are worth sharing.

In other words, the free world now produces technology whose ability to reorient power in the larger traditional economy is very great. We have magnets; we can move the iron filings around. We can also change the infrastructure of social life. That OLPC has every textbook on earth. That OLPC is a free MIT education. That OLPC is a hand-powered thick-mesh router. When you close the lid as a kid and put it in the shelf at night, the main CPU shuts down – but the 802.11 gear stays running all night long on the last few pulls of the string. And it routes packets all night long and it keeps the mesh. The village is a mesh when the kids have green or purple or orange boxes. And all you need’s a downspout somewhere, and the village is on the Net. And when the village is on the Net, everybody in the village is a producer of something: services, knowledge, culture, art, YouTube TV.

The week that Rodney King was beaten in Los Angeles, I was on the telephone with a friend of mine who does police brutality cases in Dallas, Texas. And he said to me, “You know what the difference is between Dallas and Los Angeles?” And I said, “I don’t know.” He said, “Fewer video cameras.” That was a long time ago. There’s no place on earth with too few video cameras anymore. The gadget makers took care of that. Now what is journalism like when every village has a video camera and is on the Net? What is diplomacy like? What does it mean if the next time somebody starts some nasty little genocide in some little corner of the Earth the United States Government would prefer to ignore, that there’s video all over the place all the time in every living room. What’s it mean when children around the world are networking with one other over the issues that concern them directly without intermediation, everybody to everybody, saying, “Do you have what we need? How come you have what we need? How come we can’t do what you can do? Because your father’s rich? Because we’re dark? Because we live down here?”

Globalization has been treated up ‘till now as a force which primarily puts ownership in the saddle. Maybe. Maybe. But the One Laptop Per Child seems to me to consolidate some of our strategic gains, which is why I’m in favor of pressing hard for it and things like it.

Now let me come back to the stuff we have in common in this room. Community, I have said – not an original thought – is powerful. The network makes community out of software. But some software is better at producing community than other software. GCC is a really useful thing. But it doesn’t produce community. If anything, GCC has been known to produce the opposite to community. This is not a joke about compiler guys either. The Perl interpreter, which is a fine thing, produces rather little community too, and the community it produces is, shall we say, a little inward-looking. There are other kinds of software which produce community in a very different way – and you know what that’s like because you work on one of those corners. The problem that I have with content management systems is that they’re systems for managing content, which is not very important. Community-building software, however, is very important.

I’m trying to do a little thing this year called making GPL 3, which is actually more about having a lot of discussions with a lot of very different people around the world about what they think free software licensing ought to be like and why they don’t like Stallman. The latter is not the subject I go out to talk about, it’s just what they talk about no matter what I do about it. It’s an attempt to create a kind of broad global community of people who care about a thing they all take very seriously. And they do take it very seriously: you understand when guys fly from Germany to India to participate in their second international conference on GPL 3, you know they really care.

So I’ve been talking to a lot of different people in a lot of different forms, some of them like IRC, some of them produce formal documents, some of them are telephone types. That’s all held together by Plone. That’s many different overlapping communities held together by software for making communities. It’s related to voice over IP through Asterisk, which changes my life as a lawyer completely. Those of you who haven’t discovered what free software can do to IP telephony, you have a great discovery headed your way. And we made a little bit of software of our own for dealing with a thing it turned out there was no existing tool for that we really liked – namely some austere simple interface for marking up one document in a very very very multiplicitous way with tens of thousands of possible commentators, so that everybody participating can see what everybody else has done in some manageable way, and can intervene in the process in a thoughtful fashion tied to some particular word or phrase or piece of a document that concerns them.

Before we started this activity I read lots and lots of commentary that said, as soon as FSF tries to do this it’s going to dissolve into a flame war. As soon as anybody attempts to do this it’s just going to become Slashdot all of the time. It wasn’t like that. It hasn’t been like that. Even Slashdot hasn’t been like that. That’s not the way it went. Of course there was lots of stuff said that I regret; some of it was said by very big people; much of it was said by Forbes[?]. But that wasn’t the problem. The coherence of the community – a community which includes Ubuntu users in Soweto as well as IBM, includes developers in Kazakhstan as well as Hewlett-Packard, includes people who have thousands of patents as well as people who don’t know what a patent is – that conversation has gone, I think, remarkably peaceably and quite constructively for a period now of about ten months.

Twenty years from now the scale of our consultation over GPL is going to seem tiny. The tools we use are going to seem primitive. The community we built to discuss the license is going to seem like a thing a six year-old could put together without taking more than a couple of breathers around it. And yet, that’s only going to be because our sophistication in global coordination of massive social movements is going to be so good. You do not see Microsoft out conducting a global negotiation over what the EULA for Vista should say. And even if they were minded to do it, they couldn’t. Because they’re not organized for community, they’re organized for hierarchical production and selling. I have heard a lot of stuff from people who thought that Richard Stallman was a problem. But ask yourself this: if the GPL process had been run by Steve Ballmer.

So we are learning in very primitive ways within our community how to build large globe-girdling organizations for a special purpose for a short period of time to engage people constructively in deliberation, and we are learning how to do that despite vast cultural and economic discrepancies in the assets of the participants. That’s twenty-first century politics. Plone makes it.

But it isn’t what you have. It’s what you do with it. So we have some remarkable opportunities, all of us. We have a very special place in the history of the campaign for social justice. We have some very special infrastructure. We have new means of economic development available to us. We have got proof-of-concept. We have got running code. That’s all we ever need. But we need prudence. We need good judgment. We need the willingness to take risks at the right places at the right time. We need to be uncompromising about principle even as we are very flexible about modes of communication. We need to be very good about making deals. And we need to be very clear, absolutely clear, without any variance at the bottom line about what the deals are for, where we are going, what the objective is. If we know that what we are trying to accomplish is the spread of justice and social equality through the universalization of access to knowledge; if we know that what we are trying to do is to build an economy of sharing which will rival the economies of ownership at every point where they directly compete; if we know that we are doing this as an alternative to coercive redistribution, that we have a third way in our hands for dealing with long and deep and painful problems of human injustice; if we are conscious of what we have and know what we are trying to accomplish, this is the moment when, for the first time in lifetimes, we can get it done.

We do not need revolutions in which the have-nots dispossess the haves right now. But we’re under pressure. There are a lot of people in the world. There is not a lot extra to eat. There is not a lot of excess clean water to drink. Minds are being thrown away by hundreds of millions in a world where people are trapped in a subsistence crisis that is now avoidable, and their ability to think and create and be is stunted forever. The climate is changing beneath our feet, the air is changing above our heads, and as the fossil fuel system decays, the inequalities and power discrepancies and authoritarianisms that grew up around the oil business in the twentieth century are going to do us real harm. So we have great opportunities, we have great challenges. The upside is the highest it has been in generations and the downside is not too pleasant. That means there’s a great deal of work to be done. Oddly enough, it’s not painful. It consists of doing neat stuff and sharing it. You’ve been successful at it already beyond anybody’s expectations and beyond most people’s dreams. More of the same is a good prescription here. But a little more political consciousness about it and a little more attempt to get other people to understand not just “what” but “why” would help a lot. Because people are getting used to the “what”.

“Oh yeah, Firefox, I use it all the time.”


“Why, cuz Internet…”

“No no no no no. Not why do you use it, why does it exist?”

“Oh I dunno, some people did it.”

That’s the moment, all right, that’s the moment, that’s the one where that annoying Stallman voice should enter the mind, okay. Free As In Freedom, Free As In Freedom. Tell people it’s free as in freedom. Tell them that if you don’t tell them anything else. Because they need to know.

We’ve spent a long time hunting for freedom. Many of us lost our lives trying to get it more than once. We have sacrificed a great deal for generations, and the people who have sacrificed most we honor most when we can remember them. And some of them have been entirely forgotten. Some of us are likely to be forgotten too. And the sacrifices that we make aren’t all going to go with monuments and honors. But they’re all going to contribute to the end. The end is a good end if we do it right. We have been looking for freedom for a very long time. The difference is, this time, we win.

Thank you very much.


1 I would be grateful for the help if anyone is aware of an Ogg version of the video.

2 I have fixed errors as I discover them. Thanks in particular to Michael Fötsch for detailed corrections. I have also altered my introduction, particularly with regards to other formats for the speech.


The Romantic Commons

The historical agricultural commons of England were extinguished in the enclosure movement of the 18th and 19th centuries. Yet the romantic image of rural life has survived, and the story has been repeated – in the genre of the Western, in the idea of the Internet as a frontier. In all of these, the price of the private property replacing the commons has been community and independence.

Let me start with J.M. Neeson’s evocative description of seeing an old film showing men chatting as they shared the work of planting an English common1. Years later she visited the common in person:

. . . when the road dipped down under the railway bridge on the western side of the parish and came up next to the old common, without doubt it invaded an older world. The description of common fields as open fields is entirely appropriate. Distances are shorter when fields are in strips. You can call from one to the next. You can plough them and talk across the backs of the horses at the same time. You can see at a glance whose bit of the hedges or mounds needs fixing, what part of the common ditch is choked with weeds. Standing at the centre of the village feels like standing at the hub of the whole system: the fields spread out around you, the decision to sow one with wheat, another with barley is written on the landscape. For all that individual men and women work their own bits of land, their economy is public and to a large degree still shared.


Neeson writes how the parliamentary enclosure acts stripped the commoners of their rights. Hedges and fences rose up around what had been shared pasture, fields, forest, and marsh. Many commoners had subsisted for centuries on what the commons provided; now they were forced to seek out wage labor. Large numbers end up on the poverty rates, creating the new phenomenon of pauperism.

Before enclosure, many or most commoners were poor but independent. Proponents of enclosure called them “lazy” – by which they meant the commoners had little interest in working for anyone else. This was the winning argument in favor of enclosure: without the benefits of the commons, peasants would be forced to seek wage labor. Neeson explains how every effort was made to prevent the workers from returning to self sufficiency. Even hedges were chosen so as not to bring any benefit, for the people “would still be less inclined to work, if every hedge furnished the means of support.” The wrenching social change was a means to bring both land and labor into the market for the long-term wealth of the nation (and the short-term enrichment of the enclosers).

The market expanded, a new urban proletariat was formed as dispossessed peasants flowed into newly industrial cities. Enclosure was part and parcel of the process by which a new, wealthier society was born. But the price was high: injustice, poverty, and the destruction of communities. Enclosure was a step on the road to modern society – but perhaps not a necessary one. Even today historians and economists debate whether enclosure produced real benefits.


The most well-known explanation of the commons and enclosure (and one that influenced me tremendously as a teenager) is a 1968 essay by Garrett Hardin. The Tragedy of the Commons explains how shared resources are vulnerable to exploitation by self-interested individuals. Hardin was concerned with contemporary overpopulation, not historical agriculture, but his argument has been broadly deployed to support enclosure in particular and private property regimes in general.

The Tragedy model is both common-sense and deeply flawed. Hardin explains the costs and benefits of a user of a common pasture. The land is only capable of providing grazing for a certain number of animals; beyond that, overgrazing ruins the land. It is in the collective interest of users of a commons to ensure this does not occur. For the individual grazer, however, the calculation is different. The benefits of an additional animal all accrue to one person, while the costs are shared by all users of the commons. Thus there is no incentive for individual grazers to restrain their use of the land; overgrazing and ruin is the ultimate result.

Hardin proposes two ways to avoid this. One is centralized control to manage the commons. The other is the institution of private property: then the benefits and costs of managing a given piece of land all flow to the same person. From this analysis, enclosure appears to be the only palatable alternative to a command economy.

In reality, few historical commons – in England at least – were ruined by overgrazing2. The commons existed within and were managed by communities of people with an interest in long-term sustainability. Use of the commons was managed by a variety of means: legal rights, local custom, community norms and rules put in place by the community. When overgrazing did occur, it was often practiced by people outside the community: landlords or large farmers in pursuit of profit, enclosure advocates who had an interest in the failure of the commons. Unsustainable use was particularly frequent in the years before enclosure, when the extinction of the commons was a foregone conclusion. Lords who attempted to overgraze or extinguish commons rights before enclosure were often successfully blocked both by the courts and by the action of commoners. Neeson tells the story of one lord who grew grain in the common; the people broke down his fences and grazed their cattle on his crop, then dared him to sue. He backed down. It took acts of parliament – on the order of 100 per year at the height of enclosure – to overturn centuries of custom and law and extinguish the commons. The greater challenge to the commons wasn’t self-interested overgrazing but self-interested enclosure.


Central to the tragic romance of the commons is the loss of independence. Private property increased the wealth of individuals, but in this case property and individualism brought with them a loss of independence. Communities were dismantled and a way of life came to an end. People experienced a great loss. Neeson writes of the collective and ancestral memory of beef and milk by people who could no longer afford them.

The myth of the lost independence and community of the commons is echoed in the myth of the American frontier3. Films like Shane and Once Upon a Time in the West depicted the independent cowboy and the end of his way of life. In Shane, homesteaders settle the prairie and fence in the open range. Cowboys find themselves obsolete: some fight back, scattering herds and burning homes; the hero Shane defends the settlers, but he cannot be one of them. He knows there is no place for him in this new world.

In Once Upon a Time in the West it is the railway, not farmers, which displaces the cowboys. The cowboys have one last chance to play a role before their horses are supplanted by locomotives. The tracks will stretch from sea to sea; the frontier is closing.

Both metaphors – the commons and the frontier – have been repeatedly applied to the Internet. The connection is made explicit in the names of organizations like the Electronic Frontier Foundation and Creative Commons, echoing in hacker writings like Eric Raymond’s Homesteading the Noosphere. The open source community – as it is called – defines property in distinctly non-private terms as the right to distribute, not the right to exclude. Communities of interest online are oriented around sharing (ideas, feelings, culture) using technology designed for the same (blogs, wikis, forums); the people who compose them are more interested in communication than privacy or control.

The analogy with the historical commons of land is actually inaccurate, for the political, social and economic characteristics of land and ideas are more unlike than like4. On an intellectual level, I am inclined to discard the term “commons” for intellectual works and activities as deceptive. The underlying ethos, however – of community and independence – is the same, as is the threat: absorption by the market in the form of a particular kind of private property. The romance of the commons captures much of what is politically, socially and culturally important about the Internet, indeed about ideas, creativity and communication in general.


1 J.M. Neeson. Commoners: common right, enclosure and social change in England, 1700-1820. UK: Cambridge University Press, 1993.

2 Although the Engish commons were relatively stable, commons tragedies are certainly not uncommon. Overfishing, depletion of soil, destruction of forests and pasture are all problems in the world today. Where communities and governance are weak, or where people doubt the future value of the resource (due to risk, mobility, or fears for survival), it is difficult for commons to survive.

3 In the historical commons, community was the foundation of independence. In many Westerns the cowboy is clearly outside the community of civilization. This is certainly the case in Shane and Once Upon a Time in the West. In my mind, the clearest depiction of this is the ending of Seven Samurai when the peasants turn away from their saviors to sing together in the rice fields. However, though I’m not expert on Westerns or the actual west, I feel the relationship between cowboy and community is more complex and interdependent. The cowboys in The Searchers are certainly rooted in their community, as are the characters of science fiction Westerns like Star Trek and Firefly.

4 An explanation of how and why the analogy fails is outside the scope of this post. Problems with treating information as resources in a commons include its nonexcludable and nonrival (or even antirival) nature, the role of information and price in the market, and difficulties with reification.



I have been subscribed to J.D. Lasica’s blog for some time, so I looked forward to reading his book, Darknet: Hollywood’s War against the Digital Generation1. But despite the rich supply of research and interviews with insiders to the conflict around copyright and piracy, I found the book disappointing and lacking in depth.

For me, Lasica’s best subject was Forest. As a movie pirate and double agent, Forest was paid by Hollywood to infiltrate deep into film sharing networks. In return, he kept his bosses informed of the techniques and activities of the pirates. He is an ambiguous character: on the one hand, he was a spy; on the other, he didn’t necessarily share the perspectives of his masters. Forest is a fascinating character: proud of his skills, of his contacts, of the romance of his double life. Now retired from espionage, he has turned his sights to providing legal downloads. He appreciates why people pirate, and doesn’t believe the practice can be stopped. Of his daughter’s music piracy, he says “I don’t condone her pirating material, but that’s how kids get their music these days2.” At one point he offers Lasica access to his library of pirated movies.

The tension between Forest’s profession and his activities echoes through the book as Lasica searches for a middle way between freewheeling piracy on the one hand and respect for intellectual property and the law on the other. Lasica touches on the major issues: how stopping down copying can shut down creativity, the social acceptance of piracy, the political dimensions of copying as speech. Yet the book seems bounded by conventional discourse about copyright, participation, and creativity. When his subjects raise one of the big questions, Lasica notes it, but he does not deal with the necessary consequences.

The most important failing is the handling of democracy and freedom. For me, democracy is central to the argument for weaker copyright. This is something understood well by other writers on the topic; Yochai Benkler’s The Wealth of Networks stands out in this regard for its emphasis on the essential role of speech in underpinning democracy. The special importance of speech elevates debates about copyright beyond questions of whether music filesharing is right or wrong. Without speech, this is simply another question of economics and policy with no particular claim to political or moral importance.

The book does describe how Diebold, a manufacturer of electronic voting machines in the U.S., used copyright laws to hinder distribution of information about security vulnerabilities in its products3. In this context Lasica quotes Ian Clarke, founder of Freenet (a network used to communicate the problem with Diebold despite the legal problems) saying, “Ultimately, what is more important to you: copyright or freedom of communication, which is essential to democracy4?” This is an essential question without simple answers. But Lasica hardly follows up. Five pages about politics are buried in a chapter about the construction of file sharing networks. Two pages after this quote, the book returns to its focus on movies and music. Politics don’t appear in Lasica’s ten point recommendations at the end. The book claims “the Internet is not an entertainment medium5.” But it doesn’t seem to be interested in what that means.

Similarly, the book fails to investigate the political relevance of art and cultural forms. It discusses the participation of audiences and contrasts consumers with users (but not with citizens). The distinction, however, between users as first-class creators and as second-class contributors to existing industries is blurred. Writing of fan materials, Lasica suggests DVDs should include fan commentaries6. It’s a nice idea, but it only reinforces the subordinate position of the audience. Too often the book’s support of participatory culture and media elides with a sharecropping mentality in which the media industries remain firmly in control. In fact, the promise of revitalizing these industries and their dominant players is a refrain throughout the book. Lasica believes the “media companies need to learn to let go.” The problem, he believes, is not a fundamental difference of interests between companies and citizens, but a misunderstanding on the part of Hollywood and the RIAA who really would be better off if they acquiesced to change that challenges their dominance.

Weak analysis is also a symptom of the book’s treatment of piracy. Piracy is central to darknets – digital networks designed to conceal the activity and identities of their users, typically file sharing. Lasica interviews people with varying perspectives on piracy and its opponents (although artists are largely absent). Some oppose it outright, some attempt to justify it, others accept it as unstoppable. At one point the book explains how the recording industry exploits artists; most musicians likely benefit from file trading. Courtney Love says the whole industry “is based on piracy7“. Yet Lasica himself appends a comments reducing the issue to simple right and wrong: “All of this is not to excuse fans who routinely download music illegally for free. That’s wrong8.”

The problem is that although he repeatedly makes such statements, nowhere does he investigate or justify his stance. There are many good arguments in support of his position against “routine” piracy (about democratic governance and the rule of law, the fact that paying an artist benefits her more than pirating her music, and so on). Lasica never deploys them. Against them stand the amoral behavior of many of the companies involved, the lobbying and influence that led to draconian laws, the enclosure of culture and the dangers to democracy. Lasica doesn’t deal with these either. The problem is not that his position is not legitimate – it is. The problem is that the book fails to be critical and searching in its exploration of the moral issues connected to speech and copyright.

Despite my criticisms, I think at some level Lasica “gets it” – but he doesn’t let on. Perhaps his journalist’s instincts get in the way, leading him to restrict his commentary and tempting him to return repeatedly to the glitter of Hollywood. The contradictions lie latent. Lasica looks at the issues, but he doesn’t see them. Speaking of restrictive technologies and laws, he writes:

In the end, this may be the greatest potential loss to society: the service that never rolls out, the device that never gets invented, the cultural advancement that never takes place – all for fear of a Hollywood lawsuit8.

No. The greatest potential is for citizens to create, to share, and to participate in their society. The greatest potential victim is democracy.


1 J.D. Lasica, Darknet: Hollywood’s War against the Digital Generation, US, Wiley, 2005.

2 p. 65

3 Update 2006-06-19: Oops. I mistakenly credited Darknet with David Bollier’s introduction to Silent Theft when I wrote, “The book starts well, with an excellent description of how one company uses copyright to charge for access to American legal decisions.”

4 p. 227

5 p. 264

6 p. 78

7 p. 194

8 p. 196

9 p. 119


The Future of Creativity

Often people belittle those they disagree with as stupid or irrational. The music and film industries, for example, in their fight to keep music and movies off the Internet, are said to be blind to the wealth the technology offers them. I don’t agree. The entertainment conglomerates are certainly scoundrels. But I think their behavior is perfectly rational.

One classic illustration of the foolishness of their behavior is Jack Valenti’s hyperbolic claim in 1982 that “The VCR is to the American film producer and the American public what the Boston Strangler is to a woman home alone.” The sale of videos went on to become an profitable part of Hollywood’s business, to the point where video sales account for “35-50% of the typical film’s income1.” The Internet seems likely also to enrich and expand opportunities for the entertainment industries. So why are they fighting it?

The answer is that the the industry is not identical with the biggest firms. The tremendous promise of the Internet will be good for entertainment; it may not be good for the dominant players today. When you’re winning the game, changing the rules is not very appealing. So far, the incumbents in these industries have been reasonably successful at hindering change.

A Vision of the Future

Smaller industries with fewer profits, lacking the power to dictate laws or criminalize the behavior of customers, are already changing. I will be drawing evidence from a column by Robin Laws, a roleplaying game (RPG) designer. I recommend reading his piece even if RPGs don’t interest you; it is a fascinating depiction of an industry dying and being reborn in the age of the Internet2. Laws simply asked a number of people throughout the industry, “Is the RPG Industry Screwed?”

For retailers, distributors, and many publishers, the answer seems to be yes. This is a tiny industry – the market is estimated at $25 million, and it has shrunk enormously since its glory days in the 1980s. The market is fragmenting as barriers to entry fall. Potential customers are lured away by trading card games (like Magic: The Gathering and Pokemon) and computer RPGs (like Everquest and World of Warcraft). Retailers are struggling to compete with eBay and Amazon; according to an interviewee in Laws’ article, 40% closed shop in the U.S. in 2005. Many have seen the writing on the wall and are diversifying away from RPGs. Despite all this, no-one is throwing RIAA-style tantrums: there is no war here between an industry and its customers, or even (as far as I know) between the old guard and the innovators.

For players and game designers, however, the answer to Laws’ question is quite different. As traditional publishing becomes uneconomical, game designers are shifting to print-on-demand (e.g. through Lulu) and PDF sales. The RPG industry is a rare field in which PDFs are popular: Laws suggests they are 8-14% of the market and growing3. Designers and publishers are experimenting with ransoming their works. This week, a small RPG company asked players to commit to buy before going ahead and printing a 224-page hardcover book. They achieved their goal of 400-odd patrons in only 48 hours. This diversity and fragmentation causes difficulty for publishers, distributors, and retailers, but it is a boon for designers and players.

What’s Good for General Motors…?

In economic terms, the news looks bad: more people producing smaller print runs of a greater variety of games for less (or no) profit. Bad for GDP, bad for productivity. For existing publishers, distributors, and retailers, this could be the end of their involvement with RPGs. Yet for many people who love the games, this looks suspiciously like the start of a new golden age. Ben Lehman, an independent game designer interviewed by Laws, captures the optimism:

I’m seeing a . . . movement away from the periodical/collector/fandom model of enjoyment, and more towards creative focus and real play. In this respect, and that’s what matters, I think that role-playing is at its healthiest state since the 70s. . . . certain aspects of the role-playing distribution chain are being eclipsed by an economic model that is more effective in both creative and monetary terms, and as a player and designer I just can’t see that as a bad thing.

Laws’ article can be seen as a depiction of a possible future for other creative industries. Spending shrinks as consumption gives way to experience, creativity increases and people have more fun. For the entertainment giants, this is the nightmare scenario. If what is happening to RPGs happens to music and movies, everyone might win. Except them.


1 Janet Wasko, “Show me the money”, A. Calabrese et al., Toward a Political Economy of Culture, 2004, p. 13.

2 RPGs are hardly unique. I believe the comic and wargame industries (among others) have experienced similar pressures and changes.

3 Consumers have objected to DRM and got their way. Despite concerns about piracy, one of the main PDF vendors shifted away from DRM-protected files; now they simply add the buyer’s name to each page of a download.


What is a creative work?

What is a creative or intellectual work? The assumption that the exercise of human creativity and thought produces discreet objects – works – lies at the heart of the concept of intellectual property. Indeed, this is what copyright and other IP laws do: they define parcels of ideas1, then assign rights over those ideas to people. The commons, by contrast, treats intellectual and cultural works as shared entities.

Ideas Are Never Discreet

In reality, ideas are never discreet entities. Even creative works that appear to be separate – such as novels, music albums, or films – are developed from the raw stuff of other culture. Lawrence Lessig illustrates this beautifully when he describes how Disney’s success was built upon traditional folk tales like Sleeping Beauty and Snow White2. As I have argued, much of the meaning of these works emerges from another source: the audience’s interpretation of culture creates much or most of their value.

Creative, cultural and intellectual works aren’t only tied to other works, they are also tied to other versions of themselves: they change over time and with context. For example, the meaning of a duck & cover video is very different now than when the Cold War was at its height, even though the images themselves have not changed.

Intertwingularity and the Internet3

None of this is new, but it is particularly relevant in the context of online media produced by numerous authors and always in flux. How does one disentangle the contents of a wiki or an online forum? What is the relationship between that content and the ideas and intellectual work that gave rise to it?

A Wikipedia article, for example, is multiple in both space and time. The text itself is hard or impossible to connect to the work that went into creating it: it has likely been written by many people, whose changes to words, sentences, and paragraphs cannot be isolated from each other. The article as a whole is also linked to the larger encyclopedia or to external sources on which it depends for explanation. The content may be further distributed in space as other sites copy it in whole or in part, perhaps making their own changes.

Furthermore, there are many versions of the same article. For a start, Wikipedia keeps a revision history (and if the article is vandalized, an older version may be preferable to a newer one). The article coexists with other versions of itself in time; copies elsewhere may represent different versions. Accurate references to an article must therefore refer to the specific version referenced. Wikipedia is exceptional in this way: most webpages don’t maintain a revision history. References must include the date the page was accessed; even then the content is often ephemeral and lost to history.

The same applies to software, which is typically also the product of multiple authors and versions. Even the point where one piece of software ends and another begins can be hard to determine – hence the dispute as to whether the popular open source operating system is Linux or GNU/Linux: proponents of GNU/Linux argue the core of the operating system cannot be meaningfully separated from other essential parts of the system. Indeed, this echoes the question of the Microsoft antitrust case: was Internet Explorer part of Windows or not? Well, yes and no.

The Work and the Commons

The difficulty with isolating intellectual and creative works from each other helps explain why a strong implementation of intellectual property threatens the creativity it purports to protect. But the commons can also be affected, for the concept of the “work” is common here also (I use the term myself). Lawrence Lessig, for example, has proposed that U.S. copyright be scaled back by again requiring copyright holders to register their works. But what would they register? If the work is changing, when would they have to register again?

Anthony McCann argues that most understandings of the commons, rather than opposing the enclosure entailed in the concept of intellectual property, reinforces it. Advocates of the commons often draw a contrast with with enclosure as an efficient means of managing resources. But, McCann says, accepting an economic perspective of the management of resources implicitly accepts the ideological basis of enclosure and the commodification it entails.

Although I think McCann goes too far – even an economic commons is valuable – his skepticism of such understandings is useful. Indeed I have proposed that it may be more helpful to look at the commons in terms of practice and experience rather than production and consumption. Yet I begin by arguing that creativity is often individual and can be tied to a particular work. The concept of the work is not only helpful analytically, it corresponds to much of our experience of culture and ideas in the world. Works, however, can be defined many ways (the Wikipedia page or paragraph, the edits of a particular author, the Web as a whole, etc.). The danger McCann raises is of commodification even in the commons. One definition of a work may become seen as natural, and be elevated above all the others. A commons that does this diminishes itself4.


1 I say copyright protects ideas. It may be objected that it protects the expression of ideas. For example, the copyright of a novel protects the words expressing the story, not the concept of the story itself (although in practice this is more ambiguous). A series of words is an idea too, however. The distinction only makes sense at a certain level, and only when the contrast with expression is introduced. The ambiguity only reinforces my point about the difficulty of separating ideas.

2 See Lessig’s Free Culture.

3 According to Wikipedia, intertwingularity was coined by Ted Nelson, who also thought up “hypertext”. I first saw the term in recent years used by ambitious web entrepreneurs.

4 That said, I am using an attribution version of the creative commons license for this post. There is on ideal solution.

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