I presented this at the Union for Democratic Communications conference, Enclosure, Emancipatory Communication and the Global City, in Vancouver, B.C. in October 2007.
Producing ideas without ownership has been variously described as nonmarket or peer production, or as production in a commons. It's becoming rather trendy – you know, Wikipedia, open source software, physics... I will explore the idea of a commons of ideas for three reasons: First, because there are some terribly useful lessons we can learn from other commons arrangements. Second, because the term is misleading and it's important to understand why. Third, because the commons is not exclusively concerned with production – it is also about community.
The commons is most often seen in terms of economics. For Lawrence Lessig, it is a resource that can be freely accessed. For David Bollier it is collective ownership. Steven Weber's open source is a kind of property configured around the right to distribute, not the right to exclude. Yochai Benkler's commons is a mode of production. These are all legitimate definitions, but they share a flaw: All see the commons primarily in economic terms of resources and production.
The commons is often linked to Garrett Hardin's paper “The Tragedy of the Commons”. Hardin described a shared pasture for cattle. Anyone could use this pasture. If you had a cow, you could pay for your own pasture, or you could use the common one. There, she could spend the day with other cows browsing grass to her heart's content. Now each person using the pasture contributes to its upkeep, but everyone contributes the same amount – no-one counts how many cows a contributor sends. So you might as well graze a second cow – or three or four or ten for that matter. Of course the same logic applies to everyone else too. Inevitably, Hardin explains, the pasture will be ruined from overgrazing. Because when I graze one additional animal, I gain all the benefit but the cost is shared with everyone else.
So much for the commons. The solution, as I am sure everyone here agrees, is private property: divide up the land, build fences, and give everyone a piece. Then if I graze cows on my land, the benefit is all mine – but so is the cost.
And so, over the course of the seventeenth and eighteenth centuries, the English parliament passed laws requiring that land be enclosed with fences. Commons arrangements going back hundreds of years were extinguished. About time too – otherwise the land would have been ruined!
There's just one problem. The land hadn't been ruined. In fact, the regulation of the commons – who could graze how many cows and so forth – was a central fact of life for the villagers who depended on them. The villagers were pretty good managers. The commons were the focus of communities; the thing the commoners produced was themselves. But when the time came, many of them couldn't afford the cost of fencing. They were forced to sell out. When enclosure was complete, the land was consolidated in fewer hands, and many of the villagers were forced to move to the newly-industrialized cities to be absorbed into the labor market. Whole communities and an entire way of life were wiped out. That, in fact, was the point of the exercise: to end the “lazy” subsistence lifestyles of the commoners and increase the profits of landowners.
And Hardin's paper? It is about global overpopulation. Cows and pasture are just a metaphor. Hardin didn't claim it reflected history.
It is a romantic tale. It is romantic because it is not only about economics – it is a story of people living in community. The extension of intellectual property and the enclosure of the public domain is also a romantic story. It too concerns community. The alternatives to enclosure – to information as property – are not simply economic arrangements. They have positive existence as social arrangements, whose success depends on their social character. But if we understand them merely as negative reflections of intellectual property, we won't understand that success or their value. And, like the public domain, they will be enclosed.
But the metaphor of the commons must not be taken too far. Ideas are not land. From an economic point of view, they have a number of special characteristics. In the context of the market, the free flow of information is required for efficiency, while its restriction is necessary to turn it into a commodity – property – for trade in the market.
Ideas are not depleted by use. In fact, the use of ideas often increases their value – just think of a hit movie, or the English language, or Microsoft Windows. The use of an idea by one person can benefit others; Steven Weber has therefore described ideas as “anti-rivalrous”. So if I speak Esperanto and you learn Esperanto too, the value of Esperanto to me goes up. Capturing beneficial side effects such as these, as Mark Lemley explains, is something best done by monopolies – Windows, English, Hollywood. Exclusive property rights are again problematic.
The production of most goods depends on other goods. To make cows, for example, we need grass. Ideas are different: they are made of other ideas. Treating ideas as property introduces barriers in this process.
There is, however, a justification for treating ideas as property. The problem is not overuse, it is producing them in the first place. The resource to be managed here is not the ideas themselves, but the creative and intellectual labor that produces them. Intellectual property aims to create an incentive for that production.
But what is being produced? Ideas are slippery. They overlap and interpenetrate one another. In order to deal with individual products of thought or creativity, the ideas must be transformed. They need fixed forms, they need boundaries to distinguish one idea from another. Amorphous ideas coalesce into works. A story is captured in a novel, a musical tune in a composition or performance. Common ground is created – for meaning, and for subsequent works.
At the same time, however, ideas are cut off from each other and from the process of their creation. They are alienated, and this changes them. When ideas are property, the alienation is even more complete: the boundaries must be objective, not fuzzy. The transformation echoes the enclosure of land. 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 had known. Enclosed land is a different kind of land.
So it is with ideas. We can predict, without even reading Encyclopedia Britannica, that it will be different from Wikipedia. We can anticipate, without ever having touched a computer, that the open source Linux operating system will have different characteristics than Microsoft Windows. Linux advocates claim that it is more secure because flaws are potentially visible to all. Proponents of proprietary software suggest that it is more innovative, because it can be the product of a single creative vision. Steve Jobs, apparently, can be very difficult to work with.
Sometimes the commons will produce products similar to those created under a property regime: fence or no fence, you can still raise cows. But if we go to the commons expecting to find a substitute for proprietary production, it will often disappoint us.
Remember the commoners in England. They produced cows, but above all they produced themselves and their communities. Emphasizing the division of ideas into works sidelines the relationships between people in communities. For the people themselves, works may not be the object of their labor. They may be more concerned with relationships.
That brings me back to the question of motivation. Rishab Aiyer Ghosh, among others, has suggested that programmers of open source software participate in order to build up their reputations. Open source developer Eric Raymond has described open source as a gift economy.
One of the more famous examples of a gift economy is the custom of the Trobriand Islanders. The Trobriand Islands form a rough circle off the coast of New Guinea. Their inhabitants craft highly esteemed necklaces and arm shells known as kitoum, which they attribute with sacred and healing properties. And they have a practice of giving these objects away. Recipients keep the object for a while, but then they pass it on – always in the same direction around the circle of islands. Why?
The first answer, as described by Marcel Mauss, is that giving a kitoum increases the status of the giver. It creates a social debt, creating and strengthening relationships within the society. Each giver in turn can use the gift to increase his status or repay social debts. The second answer is that these objects are inalienable. They are spiritually linked to their owners. And although the original giver may not possess the object, he still owns it. That is, until the kitoum arrives in the hands of someone with a matching kitoum of the opposite type (an arm shell for a necklace or vice versa). That person may choose to make an exchange, keeping the gift and passing the matching kitoum back around the circle of islands in the opposite direction. Eventually, the exchanged kitoum is likely to reach the original gift-giver, who can then keep it.
Maurice Godelier writes that the gift is given in order to create debts and social bonds. The exchange of gifts reproduces the society – and this is possible because the object is not alienated from its owner. Here we have another community in which the product is largely a means to a social end. Mauss and others have explored a variety of other societies in which gift giving plays an important social role.
It is not a coincidence that open source developers speak often of an “open source community”, nor that Thomas Kuhn describes scientific paradigms as “modes of community life”. Science is one of the most long-lived successful commons. It is often difficult to speak of science in terms of “works”.
Focusing on the social facet of ideas, we again find that they are different from cows, though they have something in common with the necklaces and arm shells of the Trobriand Islanders. Ideas have authors. Today this is a commonplace; three hundred years ago it was not. Art and science were reflections of God or nature. That changed: art became increasingly understood as expressions of the individual subjectivity of the artist. This artist has often been idealized as a romantic, whose spark of creativity gives rise to original genius. Her art is not a mirror held up to truth, but an expression of her unique personality – and as such, it is inalienable.
This romantic author is present in intellectual property law. Copyright rewards original works as though those works were created from nothing by individual genius. James Boyle has argued that this is the most coherent explanation for how the law resolves the conflicting natures of ideas as property. For example, the concept of the romantic author clarifies when information should be shared to foster efficient markets, and when it should be restricted and commodified.
It is ironic that Marx criticized the market for alienating the worker from the fruits of his labor, when the mechanism that brings creative and intellectual works into the market is often championed on the basis that it protects the artist from a similar fate. (And it is doubly ironic that the effect is often to achieve that alienation.) But when ideas are not owned, they are often not alienated.
Let me talk about myself for a moment. I am a computer programmer. I have worked on proprietary software, more recently I have been fortunate to be paid for open source development. What I have found is that when my work belongs to a company, I must cut my ties to it: I cannot afford to care too much, because the work is not mine. With open source, however, though I give my work away, I always care – even when I'm not being paid anymore. What's more, my clients care, because I am the world expert on my work, they benefit when a third party asks for enhancements. The reputation of the software – hence of me – is in their interests. Just as the status of the original giver of an arm shell increases each time that arm shell is passed along. And just like the Trobriand islander who first gives the gift, I hope that some other programmer somewhere will improve my software, and I (or my clients) will benefit.
Community isn't only a means of making the commons effective. Although it is that; after all, the two most successful commons of ideas, software and science, are embedded in communities, while the collapsing public domain lacks this community character. But more importantly, community is a justification for the commons. As John Dewey explains, the self development and self expression of the individual must take place in the context of the community. And for the originality of the author to have any meaning, it must take place in the context of the shared understandings of community.
So after all this talk about the commons, it may be the wrong word after all. The economics of ideas must be balanced with the community of ideas. When we look at the acts of creativity and sharing this way, we can find that the creation of ideas reinforces community, while community underpins the ideas. The question then is not the nature of the commons, but the nature of community.