This new, open-access transdisciplinary journal Culture, Climate and Change: Biocultural Systems and Livelihoods aims to critically engage with and disseminate biocultural approaches to understanding and responding to climate change and global change processes.

The journal puts into practice the ‘epistemic bridging’ that lies at the heart of indigenous peoples’ biocultural understanding of territory, community, climate and ecosystems through sharing across practice based learning, research findings and conceptual papers.

A feature of this first issue will be a section on REDD and REDD+. We are particularly interested in articles that explore the relationship between the rights of forest dwelling indigenous peoples and climate change mitigation mechanisms for Reducing Emissions from Deforestation and Forest Degradation (REDD).

Types of Papers:

Research Articles (5 – 8,000 words)

Essays

Book and report reviews

INSTRUCTIONS FOR AUTHORS

Please visit the CCC:BSL site at http://journals.sfu.ca/ccc/index.php/ccc/index for all the information on how to format your manuscript, as well as on-line submissions. Please note that you must register (go to http://journals.sfu.ca/ccc.index.php/ccc/user/register) as an author to be able to submit your manuscript.

For more information:

http://journals.sfu.ca/ccc/index.php/ccc/about/submissions#onlineSubmissions

Completed manuscripts submitted by December 23rd will be considered for the journal launch in January 2012.. Manuscripts submitted after this date will also be considered for the first issue, which will continue to publish papers through till March 2012.

Short contributions: Maximum length 2,000 words

Research articles: Maximum length 8,000 words

JOURNAL EDITORS

Dr Marina Apgar, Indigenous Peoples’ Biocultural Climate Change Assessment (IPCCA) initiative, Asociacion ANDES, Cusco, Peru

Dr Will Allen, Learning for Sustainability – http://learningforsustainability.net/

Dr Martin Pedersen, Co-founder | t r 3 3 |

Dr Nina Moeller, Freelance Consultant, UK

Further info:

A new journal of biocultural systems & livelihoods:

Climate change is perhaps the biggest challenge that communities and ecosystems across the world face today. Indigenous peoples and local communities living in biodiverse and fragile ecosystems of the planet are especially vulnerable to the impacts of climate change due to their direct reliance on local, natural systems for their livelihoods, well-being and cultural expressions. Paradoxically, they also potentially hold vital knowledge, gained through co-evolutionary relationships with the natural systems that have enabled their survival and resilience. Understanding climate change, its impacts on local and global systems, and potential solutions requires touching upon concerns of how to link the social to the environmental within a framework of equity and justice. It requires dialogue across scales from the local to the global. Holistic approaches, such as indigenous and biocultural approaches offer potential avenues for understanding the challenge and building appropriate solutions.

This new, open-access transdisciplinary journal Culture, Climate and Change: Biocultural Systems and Livelihoods aims to critically engage with and disseminate biocultural approaches to understanding and responding to climate change and global change processes.

The journal puts into practice the ‘epistemic bridging’ that lies at the heart of indigenous peoples’ biocultural understanding of territory, community, climate and ecosystems through sharing across practice based learning, research findings and conceptual papers.

In light of a commitment to building epistemological bridges between different knowledge systems, the journal will use an open peer review process which aims to promote an environment of cooperation, knowledge exchange and networking between authors and reviewers of the journal community.

Add to Gurstein’s critique the problem of materiality focused on in this blog, then we have a perfect means justifying the end (haha, only just realised this now, this is of course wrong)  instance of the end justifying the means and a waiting around for the trickle-down effect scenario. I.e. “If you feed the horse enough oats, some will pass through to the road for the sparrows”.

Perhaps it is time to talk of tech-neo-colonialism. Recall, that many – obviously deluded and misled, yet enthusiastic – white men and women were convinced that they were saving savages from miserable, inhuman livelihoods and – importantly – closed down societies and introducing them to the right (democratic) path. The road to hell……

I spent the last couple of days at a fascinating (and frightening) event in Berlin—OKCon—a convention for the (in this case mostly European) uber-geeks who are in the process of recreating governments and potentially governance itself in Western Europe (and beyond). The ideal that these nerdy revolutionaries are pursuing is not, as with previous generations—justice, freedom, democracy—rather it is “openness” as in Open Data, Open Information, Ope … Read More

via Gurstein’s Community Informatics

Further details developed here:

Pedersen, J.M. (2010) “Properties of Property: A Jurisprudential Analysis“, The Commoner, Special Issue, Volume 14, Winter 2010, 137-210

All property ownership is conditional, and it always has been. This thousands-of-years-old doctrine is seldom appreciated or understood by modern activists, politicians, economists, or even by lawyers. Many on the Left criticize the institution of private property, sometimes finding in  it the root of all evil. They may hold the institution of private property … Read More

via Poor Richard’s Almanack 2010

A critical analysis of the GPL constitutes the main section(s) in “Free Software as Property” and is pasted below without page numbers, illustrations and some formatting mangled. Get the excerpt in PDF or the full chapter, or read on without page numbers and illustrations:

….These organisational lessons provided by the example of Free Software have been the subject of a paper by cyberspace visionary Douglas Rushkoff, originally written for the London think tank Demos:

“The emergence of the internet as a self-organising community, its subsequent co-option by business interests, the resulting collapse of the dot.com pyramid and the more recent self-conscious revival of interactive media’s most participatory forums, serve as a case study in the politics of renaissance. The battle for control over new and little understood communication technologies has rendered transparent many of the agendas implicit in our political and cultural narratives. Meanwhile, the technologies themselves empower individuals to take part in the creation of new narratives. Thus, in an era when crass perversions of populism, and exaggerated calls for national security, threaten the very premises of representational democracy and free discourse, interactive technologies offer us a ray of hope for a renewed spirit of genuine civic engagement” (2004: 16).

These are great promises. However, as we covered in Chapter 1, the philosophical problems inherent in “information exceptionalism” and their consequences for Free Software and Free Culture politics result in a very important recursive relation being absent, namely with the tangible realm. The Free Software movement is “vitally concerned” with copyright reform and abolition of software patents, but they are not vitally concerned with substantial reforms of property relations in the tangible realm, on the contrary. The material foundations of cyberspace – and thus the realm in which software development takes place – is certainly part of the infrastructure that allows Free Software to come into being in the first place. Without a critical approach to ownership in the tangible realm the Free Software movement will remain vulnerable to enclosure led by those capital interests.

The most important commons is the commons of the land and the tangible means of production and distribution. That is the shared material reality of humanity from which all other possibilities arise, whether tangible or intangible. The information commons is a luxury, the icing on the cake. It is costly and it is precious and has excelled in perpetuating the seemingly ubiquitous propensity of human beings to engage in sharing and cooperation when constraints are lifted. The liquid architecture of cyberspace has facilitated these emergent processes very well. But the proliferation of sharing and cooperating, which attracts so much attention – from rent seekers and anti-capitalists alike – is not confined to cyberspace, nor to the intangible realm.

The difference between tangible and intangible is not what determines whether people share and cooperate. As we have seen there is a long, rich history of commoning. Commoning is a shared skill of humanity and not a skill that suddenly, morphogenetically appeared on a global scale when the doors to cyberspace were opened. Rather, cyberspace provided people with a space that was not yet enclosed. There were few fences in cyberspace, so sharing and cooperating was possible. It was possible because the constraints of private property – present in almost all other dimensions of life – were absent. Now they are invading cyberspace, seeking rent and expansion of capital interest. It is laudable to form a movement to strike back and protect cyberspace, but a more reflexive approach would not stop at the gates of the tangible realm. The threats of capital will not go away as long as capital exists in its particular form. It will return, it will continue to seek new ways of enclosure, which suggests that it is necessary to address this problem of capital at the most fundamental level, namely with regards to ownership.

Addressing merely the symptoms of avarice and capital expansion in the intangible realm condemns Free Culture to an eternal and defensive battle and separates Free Software and Free Culture from the global movement of movements struggling to take back the land and the means of production. Without acknowledging and acting upon its recursive relationship to the tangible realm, Free Software remains a virtual commons that is detached from the struggles for real commons. Having witnessed the phenomenal emergence of commoning in cyberspace – when the constraints of private property were lifted – we can only imagine what transformations the tangible realm would undergo if constraints were lifted there. As I said above, the opposition here is not tangible versus intangible, but private property versus forms of property that facilitate collective creativity and self-organisation.

Nevertheless, the achievements of the Free Software movement are remarkable. It is in the GPL that these achievements are manifest and in the following section this software license and copyright reforming declaration of hacker values will be explained in detail.

The GNU General Public License: copyright subversion and constitution.

Contemporary literature addressing copyright law in the context of software is replete with gaps, misunderstandings and misleading statements with regard to Free Software and the GPL. It will be instructive to briefly present a few of those misunderstandings here.

Misunderstanding the GPL.

A frequent misunderstanding of Free Software is that it is placed in the public domain. We can find this replicated in the third edition of an Oxford University Press textbook on Intellectual Property Law:

“[The Free Software movement] is dedicated to the idea that code should be made publicly available rather than protected by copyright law. For example the Free Software Movement develops code and places it in the public domain. It can be used by anyone, with the proviso that they agree to the terms of the General Public License, which dictates that any improvement made to the software will be similarly placed in the public domain” (Davis 2008: 75-76).

As we shall see in more detail later in this chapter, this is not only misleading but false. The only correct statement in the quote is that “[i]t can be used by anyone, with the proviso that they agree to the terms of the General Public License”. Firstly, Free Software is protected by copyright law, that is its very foundation. Hence, secondly, Free Software is not at all placed in the public domain. This is the genius of Free Software. Instead it is protected from enclosure through a subversion of copyright and that subversion is articulated in the GNU General Public License (the GPL). The GPL is best understood as a set of sub-clauses to copyright, hence it rests upon copyright law.

Turning to Pearson Longman’s “Intellectual Property”, Seventh Edition, we find a long, densely case referenced chapter on copyright (Bainbridge 2009: 239-296), yet not one mention of Free Software. The chapter begins:

“Copyright law has a history of development that can partly be explained by reference to technological change … The Copyright, Designs and Patents Act 1988 was an attempt to keep abreast of developments in technology coupled with an intention to enact legislation that would take future change in stride. Of particular concern was the protection of computer programs and of other works stored or transmitted in digital form” (ibid: 239).

If we look to another set of leading voices in the field, Bently & Sherman’s Intellectual Property Law textbook, we find no mention of the phenomenon of the GPL in the second edition (2004) at all, but in the current edition (2008) space has been made for a mentioning. On page 266 a section is devoted to the work of the Free Software Foundation, adding little to the debate. It has to be noted that one of the greatest technological changes in this context in contemporary times, namely the advent of the Internet, which is built in great part with Free Software and recursively has made the further success of the Free Software movement possible, is hardly taken into account by the legal, academic establishment.

In the following section, I present the GPL and its legal, and above all property implications in more detail.

The GPL: just a software license?

The GNU General Public License (“the GPL”) is a software license, which, as is also the case of non-free software licenses, determines the conditions of distribution of a piece of software. The GPL was first published in 1989. The GPLv2 was published in 1991 and the process towards GPLv3 began officially with a global gathering at MIT in January 2006, which has been recorded, documented and discussed extensively, as has the gatherings that followed: the Second International Conference on GPLv3, which was combined with the 7º Fórum Internacional Software Livre, took place April 19-22 in Porto Alegre, RS, Brazil; the third happened in Barcelona, June 22-23; the fourth took place in Bangalore, India, August 23-2; and the fifth took place in Akihabara Tokyo, Japan, November 21-22, 2006. Each of the conferences were organised by the local Free Software groups and coordinated with the civil society of developers and users. The process was coordinated by four committees, each composed of “18 to 22 members who were chosen from vendor, developer, hacker and open source communities” with a privilege of the original author, Richard Stallman, who “would make the final decisions on hot-button issues like digital rights management (DRM). However, even with Stallman as the ultimate decider in what stays and goes from the license he created in 1989, committee members were optimistic that the right issues are being addressed” (Loftus 2006).

The GPLv3 was finally published in June 2007, with a preamble and 18 sections of legalese in more than 5000 words; it is deliberately written for and within global civil society, rather than for any specific national jurisdiction (an aspect to which I return briefly below) and the GPLv3 is now the recommended software license by the Free Software Foundation. But how – exactly – does it work?

Software, like a book, a painting or a poem, is by default copyrighted and the exclusive right to define distribution terms belongs to the creator (unless s/he, like many academics, have signed away their so-called “intellectual property” as part of signing their employment contract). A software license is an expression of the creator’s specific conditions with respect to distribution of the copyrighted software.

Copyright specifies the control powers and use privileges, conferring on the author – and the author only – an exclusive set of rights to: (i) reproduce or copy the copyrighted work; (ii) prepare derivative works (modify the work); (iii) distribute copies of the copyrighted work to the public by sale or other transfer of ownership, rental, lease or lending; (iv) perform or display the copyrighted work publicly. It is this articulation of copyright that the Free Software movement aims to radically reform and alter. As we shall see they have managed to do so with quite some success.

The Free Software movement’s creations, that is the software they write and release, rest upon the provisions of copyright law, because the GPL specifies what the copyright holder permits others to do with a Free Software programme. The GPL is legally speaking a set of sub-clauses to copyright. These sub-clauses are articulated in such a way that they – at once – build on copyright and also subvert the function of copyright. The Free Software Foundation calls these sub-clauses “distribution terms” and they specify certain freedoms that are provided to users, but also specify certain conditions that the users are required to observe and follow in order to enjoy the privileges of freedom. In writing the GPL the Free Software community has constituted itself as the relating-subject (A+C), classified (free) software as its related-to object (B) and specified their relational modalities and thus established a (software) commons.

Copyleft freedoms: reciprocity in perpetuity.

The general concept that is at play in the GPL’s articulation of sub-clauses to copyright, or distribution terms in extension of copyright, has been labelled Copyleft. The articulation of the GPL has spawned a variety of other Copyleft licenses, notably those of the Creative Commons¹, and as such the GPL is a particular instance of Copyleft, which defines and articulates the “four freedoms” of Free Software:

“To copyleft a program, we first state that it is copyrighted; then we add distribution terms, which are a legal instrument that gives everyone the rights to use, modify, and redistribute the program’s code or any program derived from it but only if the distribution terms are unchanged. Thus, the code and the freedoms become legally inseparable” (FSF 2001).

The four freedoms of Free Software are thus:

• The freedom to run the program, for any purpose (freedom 0)
• The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.
• The freedom to redistribute copies so you can help your neighbor (freedom 2).
• The freedom to improve the program, and release your improvements (and modified versions in general) to the public, so that the whole community benefits (freedom 3). Access to the source code is a precondition for this (FSF 2009)

The code and the freedoms become inseparable through the ingenious element of reciprocity in perpetuity that is inherent in the GPL. Its opponents call this relational modality a “viral clause” in order to provoke associations with computer vira and illness in general². For the software privatisers, GPL’ed code is a contamination, because it brings with it – as the code and the freedoms are inseparable – the freedom to share and cooperate and protects this freedom against enclosure.

The relational modality that instantiates reciprocity in perpetuity is a clever articulation of sub-clauses to copyright that on the one hand binds the code and the freedoms, while on the other, as a consequence of this binding, ensures reciprocity between developers and users within the community. In logical terms it is stipulated in the GPL that if a GPL’ed code segment X is included in programme Y, then Y, if it is released to the public, must also be released under the GPL. In that way you are obliged to extend and forward to others the four freedoms awarded to you by the copyright holder through the distribution terms defined in the GPL, in case you elaborate on a given segment of Free Software and redistribute it. If you just modify and keep your modified software to yourself you are not obliged to do anything and can simply enjoy the four freedoms in private. In the GPL Version 3 the relational modality that ensures reciprocity in perpetuity is articulated as follows³:

“The GPL – Section 5: Conveying Modified Source Versions.

You may convey a work based on the Program, or the modifications to produce it from the Program, in the form of source code under the terms of section 4, provided that you also meet all of these conditions:

• a) The work must carry prominent notices stating that you modified it, and giving a relevant date. [In order that fellow commoners know that code has been changed and when.]

• b) The work must carry prominent notices stating that it is released under this License and any conditions added under section 7. This requirement modifies the requirement in section 4 to “keep intact all notices”. [The conditions or additional terms referred to here are irrelevant for our analysis.]

• c) You must license the entire work, as a whole, under this License to anyone who comes into possession of a copy. This License will therefore apply, along with any applicable section 7 additional terms, to the whole of the work, and all its parts, regardless of how they are packaged. This License gives no permission to license the work in any other way, but it does not invalidate such permission if you have separately received it. [This is the reciprocal specification: “the entire work” is the original code, plus your contribution, which then enters the Free Software commons. A can never be separated from C and the relational modality (reciprocity in perpetuity) attaches to, or follows B as it circulates. i.e. the commons grows.]

• d) If the work has interactive user interfaces, each must display Appropriate Legal Notices; however, if the Program has interactive interfaces that do not display Appropriate Legal Notices, your work need not make them do so. [This is irrelevant for our analysis.]

A compilation of a covered work with other separate and independent works, which are not by their nature extensions of the covered work, and which are not combined with it such as to form a larger program, in or on a volume of a storage or distribution medium, is called an “aggregate” if the compilation and its resulting copyright are not used to limit the access or legal rights of the compilation’s users beyond what the individual works permit. Inclusion of a covered work in an aggregate does not cause this License to apply to the other parts of the aggregate”. [This clarifies that a compiled – i.e. binary - Free Software programme (or application) can be used with other programmes without subjecting these other programmes to the conditions of the GPL, thus defining the limit of the reciprocal element. The exact details are not strictly relevant for this analysis, but concerns the freedom to combine Free Software in binary form with programmes that are not Free Software. GNU/Linux distributions, such as Ubuntu, do just that.]

Reciprocity in perpetuity should be clearly distinguished from the reciprocal give and take that characterises a market economy, in which individuals enter into contractual relations that are characterised by direct reciprocity. Reciprocity in perpetuity is likely to be a feature of most commons: the commons is always there, for you to access and use and take from; however, it demands care and attention in turn. A commons can be destroyed by enclosure, but also by neglect or over-use. In the moment that a commoner does not perform the duty of care that has been distributed to her, the reciprocal link is broken: it might exclude her from the commons or contribute to its collapse. This is most obvious if we think of commons of the land and the ecological balance that sustains them. The GPL ensures that everyone is able to access the Free Software commons, and also that everyone will act in ways that ensure its continuity (and in fact, growth) into the future. Reciprocity in perpetuity refers to an attitude of responsibility and responsiveness that is necessary in order for the commons to remain perpetually there (see also Section 2.1.3 on the distribution of care).

Copyleft loves copyright.

The GPL, anchored firmly in copyright law⁴, yet subverting copyright, ensures me that if you use a bit of my code and add to it, then the bit that you added will be available to me on the same conditions. In that way our common creations are bound to and by the same freedoms in perpetuity. Free Software hackers are (neo-)commoners:

“Proprietary software developers use copyright to take away the users’ freedom; we use copyright to guarantee their freedom. That’s why we reverse the name, changing “copyright” into “copyleft … It doesn’t mean abandoning the copyright; in fact, doing so would make copyleft impossible. The word “left” in “copyleft” is not a reference to the verb “to leave” — only to the direction which is the inverse of “right”” (FSF 2009).

Because the GPL is “merely” a set of sub-clauses in extension of existing copyright law, which is awarded automatically upon a creation’s release to the public, in the moment that you do not adhere to the terms and conditions under which the GPL puts you, the GPL is rendered invalid. It follows that you can no longer claim the four freedoms of Free Software, since they are only yours to enjoy as long as you reciprocate them. Therefore, when breaching the GPL the software in question is no longer covered by the GPL’s additional distributions terms, but reverts to being covered under conventional copyright law. That, of course, means that you are not allowed at all to copy or redistribute the code in question. Breaching the GPL by enclosing code is thus a de facto breach of copyright. I look at court cases setting legal precedents for such breaching in Section 3.6.

In other words, the GPL is a “hack of genius” (Meretz 2004: 31) that utilises existing law from within the system otherwise threatening Free Software development, namely copyright law, and subverts it through a reconfiguration that ensures reciprocity in a community instead of exclusion on behalf of an individual (see also Oksanen and Välimäki 2006). Copyleft, then, is not only a word play, but a whole new way of imagining copyright. It is on this basis that the Free Software movement is working to reform copyright law. They do not by any means want to eliminate copyright law, since without copyright the GPL loses its trespassory protection and hence means of defence. This has already been tested in a court of law (see Section 3.6 below).

That copyleft is dependent on copyright is often misunderstood, not only in influential textbooks on copyright law as we saw above, but also among anti-capitalists. The attentive reader will by now be aware that this reliance of a commons on the institution of private property is by no means contradictory. On the contrary, in capitalist democracy, it is in fact inevitable.

The communitarian form of property that Harris describes, and which we adopted as a model of an autonomous commons within capitalism, represents the Free Software commons well. Its trespassory protection, given by copyright yet expressed as copyleft, circumscribes a realm of collective-freedom-to share and cooperate. This relational modality is articulated in the form of the GPL (a property protocol), which provides use privileges, and indeed a certain amount of control power to anyone whose actions do not undermine the conditions of reciprocity stipulated within it. The control power of the copyright holder is used to surrender the exclusivity of that control power, making it available to everyone who agrees to surrender theirs in turn under the same conditions. Use privileges are opened up to anyone in that way. The capitalist characteristic of property, the exclusive right to wealth effects is, as a side-effect of the surrender of control power, made non-exclusive: everyone can potentially sell products and services based on GPL’ed software code, as long as the code continues to circulate freely.

Understood in this way, the configuration of property relations in the Free Software commons can be illustrated in this manner (see next page):

Illustration 10: The GPL as property configuration.

Both the original decision to (conditionally) surrender control power through copylefting one’s creation, as well as any other decision made with regard to software code released under the GPL are legitimised by reference to common values of the hacker community, such as the fostering of sharing and cooperation. The GPL is an articulated protocol of such common values, and affords the author and everyone else use and exchange privileges.

Copyleft uses copyright as its enforcement mechanism in a world dominated by private property relations and authorised self-seekingness on behalf of corporations – that is, authorised profiteering in the interest of shareholders. In a world of continuous enclosure, that is increasing individual and quasi-individual control powers over land (and everything else), subversion of enclosure might be the only way to stop its progress short of reverting to increased state regulation. To subvert enclosure is to subvert individual and quasi-individual control powers, by using the authority so invested to surrender some control power (conditionally) and open up use privileges to others. This is what copyleft does. It is also, in essence, what social centres and hacklabs do: some social centres are squatted, others are rented, and again others privately owned. In all three versions some degree of control is conferred respectively upon (i) the quasi-individual collective of squatters, (ii) tenants or (iii) landlords. In the squat, control power is de facto rather than de iure based on the physical possession and occupation of the building or plot of land. The rented social centre means that the use-privileges and some control power has been contracted out from the owners to the tenants. In the case of a social centre being privately owned by the social centre collective (often in form of a cooperative), control power lies even more straightforwardly with the centre. In all cases, however, this control is used to open up use-privileges to the wider community, as well as surrendering some decision-making power over how the space is used and by whom (though usually not the power to alienate the title on the market, i.e. the power to sell the centre).

Within capitalist democracy, most commons will have to rely on some sort of enforcement mechanism that can protect the commons from enclosure. Private property rights come with such state sanctioned powers of enforcements attached and, in principle, instances other than copyright can be “hacked” in a similar way.

The relation between the GPL and copyright law is one of dependence. But this dependence has less to do with the fundamental need for private property in social organisation, or with the logical priority of private property. Rather, it has to do with the relentless nature of capitalist privatisation which creates the need for strong trespassory protection of a commons in the first place.

If hackers bought a piece of land and fostered a forest garden, they could constitute themselves by articulating their decided upon relational modalities with regard to their forest garden commons. As discussed in Chapter 2, coming together to buy a piece of land in legal terms is simply an instance of group private property – like a corporation – but what constitutes a commons is not only a matter of its precise legal foundations. A commons is an idea and it is an experimental process of commoning: working together, sharing and cooperating. As an act of creation the commons is on a trajectory away from the state and its modalities – by which door it exits is not necessarily a crucial matter. It is a collective expression and fulfilment of needs and desires. A commons self-articulates in and through commoning and its emergent property relations and protocols. One way it can defend itself is through the co-option of capitalist trespassory protection for its own ends.

Structurally speaking – with regard to social organisation – the “only” difference between private property and the configuration of property inherent in the GPL is the shifted focus from individual exclusion and self-seekingness to a sharing and cooperating community. Both are relations between people with regard to things, structured by normative protocols.

If we recall the process described in the Introduction from the Magna Carta and the Charter of Forests to the American Declaration of Independence, which was a process from rights articulated for collective and communal benefit to rights articulated for individual privilege, we see here the exact reverse: copyright is articulated for the privilege of individuals to exclude others, whereas the GPL subverts that individual privilege and transforms it into an articulation that ensures collective benefits in a community of reciprocity. Private property – in the sense of it conferring decision rights, sanctioned by the state – can therefore be really useful for commonism. The Free Software commons is a function of private property. Standing on that foundation, it is a rather safe commons. However, it is not necessarily on the legal basis of private property that the Free Software commons is constituted. It is constituted as a commons by the voluntary association of hackers. They act according to their common constitutional liberties, as it were.

Constituting a commons.

In addition to being a clever legal document, moreover, the GPL is also a constitution of the Free Software movement (or community). It defines the boundaries of the software commons and binds together the commoners in the practices of commoning. It communicates a global vision for the community of software freedom, and articulates its relational modality. Furthermore, the GPL is an expression of the idea that freedom as collective-freedom-to needs to be written into the normative protocols that guide behaviour in capitalist democracy, and indeed, that it can be written into protocols. Inscribing collective-freedom-to in that manner requires certain conditions to be observed by all, in order for this freedom to remain collective into the future. But as such, these conditions are voluntary and reciprocal: you only have to abide by the rules if you want to use the resources of the commons, and you can expect reciprocity in doing so. The commons is protected both through the practices of commoning and reciprocity in perpetuity, but of course also by the trespassory rules that copyright enacts. However, with Free Software, trespassory protection does not exclude people. Rather, it asks them to act in a particular kind of way. The Free Software commons is “open” to people not according to their identities (in the birth certificate kind of sense) but according to their actions.

Wendy Pullan (2004) in her architectural studies of the Israeli wall built to contain the Palestinian people makes an analytical distinction between thick and thin walls. Thick walls “structure differences and transitions, thereby embodying and fostering a certain richness of meaning”. Thick walls are constitutional of identity, yet permeable. Pullan uses the example of the Roman poemerium, the symbolic furrow later echoed in the city walls, “which deviated as necessary and were added to and changed over time to represent the practical structures of daily life” (ibid.) to communicate what a thick wall is. A thick wall is a facilitator, a mediator and point of reference, whereas thin walls, such as the Israeli one, are “constructed expressly to separate and divide”.

Pullan’s perspective is helpful to understand the GPL in metaphorical terms. We can understand the GPL as a thick wall around the Free Software community, protecting it, but not excluding the rest of the world unconditionally: the wall that the GPL instantiates is best understood as an invitation to join an intentional and autonomous community, whose goal is “to give people liberty, and to encourage cooperation, to permit people to cooperate” in the understanding that one should “never force anyone to cooperate with any other person, but make sure that everybody’s allowed to cooperate, everyone has the freedom to do so, if he or she wishes” (Stallman 2001b).

The GPL is based on distribution rather than exclusion (Weber 2004) in that it de-emphasises the regulation of an individual owner/creator who can exclude others – and for how long – from access to and use of software code. Rather the GPL instead emphasises how, and under which conditions software code can be shared and distributed in a common fashion. In doing so, the GPL unites people: it builds communities. The Free Software movement – “vitally concerned with what allows them to come into being in the first place” – has in many senses set new standards for autonomous constitution. This again underpins the notion of the Free Software community as a recursive public: it thrives in global civil society and strengthens global civil society by showing by example how global voluntary associations can organise and protect themselves.

Because it is a global network of communities composed of members residing in respective jurisdictions, each subject to different specificities of local copyright law, the GPL is also an experiment in global(ised) law making beyond the nation state through voluntary associations⁵. A property law made within global civil society by a social movement. The global dimension is reflected in the recently completed process to update the GPL to Version 3, which includes efforts of “denationalization”, in order to position the GPL within global civil society, in an “attempt to cut the language of the license loose from any particular system’s copyright law” (Moglen 2006), so as not to confine it to any specific nation state’s legal system and its terminology.

Free Software is created for both individual use and the common good. It contributes to society by creating commonalty: the Free Software community is a voluntary association of individuals whose creative agency make up a software commons. The GPL facilitates a codification of unwritten rules, norms, and customs derived from, on the one hand, the social and political concern that free access to source code be crucial for society, and on the other, the practical realisation that good software is produced by sharing and experimenting with each other’s code freely and openly as a community. Realising that the most central element of software is the need to share, circulate and distribute it, for the sake of software evolution itself and for the sake of the common good of the people, the GPL articulates freedoms that focus on sharing and cooperating and secures the continued possibility to do so.

For many years the GPL remained untested in court and as such the legal validity of the self-organised and autonomously declared software freedoms remained unknown. The Free Software movement never wished to test it, but kept to a private policing and enforcement of the GPL when breaches became known (see below). When the time came for the GPL to enter a court of law the movement was a global community with well-established and widely recognised customs, and many awaited the first decisions with great anticipation.

1The Creative Commons was explained briefly in Chapter 1.

2Not unlike the subversion of the “framing effect” with regard to property that I have presented in this essay as a response to Stallman’s warning that “most people” are unable to understand property beyond an absolute, natural rights-based conception, David Bollier has given a positive meaning to the term “viral” in his “Viral Spiral: How the Commoners Built a Digital Republic of Their Own” (2008). This attempt reflects my own view: rather more information, than less, rather investigate, than obscure.

3The entire text of the GPL is available online @ http://www.gnu.org/licenses/gpl.html.

4Not only is copyleft dependent on copyright protection, but the GPL, that is its specific wording, is protected by copyright. The GPL itself is therefore not copylefted, but remains under conventional copyright. In this way the GPL also interfaces with and makes use of existing copyright law. Stallman explains why: “We don’t want people to circulate modified texts that purport misleadingly to be the GNU General Public License. Copyright does not restrict the writing of license text. Thus, if you want to write a license with wording similar to the GNU GPL but not exactly the same, you can do so. But you can’t copy our preamble without our permission, so you can’t make it appear to have come from us” (Stallman in Biancuzzi 2009).

5In an aside it should be noted that lex mercatoria exhibits similar traits. Legal sociologist Guenther Teubner argues that “Lex mercatoria, the transnational law of economic transactions, is the most successful example of global law without a state … [but] it is not only the economy, but various sectors of world society that are developing a global law of their own. And they do so … in relative insulation from the state, official international politics and international public law … Technical standardization and professional self-regulation have tended towards worldwide coordination with minimal intervention of official international politics. The discourse on Human Rights has become globalized and is pressing for its own law, not only from a source other than the states but against the states themselves. Especially in the case of human rights it would be “unbearable if the law were left to the arbitrariness of regional politics” (Teubner 1997: 3-4).

From:

Pedersen, J.M. (2010) ‘Free Software as Property’, The Commoner, Special Issue, Volume 14, Winter 2010, 211-286.

Here is an excerpt from ‘Properties of Property: A Jurisprudential Analysis‘ (pp: 160-165) that comes to terms with the basics of property as social relations. Get it with all formatting, footnotes, page numbers as intended in this PDF.

Property as social relations.

To begin with, then, we need to overcome the idea that property is a simple person-thing relation that implies an absolute (or even conditional) entitlement:

“We often think of property as some version of entitlement to things: I have a right to this thing or that. In a more sophisticated version of property, of course, we see property as a way of defining our relationships with other people. On such versions, my right to this thing or that isn’t about controlling the “thing” so much as it is about my relationship with you, and with everybody else in the world” (Rose 1993: 27-28)

Hohfeld’s matrix.

The more nuanced perspective can in great part be attributed to “a pivotal article” (ibid: 42, note 10) by Wesley Newcomb Hohfeld in which he outlined ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913). However, because the work of Hohfeld stands as a milestone in the liberal and legal positivist traditions, not much – if any – “politically radical” work has been built on his conceptions; indeed there is a general reluctance amongst anti-capitalists to engage with liberal jurisprudence, including structural analyses of property. This can be taken to reflect the conflation shared across the political spectrum and in the public imagination that property in general is seen as equal to the very particular social relations that exclusive, private property rights give rise to. Or, private property rights, particular to capitalism, are understood as property in general. Writing on property often does not unpack a given instance of property properly, but for instance merely states that “property is theft”. That is in itself a false reference, since Proudhon arguably was among the first to seriously analyse and unpack the idea of private property, which he did not simply write off as theft (Waldron 1988)¹.

Hohfeld’s important contribution to jurisprudence was a way of systematising components of legal reasoning. His analysis applies to property as one of the sub-systems of law. Hohfeld “expounded the lowest common denominators of the law by reference to two squares of correlations and opposition” (Harris 1996: 120-121):

Right Privilege  Duty No-right

Power Immunity  Liability Disability

Illustration 1: Hohfeld’s matrix.

In this matrix there is correlation (vertically) between right and duty, between privilege and no-right, between power and liability and between immunity and disability; while there is an opposition (diagonally) between right and no-right, between duty and privilege, between power and disability, and between liability and immunity. The top half of the squares refers to the entitlements that characterise jural relations, the bottom half to its correlated position.² On Hohfeld’s account of jural relations, each such relation consists of four basic components: (i) the person or group of persons holding an entitlement (X); (ii) the person or group of persons occupying the position correlative to the entitlement (Y); (iii) the form of the relation (i.e. whether it is, say, a right-duty relation or a power-liability relation); (iv) and the content thereof (the specification of the right-duty relation).

A Hohfeldian explication of proprietary entitlements would hence specify the content of such entitlements. That is, it would specify what Y must do or cannot do, and what X may do or can do. With regard to proprietary entitlements, any suitable specification would necessarily refer to the object or resource with regard to which X and Y have to behave in a certain way³. In that sense, the relation of primary importance is the relation between people (X and Y, you and me), even though this relation will concern things. We can begin to understand property relations as social relations between people – all people – with regard to any given thing.

The matrix permits us to understand the simple dominion conception – the vision of one individual having absolute, legitimate control over a thing – as implicating everyone else. Our starting point thus becomes the web of relations between people, and the interrelated nature of their actions which always involve objects, things, resources as either settings or props. Hohfeld’s work added that multi-lateral dimension to liberal jurisprudence and thus raised awareness of the complexity of the social relations that are involved in any given instance of property relations⁴.

Social relations as starting point.

In a related context, yet with a different analytical approach, Sol Picciotto takes note of the importance of the starting point in analyses of property: “Property should be thought of in the first instance as social” (2003).

In formulating what can be understood as a general understanding of property relations, Irving Hallowell, following the versatile Huntington Cairns (1935) and Hohfeld, emphasises the triadic character of the institution of property. In a classic anthropological theory essay from 1955 Hallowell writes: “’A owns B against C’, where C represents all other individuals” (Hallowell 1974: 239). The dominion conception of property, by contrast, is dyadic. A dyadic conception of property would propound that A owns B, without C even entering into the equation. The difference is one of starting point, where the dyadic conception fails to see that the notion of an entitlement logically implicates those whom it is an entitlement against.

The triadic understanding as a starting point in analyses of property relations permits a more thorough understanding of property relations in general. It also facilitates and enhances an analysis of any given particular set of property relations within a specific economic system or culture, such as capitalist democracy.

“If we wish to understand property as an institution in any society our primary concern must be an analysis of the pattern of rights, duties, privileges, powers, etc., which control the behavior of individuals or groups in relation to one another and to the custody, possession, use, enjoyment, disposal, etc., of various classes of objects. In such an undertaking we have to reckon with an exceedingly complex network of structural relations and a wide range of variables, the specific pattern or constellation of which constitutes the structure of property as a social institution in any particular case.” (Hallowell 1974: 239)

Here we have the definition of property with which I would like to start. Property relations, on this view, are social relations. These social relations make up and are shaped by a “pattern of rights, duties, privileges, powers, etc., which control the behavior of individuals or groups in relation to one another and to the custody, possession, use, enjoyment, disposal, etc., of various classes of objects”. The etceteras of the definition might worry the analytic philosopher, but they open up the general concept of property to a wide variety of particular configurations. This open definition should not prove to be controversial. It is reflected in Jeremy Waldron’s work where he defines property as “the concept of a system of rules governing access to and control of material resources” (Waldron 1988: 31). It is taken for granted in the elaborate frameworks that Andrew Reeve (1986), and John Christman (1994) present, as well as in discussions of intellectual property rights, such as Hettinger’s “Justifying Intellectual Property Rights” (1989). All start from a perspective of property as social relations between people with regard to things – patterned by legal or customary protocols that guide behaviour.

As already mentioned, Harris’s authoritative treatment of property, however, argues that property protocols have distinctive features without which they might still be protocols guiding people’s behaviour with regard to things, but they would not be property protocols. It will be instructive to familiarise ourselves with Harris’s terminology and account at this point.

1It is beyond the scope of this essay to discuss Proudhon’s analytical work further, but Waldron (1988: 323-330) provides a good starting point for an understanding of Proudhon’s analysis, which, to put it in very simple terms, for example takes not of the fact that: If a justification of private property is based on the idea that it is good and essential for a human being to have and to hold private property rights, then all human beings should have and hold such private property rights, unless a society wittingly wants to create inequalities.

2Hohfeld was convinced that “if all more complex legal conceptions were reduced to combinations of these various bi-party relations, legal reasoning would be clarified, fallacious conceptualization would be avoided, and genuine normative choices made apparent” (Harris 1996: 121).

3Misreadings of Hohfeld have led to the disaggregation thesis (most prominently developed by Grey 1980), in which property as a concept is rendered (legally) useless. Property “disintegrates” and leaves only rights-duty relations between persons, the “owner” becomes invisible as emphasis is placed on different people having different rights with regard to the same resource (cf. the “bundle of rights” conception), thereby obscuring further the projection of the king into the sovereign individual.

Call for Contributions to Volume 2:

Download a PDF of the call.

Introduction.

In legal and philosophical terms the organisation of a commons is encoded into property protocols, which structure its use, access and decision-making rights and responsibilities. Property, then, is central to debates about commons and commoning: how do commoners relate to each other with regard to a given resource and how is a commons defined vis-a-vis the rest of the world?

As discussed in Volume 1, property relations are not only exclusive, private property rights as instantiated within capitalist democracy (a particular conception of property). As a jurisprudential concept, property can be used to understand, analyse, reflect upon and organise social relations with regard to things in any context (the general conception of property). The conflation of the general with the particular conceals the historical and anthropological fact that property can be and is understood (very) differently and hence consolidates existing property regimes.

The purpose of this two volume Special Issue is to instigate further debate about property, commoning and commons. The call for contributions to the second volume continues on page two, following details about the first volume.Volume 1: Property, Commoning and the Politics of Free Software, Issue 14, Winter 2010.

The first volume features a three chapter essay derived from a PhD thesis titled “Property, Commoning and the Politics of Free Software” and was published in The Commoner as Issue 14, Winter 2010. In three closely connected chapters – (i) ‘Free Culture in Context: Property and the Politics of Free Software’ (ii) ‘Properties of Property: A Jurisprudential Analysis’, (iii) ‘Free Software as Property’ – this volume contextualises the political economy of Free Software (and Free Culture) within a wider analysis of property relations through a philosophical and political inquiry into the materiality of immateriality from a commoners perspective within a framework of intergenerational struggles for self-determination, autonomy and community-led development.

For Volume 2 we are inviting two kinds of contributions.

On the one hand we are calling for stories about existing or emerging commons. Are you involved in a community-supported agriculture project, a Free Software project, a permaculture eco-village, a housing co-op or any other form of commoning and would you like to share a max. 5-10 pages story about how your group came together and how your commons is structured? We are looking here for practical insights into how social relations with regard to things can be configured in ways that are not dictated by capital. We are particularly interested in accounts that illuminate how communities share, develop and use resources and land in common. This will be helpful for other commoners by providing inspiration – a form of skill-share. It offers a platform to publicise your commoning project (of course anonymous stories are welcome for obvious reasons) and maps the territory of social relations with regard to things that are not defined by the measure of capital.

On the other hand, we are calling for academic pieces, theoretical musings and also responses and critiques to Volume 1, which aims to come to terms with property, commoning and commons in the context of Free Software.

The central purpose of this two volume Special Issue is to enrich and reanimate the language of property and explore the extent to which it is useful for projects of commoning, however we also welcome arguments for why property should not be applied to commons, in order to diversify the debate and open up for all critical questions concerning property, commoning and commons.

The deadline is – loosely as always – May First, 2011. Feel free to get in touch if you have suggestions for contributions: m.pedersen -at- lancaster.ac.uk

See http://www.commoner.org.uk for further details.

The excerpt is without page numbers and with the footnotes as endnotes and other bits of formatting (especially lost italics for emphases) mangled in the transition from OpenOffice.org to WordPress.  If you want proper formatting, get this excerpted PDF (pages 143-152), or the full chapter or the entire essay. See also ‘Free Software as Property’ for an application of the critique.

The distribution of care and the tragedy of the commons.

The Tragedy of the Commons (Hardin 1968) is a story that has been much debated since its publication, but the terrain that it covers is not new. It can be traced back to the distribution of care, a philosophical concept first introduced by Aristotle. The distribution of care concerns who takes care of what and how with regard to goods and resources. For Aristotle, care would be most adequately administered if distributed to individuals, not managed in commons. He took note of “how immeasurably greater” the pleasure is, “when a man feels a thing to be his own” (Aristotle, Politics, Book 2, Part 5). Accordingly, he did not have great sympathy for commons:

“What is common to the greatest number gets the least amount of care. Men pay most attention to what is their own; they care less for what is common; or at any rate they care for it only to the extent to which each is individually concerned. Even when there is no other cause for inattention, men are more prone to neglect their duty when they think that another is attending to it” (Aristotle, Politics, Book 2, Part 3).

The story of the tragedy of the commons runs along similar lines. It was communicated through the imagined organisation of a fictitious pasture: if a group of herders owns a pasture in common, to which access is “open and free”, there is no reason for each of the herders not to expand their herd. And if there is no reason not to expand, they will do so – at least so the story goes – soon leaving them all with too little grass and space for their respective herds. The result is that the pasture becomes overused, and hence all the herders suffer: a tragic breakdown and collapse of natural resources. Moreover, if the pasture is shared between all, it opens the possibility of individual herders free-riding on the work of others. Of course such concerns also apply to the intangible realm, since complex computer programmes, encyclopaedias, journals and large-scale scientific quests in general, require a successful distribution of care, just like pastures.

If, however, the pasture is split up into exclusive parcels, the herders will each manage their respective parcel in a sustainable manner according to their own self-interest. According to the logic of the market, then, whoever cannot handle their parcel profitably will be bought out by one of the others, who has been handling his own parcel so successfully that he has accumulated an excess of wealth with which he can buy out his competitor (and subsequently – quite possibly – employ him on the basis of wage relations to do the exact same kind of work, but for less return and without the joy associated with ownership, as stated in the Aristotelian premise).

Looking at the story of the tragic commons from a different perspective, however, we may say that the herders would be better off sharing a pasture in common, since the rain, the wind and the sun do not obey human property laws. Hence the rain may fall, the wind may blow, and the sun may shine unevenly and consequently there would be a need to be able to move the herds around in a manner more flexible than what is afforded by splitting the pasture up into exclusively owned parcels¹. In other words, overuse is just one of many possible outcomes to be taken into account in the organisation of a common pasture. Moreover, the Aristotelian premise that distribution of care is better achieved when people have a sense of ownership hardly helps to make the case for a system that concentrates ownership in the hands of the few and renders the many employees – or unemployed.

Hardin’s tragic story is not the only one of its kind and certainly nothing new². Hardin complemented Mancur Olson’s “The Logic of Collective Action” (1965) which reiterates the Hobbesian proposition that individuals are self-interested and will not, unless there is an external, coercive mechanism, produce common goods or achieve collective ends. Olson’s and Hardin’s justifications for a market economy and a central authority with powers of coercion are both structured according to what is known in game theory as an n-person prisoners’ dilemma (Dawes 1973), and have long been refuted through many empirical examples (see next section) and on purely logical grounds (especially Taylor 1976, 1982, 1987; Ostrom in Baden and Noonan (eds.) 1998). The assumptions of the tragedy of the commons, however, run deep. The phenomenon of Free Software, for example, has been called “the impossible public good” (Smith and Kollock 1999). Cooperation and commoning are still assumed to be unlikely beyond the market and the reach of a coercive authority. And care is still thought of as best distributed by enthroning little monarchs with each their private property realms, despite plenty of evidence that, while care might coincide with self-interest or other private purposes, it very well might not.

Commons in the world.

Elinor Ostrom, beginning with her doctoral field work in the mid 1960s (but see particularly Ostrom 1990, 2000) has unpacked the Tragedy of the Commons empirically, and thereby challenged the conventional wisdom that common property is poorly managed and should be either regulated by central authorities or privatised³. By investigating real-life commons, such as fish stocks, pastures, woods, lakes, and groundwater basins, which people have sometimes for over centuries managed and cared for in common, Ostrom has shown that:

“…there is no reason to think that the only forms of resource governance must come from individual ownership on the one hand, or from central governmental management on the other … communities clearly refute the idea that the commons is necessarily “tragic”” (Rose 2003: 106).

Instead of corroborating the idea that human beings are naturally self-interested and therefore must be coerced to cooperate, Ostrom points to future areas of research to better understand how resources can be shared. Drawing on her research findings, she confirms that free-riding is a problem, she admits that some people do indeed seem to not naturally cooperate, but that, also, many people happily cooperate on a voluntary basis.

The real tragedy of the commons, then, is their enclosure, that is the destruction of commons by privatising forces. After all, “[t]he commons did not collapse, they were “stolen,” as common sentiment at that time expressed it” (Siefkes 2009).

Crucially, contrary to Hardin’s fiction, the sharing of a pasture in real life happens in community. Open-access commons, of Hardin’s tragic kind, are governed by only one rule: anything goes.⁴. Anyone with access to the resource can take from and do with it what they will. Most existing commons, however, are highly structured commons with a set of principles, rules, norms and, in general, specific ways of living together in order not to face a tragedy. These community-defined rules and principles have developed over time through cooperation and in the case of natural resources, observations of the land. Communities structure commons and commons structure communities. As De Angelis notes:

“By assuming that commons are a free-for-all space from which competing and atomised ‘economic men’ take as much as they can, Hardin has engineered a justification for privatisation of the commons space rooted in an alleged natural necessity. Hardin forgets that there are no commons without community within which the modalities of access to common resources are negotiated. Incidentally, this also implies that there is no enclosure of commons without at the same time the destruction and fragmentation of communities” (2004: 58).

Rebuilding commons, it is implied on that view, is to rebuild communities and vice versa: the rebuilding of communities is the rebuilding of commons. In Chapter 1 we discussed the problem of virtual commons detached from real commons becoming – if we follow the money – capitalist commons. When detached from real commons, the virtual commons has no body and no connection to the land and therefore, crucially, no proper connection to social movements for whom access to and control over land as a means of subsistence and production are the most pressing concerns – and for whom a virtual commons is meaningless without having land to put their feet on.

Consider the Landless Workers’ Movement (MST) in Brazil, which counts more than a million people who collectively are challenging extreme inequalities: nearly half the land is owned by just over 1% of the population (McNally 2006: 285). The MST have clear objectives aiming at a radical social transformation:

“We have three fences to cut down … the fence of the big estate, the fence of ignorance and the fence of capital … Our struggle is not only to win the land … We are building a new way of life” (quoted in ibid.)

Opposing the state and private interest is not a peaceful affair. At least 1,684 assassinations of landless workers took place between 1964 and 1991 and MST activists are “regularly murdered by soldiers and military police” (ibid.). However, despite the nation state and private property working against them, stifling their cooperation, the MST has carried out more than 1200 land occupations, expropriated more than 50,000 square kilometres of land and established settlements for more than 100,000 families (ibid.). According to their slogan “Occupy, Resist, Produce”, the MST does not advocate individual ownership of land and the means of production, but supports cooperatives for agricultural production and factories, which handle meat storage, milk packaging and coffee roasting. McNally writes:

“Once land is occupied, an MST encampment is set up and organized democratically. Decisions are made collectively with a general assembly constituting the highest decision-making body … It has established 1,200 schools and operates thirty radio stations. Finding that mainstream teachers are not adequate to the task of building a culture of liberation, the MST has developed its own teacher training programs” (ibid.).

If Free Software is an “impossible public good”, which only really exists because it rides on the surplus of capitalism and because it unfolds in the intangible realm where reproduction costs are minimal and the rivalrousness of goods absent, then the achievements of the MST are approximating a miracle. Making sense of such social movements in philosophical, legal and social terms can obviously not commence from a starting point that entails the assumption that their achievements are impossible. In order to facilitate the work of these social movements and to begin creating a jurisprudential framework that can be used for an articulation of their property relations – with a view to self-legislation – we obviously need a different starting point.

Learning from property.

My starting point is not merely that sustained cooperation, commons and community building are possible, but that they are essential. I maintain that commons continue to be under threat of enclosure. Privatisation of land, its resources and the means of production and distribution is relentless and noxious to people, their relations and the environment. The use and abuse of these resources inevitably implicate everyone, and hence decision-making powers over them should not lie exclusively with individuals or, possibly worse, quasi-individuals whose pursuit of self-interest is authorised without further justification.

But private property is also enabling. It licenses creativity and open-ended agency, potentially free from the interference of other individuals, the state or another overarching political authority. Private property goes hand in hand with the creation of a legal individual whose rights are inviolable. It sanctions life and liberty for an individual whose agency and creativity are, potentially, open-ended. It makes a person’s body and her creations her own. It defines the individual’s realm, in which she can build her castle or tear it down – at least theoretically, for those who are in a position to exercise their private property rights. The question then arises, however, how big can the castle be?

I believe that there are lessons to be learned in the examination of the particular configurations of private property: understanding private property and the way it functions is indispensable to any attempt to constrain its reach, transform, or indeed, dismantle it. As we shall see in Chapter 3, the Free Software commons is in fact dependent on a particular version of private property – namely copyright – which it subverts to its own ends by using its power of decision-making to instantiate a commons that ensures reciprocity in perpetuity. As a property model, Free Software is grafted onto copyright, using the power of its enforcement mechanisms to ensure certain freedoms for all. We will understand Free Software better, when we understand it as property. And we will understand property better, when we understand it as including commons.

My discussion in this chapter will begin with a disentanglement of property in general and propertyin particular. I will then explain in more detail the notion of property relations as relations between people with regard to things, and property protocols as those normative codes that structure these relations. This will give us the basic structure for developing a framework within which social relations with regard to things can be understood – be they structured through law and private property rules, through the emergent customs of commoning practices, or any other property system. I begin with three variables only: the relating subject; the related-to object; and the relational modality, which is defined through property protocols. I examine the relational modality of private property relations in some detail, and show that it consists of several elements, which enable its functions. Changing these elements, or reconfiguring the specifications of private property even in only small ways, can lead to surprising transformations of the kind of community that this relational modality gives rise to. Next, I discuss the ways in which common property forms are usually classified and distinguished from private property, which shows that the differences between different property forms are all differences in the configuration of, essentially, the same elements. Indeed, I conclude that property protocols, whichever way they may be expressed, all provide answers to the question of who makes (or can make) decisions over the actions of people with regard to things, and by reference to what these decisions are legitimised. I then argue that it is through the articulation of property protocols that a commons self-constitutes.

I hope to show that a property framework can be a useful toolbox for the commoner, as well as that by inscribing commoning onto the framework, new tools and perspectives for property analyses become available more generally.

1The obvious reply from the privatiser to this is that such re-distribution of rain and sun can be solved by private contracts, but the question for the community of herders practising their customs in common would still remain: why split up the pasture in the first place?

2Ostrom notes: “In 1833, William Forster Lloyd sketched a theory of the commons that predicted improvident use for property owned in common. More than a decade before Hardin’s article, H. Scott Gordon clearly expounded a similar logic in another classic, “The Economic Theory of a Common-Property Research: The Fishery”” (Ostrom in Baden and Noonan (eds.) 1998: 96.)

3For her trail-blazing work to reinstate the validity of the commons as a strategy for managing natural resources, Ostrom was awarded the 2009 Nobel Prize in Economic Sciences (The Royal Swedish Academy of Sciences 2009).

4Hardin later admitted his original conflation of open-access commons with structured ones in personal communication with John A. Baden (Baden and Noonan (eds.) 1998: xvii). However, I am here not addressing Hardin’s personal intellectual development, but the continued force of his fiction in the context of public policy.

If you want footnotes etc. get this excerpted PDF (pages 92-107), or the full chapter or the entire essay. See also ‘Free Software as Property’ for an application of the critique.

Property and the tangible/intangible divide: a policy of what?

In this section I examine the reasoning behind the particular framing of the intangible realm that characterises information exceptionalism.

Siva Vaidhyanathan, prominent cultural environmentalist and professor of Media Studies and Law at the University of Virginia, writes that “[i]t is essential to understand that copyright in the American tradition was not meant to be a “property right” as the public generally understands property” (2001: 11) and “[c]opyright should be about policy, not property” (ibid: 15) and “[c]opyright is not property as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons” (ibid: 253). Moreover “[c]opyright was a matter of policy, of a bargain among the state, its authors, and its citizens” (ibid: 23) and “Jefferson even explicitly dismissed a property model for copyright” (ibid.).

That copyright is a matter of policy, not property might sound strange to a lawyer or a philosopher trained to understand copyright as a particular instance of property relations with a temporal limit and who understands property as a matter of policy. Some things do not quite add up. Nevertheless, that copyright is a matter of policy, not property, is a point that the founder of the Free Software Foundation, Richard Stallman, together with other advocates of “Free Culture”, wants us to accept¹.

Essentially, the Free Software and Free Culture movements reject the concept of property and instead choose to frame issues pertaining to ideas, information and knowledge – or the intangible realm – in terms of freedom, liberty, human rights, policy, intervention, and regulation. Anything but property, but preferably “policy”.

Two mediate questions arise from this position: (i) What is policy? (ii) Why should we choose to adopt one term instead of another? I will answer them in turn.

What is policy? Is there something in the word that clearly delimits it from property? What does policy actually mean and where does the term come from? It is term that is etymologically compounded by two roots. The Greek “polis” – πόλις – which means “city” or “state” and also “citizenship” or a “body of citizens”. In other words, a rather general term suggestive of “political society” and those “who make up that society”, either individually or collectively, or their status within that political society. The second root of policy is the Latin “politus”, which means “polished” in the sense of “refined”. In late Middle English the compounded “policy” ambiguously referred to “political sagacity” and “political cunning”, the former presumably the meaning it had for those in power, while the latter likely reflects the views of common people. Despite the ambiguity, or perhaps exactly because of this ambiguity, policy referred to “what those in power are doing, how they rule society”. The modern term policy, then, enters the English language conveying the meaning of “a constitution”, which is now rare or obscure, but in 18^th century political science referred to “government, administration”; or was equated with “polity”, which in turn meant “civil order”, “administration of a state”, “civil government” or “a particular form of political organization” (OED 1955: 1536-1537)². In other words, policy is a broad term that we may say refers to a variety of activities that a state performs as part of the governance of its people.

In the context of capitalist democracy, therefore, the conventions that institute its particular form of private property is a central part of the state’s policy. It is a policy that gives rise to certain laws, such as “theft” codified into a statutory offence in the Theft Act 1968 in the UK, where Section 1 reads “A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and “thief” and “steal” shall be construed accordingly” (Theft Act 1968). Private property is part of the state’s policy and the Theft Act is an enactment of that policy, which is necessary to secure the stability of possessions as declared in the policy.

If we return to the claim that “copyright is policy, not property” it becomes obvious that there is a conflation at play, which is deployed for tactical purposes. The choice of policy over property is presented as a matter of tactic, rather than analysis: tactically it is decided to focus on “policy”, despite an analytical awareness that property can take on many different forms. This tactic is chosen on the assumption that the public cannot understand the term “property” in the way that lawyers and philosophers are able to.

However, property is a form of policy – or it is a manifestation of policy. We may say, for instance, that “private property is a central ingredient in foreign aid policy in order to further entrepreneurship” or that “private property was central to Thatcher’s reasoning for the policy to turn council housing tenants into house owners”. Or, expressed differently:

“If it is true—as it must be—that copyright is policy, then it is equally true that all property rights are policy” (Mossoff: 2005: 33).

The claim that copyright is a matter of policy, not property can also be unpacked differently. Instead of arguing whether property means this or property means that – in the context of what are essentially artifices of justice at any rate – we can ask what debates around each of these respective issues entail. What kind of questions are asked in discussions about property relations and what kind of concepts are at play in discussions about copyright. Here it “is easy to see that every tangible property entitlement has arisen from a crucible of moral, political, and economic analyses, and thus implicates the same questions about utility, personal dignity, and freedom that now dominate the debates over digital copyright. The preeminent property cases that every law student studies in the first year of law school are exemplars of this basic truth” (ibid.). Nevertheless, investigating the claims of the “information exceptionalists” further will be instructive³.

As part of the tactic to substitute policy for property in the context of understanding copyright, Free Culture advocates claim that copyright understood as property is a modern invention carried out by scheming corporations using the rhetoric of (natural) property to distort the public perception of the underlying and original policy of copyright (Stallman 2004)⁴.

However, the

“…story supposes that a multilateral treaty would be written and an international agency established with a wholly new name that no one was familiar with. In fact, WIPO’s predecessor international agency was called the “United International Bureaus for the Protection of Intellectual Property.” It was commonly known by its French acronym, BIRPI. BIRPI was formed in 1893, as a combination of two small agencies that had been established to administer, respectively, the Berne and Paris Conventions. Thus, “intellectual property” was a conscious, nineteenth-century category created to subsume both “literary property” (Berne) and “industrial property” (Paris).” (Hughes 2006: 1005-1006)

Further good evidence for the tradition of understanding copyright and patents as property has been provided recently as a response to these seemingly misleading claims:

“There can be little question today that intellectual property assets are forms of “property.” The Patent Act expressly declares that “patents shall have the attributes of personal property” and the Supreme Court acknowledges them as such. The Copyright Act states that “ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.” (Menell 2007: 37)

Consider also a publication that pre-dates cultural environmentalism and Free Culture:

“English law has considered copyright a form of property. An 1842 decree asserts that “Copyright … shall endure for the Natural Life of Such Author and shall be the Property of Such Author”. In other decrees the terms “the owner of the copyright,” “ownership of copyright” and “proprietary rights” are mentioned“ (Matuck 1993: 406; see also Mossof 2005, 2007).

There is no evidence to suggest that intellectual property is a new term, on the contrary. To understand why Free Culture and Free Software advocates are rejecting the term, we need to understand their perception of the public imagination and the public’s capacity to understand issues concerning property and social organisation. Lessig explains:

“If you’re a lawyer, it’s OK to think of intellectual property as property, because we’re trained to use the word property in a careful way. We don’t think of it as an absolute, perpetual right that can’t be trumped by anybody. We understand property rights are constantly limited by public-use exceptions and needs, and in that context we understand intellectual property to be a very particular, peculiar kind of property — the only property constitutionally required to be for limited terms. It’s clearly established for a public purpose and is not a natural right … The real problem is when people use it in the ordinary sense of the term property, which is “a thing that I have that nobody can take, forever, unless I give it to you.” By thinking of it as property, we have no resistance to the idea of certain great companies controlling “their” intellectual property forever. But if we instead use terms like monopoly to describe the control that companies like Disney have over art objects like Mickey Mouse, it’s harder to run naturally to the idea that you ought to have your monopoly right forever” (interview in Walker 2002).

Copyright, then, is property, for a lawyer and a philosopher, and property for a lawyer and a philosopher is not simply private property based on a natural right that requires no justification. For the “public” and in “ordinary” usages, on the other hand, property is a natural right according to Lessig; Stallman agrees:

“I, along with most people, consider property rights as natural rights, something people are simply entitled to. They don’t need any specific justification; rather, exceptions need justification” (Stallman 2007: email)⁵.

Do most people really think that, I wonder? However, it is not a question that is really relevant here. Two principles prevent us from entering into such questioning. Firstly, this is an academic and scholarly exercise, to the best of my abilities, and secondly, we are certainly not in the business of misleading “the public” on the basis of the assumption that “the public” is unable to understand property properly. If anything, a very careful explanation to “the public” of what property means for lawyers and philosophers would be called for, rather than a misleading, non-factual deviation. Such a careful explanation will be provided in Chapter 2. Let us here disentangle the confusion, which will reveal a different effect of the “framing effect”.

Stallman uses the term “framing” to strengthen the Free Culture claim and justify the tactic to treat the public as too unwitting:

“Bringing the word “property” into contact with this issue in _any_ fashion frames the issue in favor of whoever is the “owner” of the “property”. Everyone can sympathize with “Keep off my property! I can use my property any way I like.” And that is the basis that non-philosophers will use to respond to your statement … In the “network neutrality” debate, that framing favors AT&T. In copyright issues, that framing favors the author or publisher.

The issue here isn’t the history of Western modern ideas of property rights. (Property rights existed before 1700.) It’s about what people (other than philosophers) think today. I agree with you that, at the fundamental level, property rights are conventions set up by society, and that these conventions could be set up in various ways, and that we can present arguments in favor or against various proposals. None of these conventions is beyond the domain of questioning, and although I accept the idea of property rights as the default for physical objects, I can consider the question. I think you will find that a large part of the public won’t go that far. Merely to call patents a “property right” will make it difficult for many people even to entertain opposition to them.

You’re probably aware of the effect that the way of framing an issue has on people’s thoughts. Perhaps philosophers have trained their minds to the point where they can overcome this effect — but not most people. If we frame copyright issues in terms of “property”, that is in practice a terrible handicap” (Stallman 2008: email)⁶.

There is good reasoning and cogent argumentation behind the tactical choice to not frame the politics of Free Culture and Free Software in terms of property. However, I am wary of discussing legal and philosophical concepts in a way defined and determined in scope by popular opinion, especially in the context of the free flow of information, ideas and knowledge – and a Free Culture in general. I lean toward sharing knowledge and skills with “the public”, rather than simply assuming their ignorance.

Indeed, I argue that framing Free Software in terms of property has great potential. Imagine what would happen if Free Software was understood as property and the public came to learn that copyright, as a form of property, could take very different and shared and collective forms and be temporally limited. The concept of property would be relativised, so to speak, and no longer take the particular form that appears to be tattooed onto everyone’s mind, namely the kind of private property that characterises capitalist democracy. For Ayn Rand, subverting the understanding of one intellectual property right means nothing other than the dissolution of “all other rights”:

“Patents are the heart and core of property rights, and once they are destroyed, the destruction of all other rights will follow automatically, as a brief postscript” (Rand 1966: 128).

Currently, property is understood in what Stallman and Lessig so cogently noted was an incorrect manner: a natural, absolute, perpetual right to do whatever you please. Free Software, however, is very differently configured and if understood as property would force upon that concept substantial reorientation. If indeed framed in terms of property, Free Software might constitute a threat to capitalist property, because it reveals that capitalist property is only one of many possible ways of configuring property. Viewed upside down, then, the tactical framing (i.e. not in terms of property) that is central to Free Software politics, serves to protect Free Software from public misunderstanding, just as much as it serves to protect private property from public understanding.

Understanding Free Software as property potentially provides a fresh view on property that is not alien to lawyers and philosophers and which would be enlightening to “the public” (whoever that may be). It opens a door to the politics of property, which, according to the Free Software and Free Culture movements, is suffused with misunderstandings. A lack of information, I claim, is a signal to open up the black box of property and let insights circulate freely; and not a signal to keep the black box of property closed. Yet, Stallman disagrees:

“Our goal is to establish relations about software which are not property relations. There are rules, yes; but these rules are not like property rights (unless you stretch that term so far it will snap)” (Stallman 2007: email)⁷.

Snapping property is precisely what I am aiming at. The institution of property is a core element in political thought. Revisiting it, revising it, and understanding property in new contexts in the same way that you re-read a novel to grasp dimensions that you had previously failed to notice, is a recurrent political task. In times of change, when the technological, cultural and social circumstances change around us, we need to address the core rules and laws that typify society to ensure that they fit and are sensible in the new context. One such core rule or law is property and it is necessary to continuously redefine its boundaries. That is my claim, but that is also where my view diverges from Stallman’s:

“I think the “institution of property” is an overbroad idea, not useful for thinking about political issues … If [redefining the boundaries of property] is your goal, it seems that we are fundamentally opposed” (Stallman 2008: email)⁸.

Because of this divergence, the “policy approach” that defines Free Software and Free Culture is irreconcilable with an anti-capitalist position. That incommensurability is clearly reflected as Lessig states his position with regard to private property:

“I [do not] condemn “proprietary culture.” Proprietary culture has been with us from the start and for most of our history has served creativity and culture well. What I do condemn is extremism—the shift from the standard view to an extreme version of “proprietary culture” that could easily become embedded in the digital economy” (Lessig 2005: 63).

Given that Lessig primarily sees property as referring to the tangible realm only, the statement that proprietary culture serves us well must include reference to exclusive ownership of land, the means of production and distribution. In short, Lessig refers to the very heart of the capitalist economy, which social movements all over world have resisted for hundreds of years. Lessig thus defends the industrial machinery that has landed humanity in an unprecedented ecological crisis and a relatively profound and prolonged economical crisis. Private property rights are embraced uncritically – except for in cyberspace – in submission to the invisible hand with the violent fist. The uncritical view on existing property regimes is here confirmed by Benkler:

“This is not to say that property is in some sense inherently bad. Property, together with contract, is the core institutional component of markets, and a core institutional element of liberal societies. It is what enables sellers to extract prices from buyers, and buyers to know that when they pay, they will be secure in their ability to use what they bought. It underlies our capacity to plan actions that require use of resources that, without exclusivity, would be unavailable for us to use” (Benkler 2006: 23-24).

The market is a useful and integral element of a liberal society of the kind that Benkler is advocating, because it facilitates contractual relations between rational agents that enable them to plan actions and produce things. The market is good for humanity, as long as it behaves nicely in cyberspace. The point of Free Culture “is not to rethink real property but to explain the ways in which the economic theory of real property falls short when applied to the rather different world of intellectual property” (Lemley 2005: 1097). When it comes to the economic theory of “real property” as they call it, there is nothing to question, because we can “say with some confidence that a right of physical exclusion works as a legal matter because its benefits exceed its costs” (Lemley 2005: 1099):

“Real property rights do in fact serve two valuable goals. First, they prevent rivalrous uses by multiple claimants to a particular piece of property and therefore avoid the tragedy of the commons. Second, they allow their owners to invest in improving or developing the property” (ibid: 1098).

For the Free Software and Free Culture movements, we have seen, (mis)understanding property is a matter of tactic, not analysis. The overall strategy, it has been revealed, does not include a critical perspective on ownership in the tangible realm. The analysis of this chapter, on the other hand, will show that this tactical approach at the expense of a thoroughgoing, critical engagement leaves Free Software and Free Culture eternally vulnerable to enclosure. That is because exclusive ownership of the technostructural underpinning of cyberspace – the materiality of cyberspace, as it were – permits those owners to seek rent in and prioritise traffic on their network: exclusive, private ownership in the tangible realm permits an extraction of wealth from activities that unfold in the intangible realm. There is no such thing as a purely immaterial mode of production or circulation, not even dreaming or telepathy come close. Nothing in cyberspace exists without a material foundation, as we shall see in the next section. For that reason, Free Culture must appeal to the state to ensure that capitalists play ball in cyberspace and do not extract wealth in the manner to which they are accustomed.

By implication, then, Free Culture requires a strengthening of the state – and an always strong state – while the problems of private property rights in the tangible realm remain unquestioned. Consequently, the novelty of the social relations for which protection is sought are instead conceptualised in terms that rather permit for market forces to profit from them, than provide protection in a substantial sense. From an anti-capitalist perspective the celebrated co-productive relations are hence lost in the sense that they are not applied to that province of our knowledge and legal systems called property. It is, however, a desolate province in urgent need of cultivation. Understanding Free Software as property and commons-based peer production as a new mode of production that instantiates a non-capitalist space in society on the basis of novel property configurations, I argue, will cultivate an understanding of property that is very instructive.

1The presentation of the Free Software Foundation’s position on copyright as policy, not property that follows is in great part an outcome of an extended email exchange with Richard Stallman. In order to understand FSF’s view on these matters I commenced the exchange and sent, so far, 44 emails between May 12, 2007 and January 30, 2008. Stallman responded with 58 emails between May 13, 2007 and January 18, 2008. In the original thesis manuscript I sincerely thanked Richard Stallman in the acknowledgements for taking his time to engage in this exchange. I do so here again.

2The term also means “a document containing an undertaking … to pay a specified amount … in the event of a specified contingency”, or a “promissory note”, both of which are suggestive of the contemporary usage in “insurance policy”.

3I am slightly altering Mossoff’s (2005) terminology, who calls the Free Culture advocates “Internet exceptionalists”.

4This “fact” has a curious history in itself. Hughes (2006) calls it a result of the “scholarly house of mirrors” (ibid: 1001) and notes that it seems to first appear in Vaidhyanathan (2001: 11-12) in reference to Lemley (1997). There is no other origin of this “fact”, which has become common currency in the Free Software and Free Culture movements. As Hughes writes, it was cited twice by Lessig in footnotes stating “the term intellectual property is of relatively recent origin” (2004) and “a touch less guarded … “the term is of recent origin”” (2001). Stallman uses the authority of “Professor Mark Lemley, now of the Stanford Law School” to state that “the widespread use of the term “intellectual property” is a fashion that followed the 1967 founding of … (WIPO)” (Stallman 2004). It turns out that Lemley casually, in a footnote, mentions that the “modern use of the term “intellectual property” as a common descriptor of the field probably traces to the foundation of the World Intellectual Property Organization” (Lemley: 1997: 895; emphases added). This clearly shows that he is not speaking of copyright, but of the subsumption of all of the particular legal arrangements known as intellectual property rights under one common banner. On the other hand it shows the “viral power of a statement by a respected academic” (Hughes 2006: 1003). Moreover, the publication in which Lemley gave birth to this fast circulating “fact” was in fact a book review of James Boyle’s seminal work (1997), the work with which Boyle founded the cultural environmentalism movement (which has become synonymous with the Free Culture movement). Lemley’s review was relevantly called “Romantic Authorship and the Rhetoric of Property”.

5Email written December 29, 2007. On file.

6Emails written January 17, 2008, and January 18, 2008. On file. The concept of “network neutrality” will be explained in Section 1.4.2

7Email written May 15, 2007. On file.

Cyberspace is disembodied not only in the sense of being technologically mediated, or virtual, but also because it is continuously represented as if it were not highly dependent on the material realm for machines and minerals and energy. Understanding the dynamics of cyberspace in terms of property – the language of social relations with regard to things – is a good starting point for exploring the concept of property. It is a recursive process that generates a new understanding of property, which in turn might facilitate the emergence of further permutated relational modalities. If the world were a commons and property an open-ended toolbox for the self-articulation of value practices, then commons would probably blossom. Property seen through the lens of spontaneously emerging social relations – whether in cyberspace or landless movements in Brazil – opens the black box of property and reveals building blocks that can be recombined in very many ways. With an enriched understanding of property, private property might – in line with the anti-capitalist hopes that have animated this essay – be limited to (something like) personal possessions. Rights of commoning can then be substituted for private property in land, its resources, and the means of production and distribution (p. 290).

Pedersen, J.M. (2010) ‘Conclusion: Property and the Politics of Commoning‘, The Commoner, Special Issue, Volume 14, Winter 2010, 287-294.

It is reproduced here (and also excerpted in a .PDF):

Map of the essay.

Chapter 1 – Free Culture in context – is a critical discussion of the way in which a number of key commentators are framing the politics of cyberspace. I argue that their framing of the debate is mistaken in two key ways. First, it conflates private property (a particular configuration of property) with the concept of property in general. Second, it relies on an untenable distinction between the tangible and intangible realm, which I examine in detail with reference to the commons of the land.

Section 1.2 – Beyond property: promises of the networked information society – introduces cyberspace in terms of libertarian values, the techno-social promise of a “single consciousness” in a “global village”, and the architecture of the Internet. It then discusses a liberal, economistic conceptualisation of the novel co-creative social relations that cyberspace facilitates. The libertarian voices in cyberspace reject the industrial age governments, who have “no sovereignty where we gather”, and state that property does not apply to cyberspace, because it is a space without matter. A brief technical overview of the Internet reveals its end-to-end (E2E) architecture which facilitates peer-to-peer (P2P) activities and ensures that all data flows equally through the Internet: the network is “neutral”, because all flows of data are equal before the law of the Internet. Network “neutrality” and E2E + P2P is seen as the foundation for a new mode of production of which the very successful example of Free Software is most significant. In his conceptualisation of Free Software, Benkler (2006) has coined the term “commons-based peer production”, which is a specific type of “peer production”, all of which he groups under the umbrella term “social production”. In presenting Benkler’s work I also examine his sources of inspiration in order to locate his contribution within economic thought and hence illustrate how social production is framed and thus, to a significant extent, given shape.

Section 1.3 – Information exceptionalism: protecting social production and the Internet commons? – begins with a brief overview of the politics of intellectual property, which has become an important part of the global political economy. Next, I return to the two-fold claim that cyberspace has no matter and that property applies to matter only. It is a shared claim that defines the Free Culture movement, which has been inspired by the Free Software movement to protect the freedom to share and cooperate in cyberspace. This position with regard to property I refer to as “information exceptionalism”. While information exceptionalism sets out to protect social production and the cooperative potential of cyberspace, I argue that the insistence on a distinction between the “tangible realm” and the “intangible realm” has important political consequences. I show that information exceptionalism partly rests on a mistaken contrast between property and policy, and begin to develop the argument that understanding Free Software in terms of property is a recursive process through which the concept of property comes to be seen in a new light.
Section 1.4 – Material foundations: on cables and machinery, food and shelter – examines the material underpinnings of cyberspace to exhibit the effects and scale of material and energy use involved in information and communication technology. I illustrate how exclusive control and decision making authority over material foundations (given through private property rights) facilitates an extraction of wealth from activities unfolding in the intangible realm that is dependent on this materiality. I hence argue that the intangible realm is threatened by enclosure in the first instance not due to the expansion of private property rights into the intangible realm, but because of the existence of capital interests – based on private property rights – in the tangible realm. I thus conclude that the threat of cyberspace enclosure cannot be confronted simply by rejecting property rights in the intangible realm, because their existence in that realm is primarily an effect. It is also necessary to address the actual cause of enclosure as it exists in the tangible realm, and which arises from exclusive control over land, its resources, and the means of production and distribution. Moreover, by positioning themselves in this way, information exceptionalists fail to show solidarity with the commons of the land, that is, the real commons. The virtual commons are thus disembodied and left vulnerable to the exigencies of the material realm. Consequently, they are in perpetual need of a strong state for regulatory intervention in order to continuously limit the reach of capital.

Chapter 2 – The properties of property – is an analytical disentanglement of property in particular (as in the form of private property) from property in general (as social relations with regard to things). The purpose is to provide a framework within which the social relations of commoning can be understood alongside other variants of property relations, such as private or public property. The aim of this chapter is less normative than it is analytical: property is made up of components that can be configured in different ways. Understanding the elementary structure of property facilitates its reconfiguration. While providing mainly a structural account of property, I nonetheless start from the normative assumption that private property can only be justified for real persons and only for a limited number of things. The institution of property distributes decision-making authority over access to and use of resources in societies. Private property invests such authority in individuals and quasi-individuals, such as firms, authorising their pursuit of self-interest. While private property as sovereignty might develop personal autonomy and identity, enable open-ended creativity, and constitute protection from external interference, in capitalist democracy, it primarily legitimises profiteering in the interest of shareholders. As against the popular myth of the “tragedy of the commons”, I hold that care for things such as land, its resources, and the means of production and distribution is best achieved collectively.

Section 2.2 – Property in general, property in particular – is an introduction to the complexity and elusiveness of the idea of property. It presents and relativises the idea of property as dominion: the absolute control of an individual over a thing of the external world. While this conception runs deep in much philosophical and everyday discourse, it is argued that no legal system has ever instituted property relations that were absolute in this sense. Limitations are part of all known property regimes. I will introduce the work of James Harris in this section, who has forcefully argued that despite the importance of limitations, the conception of property as dominion is presupposed in all legal systems.

Section 2.3 – Property as social relations – is an explanatory, gleaning journey through key texts and concepts in liberal jurisprudence. I begin this section with an exposition of W. N. Hohfeld’s matrix of jural relations which correlates rights and duties and powers and liabilities. Using an anthropological application of that matrix, and support from within liberal jurisprudence, I argue that property is normative protocols guiding relations between people with regard to things. Next I draw upon Harris’s account of property as a mechanism for distributing control powers and use privileges with regard to resources. I adopt Harris’s characterisation of private property as authorising self-seekingness in one’s use of and control over things. While I agree with his view that all property relations in capitalist democracy are developments of the fundamental idea of dominion, I argue that it is crucial to begin an account of property with the open-ended idea of social relations with regard to things. To do so is to confront the hegemony of private property in political and legal theory, as a corollary of its confrontation in practice.

Section 2.4 – A framework for property as social relations – introduces three core variables of property as social relations with regard to things. The relating subject refers to the social unit within which property relations hold and are performed, usually a community; the related-to object refers to the thing or resource with regard to which property relations hold and are performed; and the relational modality refers to the way in which these relations are shaped through normative protocols, by guiding the behaviour of people with regard to one another and the use of things. I discuss these variables and their possible extensions at length, and argue that property relations are primarily about actions, and property protocols hence about enabling or constraining action. I also make the case that property protocols inhere in customary practices and values as much as in legal codes and otherwise articulated norms. This is important as I want to be able to account for commons, and traditional relations and practices of commoning, as property. I conclude that in order to understand what it means to own something, an inquiry into the relational modality of any given form of property is indispensable.

Section 2.5 – Specification of property: the configurations of relational modality – is an examination of the elementary structure of private property. Following Harris, I show that basic private property consists of a collocation of legitimised control power and use privileges. Control power is legitimised in the sense that, short of contravening criminal and other law, whatever decision the owner makes with regard to the use of a thing is justified, simply by virtue of being her decision. I provide heuristic diagrams in order to bring to the fore the different elements which make up basic private property on the one hand, and capitalist private property on the other. Capitalist private property is characterised by a collocation of control power not only with use privileges, but also with wealth effects, or income rights. The collocation, however, is by no means a necessary one. Moreover, a justification of one of the elements (control power) does not amount to a justification of another element (wealth effects). I show by way of illustrative examples that changing the structure of private property, or reconfiguring its specifications, even if only in small ways, can lead to surprising transformations of the kind of community that this relational modality gives rise to.

Section 2.6 – Property and commons – discusses the ways in which common property forms are usually classified and distinguished from private property, and the ways in which commons can be understood as particular kinds of property configurations. I note that the values underlying private property are in important ways the common values of capitalist democracy. This points towards the view which I further develop later in this section, namely that capitalist democracy is, in some not insignificant way, also a commons. A discussion of three different accounts of common forms of property (Benkler, Waldron, Harris), shows that the differences between different property forms are all differences in the configuration of, essentially, the same elements. The substitution of “social interest” for “legitimate self-seekingness” is identified as the key characteristic of non-private property forms. I argue that property protocols, whichever way they may be expressed, all provide answers to the question of who makes (or can make) decisions over the actions of people with regard to things, and by reference to what these decisions are legitimised. In order to develop an idea of a self-constituted commons within capitalist democracy, I use Harris’s account of communitarian property, which he sees as a form of resource-holding that is recognised by, yet autonomous from, the wider legal system that surrounds it. I argue that the articulation of property protocols facilitate such self-constitution.

Chapter 3 – Free Software as property – is a detailed exposition of the Free Software movement, its history, practices, and legal innovations. I cast it as a commons that has autonomously constituted itself. The aim of this chapter is to show how and why it makes sense to understand Free Software as property. Not only is the central achievement of the Free Software movement the reconfiguration of core elements of copyright, that is, a transformation of property relations, but conceptualising the relational modalities of Free Software in terms of property also feeds back into the concept of property: mapping this understanding back onto the tangible realm reanimates debate about the range of possible property relations more generally.

Section 3.2 – The nature of code – provides a basic account of software in terms of how its code is written, developed, commented upon and finally converted into executable programmes that can be run on a computer. Because of the inscrutability of binary code – readable only by machines – it follows that access to the source code – readable by humans – is a precondition for analysis, customisation and public scrutiny of software. Without this access to the source code, software represents a “black box” technology, the internal workings of which are hidden, and hence uncertain. Given that software is integral to many crucial systems, such as engines, brakes, flight control, ambulance dispatch, power stations etc., the creation of uncertainty constitutes not only a democratic issue, but a real danger.

Section 3.3 – A brief history of Free Software and its imaginary, scientific and cultural origins – begins with an examination of how the science of computing is embedded in the scientific commons which predates the rise of modern science. I provide a detailed account of the enclosure of the hacker commons that began in the 1970s, the consequent resistance to this privatisation which led to the establishment of the Free Software Foundation (FSF) in 1985, and the political disagreements that led to the formation of the Open Source Initiative (OSI). I argue that at the heart of Free Software lies a principled philosophy of freedom and community building, discarded as “ideology” by OSI. Stripped of FSF’s political origins, Open Source is hence best understood as an engineering methodology for a market-based economy.

Section 3.4 – The Free Software movement as a recursive public – discusses the main points of a recent study of Free Software and its cultural significance. Free Software is understood as a “recursive public” that is “vitally concerned” with the conditions of and possibilities for its own coming into being (Kelty 2008). While the Free Software movement remains a paradigmatic example of a recursive public, I argue that its recursive nature does not include the crucial recursive relation between the tangible and the intangible realm, as noted in Chapter 1. The Free Software commons remains ideologically and practically separated from the commons of the land and its material resources.

Section 3.5 – The GNU General Public License: copyright subversion and constitution – is an analysis of the software license that articulates the common values around which the Free Software community has emerged. The shared desire and need to cooperate on computer code has been condensed into “four freedoms” of Free Software. Using the framework developed in Chapter 2, I show how this license, the GPL, is an articulation of these common values in the form of sub-clauses to existing copyright, which ensures that once a piece of software code has been published under the GPL, it remains freely available for anyone to use for any purpose except enclosure. This self-articulated relational modality hence ensures reciprocity in perpetuity and uses copyright subversively to both constitute the software commons, and defend it against enclosure. The creation and maintenance of a commons within capitalist democracy necessitates an interfacing with its legal, political and economic dimensions. The example of Free Software shows that the articulation of property protocols on part of social movements and communities can make innovative use of trespassory protection provided by the overarching legal system through conventional property rights, in a way that undermines rather than strengthens the logic of capitalist private property. I also argue that the GPL acts as a constitution of the Free Software community.

Section 3.6 – Defending the GPL: a recursive public defends itself – reviews a small number of key legal proceedings which establish that the GPL is indeed sanctioned by copyright law. I show in this section how a self-defence mechanism has emerged spontaneously within the Free Software movement, complementing the protection that copyright affords. I maintain that the Free Software example provides an embryonic model for other voluntary associations to autonomously constitute and defend themselves against enclosure.

Finally, I conclude that solidarity between the real commons of the land and the virtual commons of cyberspace and a recognition of the interpenetration of the tangible and intangible realm, as well as an anti-capitalist vision of politics are necessary elements in a defence against the enclosure of cyberspace.

In the rest of the introduction I want to present some notes first on contemporary anti-capitalism, before turning to a social history of the perennial resistance to capitalism.