commons strategies

Now here is an improbable idea:  an activist hedge fund.  Out of Tampere, Finland, comes the Robin Hood Asset Management Coop, which legally speaking, is an investment cooperative.  It is designed to skim the cream off of frothy investments in the stock market to help support commoners.  As the website for the coop describe it:

We use financial technologies to democratize finance, expand financial inclusion and generate new economic space.  Robin Hood’s proposition is no different than it was 600 years ago in Sherwood:  arbitrage the routes of wealth and distribute the loot as shared resources.  Today we just use different methods to achieve the same:  we analyze big data, write algorithms, deploy web-based technologies and engineer financial instruments to create and distribute surplus profits for all.  Why?  Simply, we believe a more equitable world is a better one.  

The Robin Hood Coop currently has 808 members from some 15 countries, and manages about 651,000 euros in various stock market investments.  Started in June 2012, the coop has generated over 100,000 euros for its members and to its common pool, which is used to support commons projects.  Robin Hood reports that in its first year, it had “the third most profitable rate of return in the world of all the hedge funds.” 

Anyone can join the coop for a 30€ membership fee, which entitles members to invest a minimum of 30€.  Members can then choose eight different options for splitting any profits (after costs) among their own accounts, Robin Hood Projects and the general Robin Hood Fund.  Most members choose a simple 50-50 split of profits to themselves and Robin Hood Projects.  For the past two full years of its operations, the project has been profitable. (As of November 19, however, net asset value was down 6.38%.)  Robin Hood says that its operating costs are quite low compared to normal asset management services provided by banks.

The enterprise is driven by Robin Hood’s “dynamic data-mining algorithm,” which it calls “Parasite,” because it tracks actual transactions in US stock markets and mimics the best market actors.  The coop’s website explains:  “The parasite listens to the feed of the NYSE, watching for traders and what they trade. Then it competency ranks traders, identifying ones that are constantly making money on specific stocks. When it sees that a consensus is forming among such competent traders, it follows.”   Robin Hood appears to be out-performing many leading hedge funds and reaping impressive returns, and it provides a modest but welcome source of income for some commons projects.

Universitat de Oberta Catalunya -- Open University of Catalonia -- just published the following essay of mine as part of its "Open Thoughts" series.  The UOC blog explores the benefits and limitations of various forms of peer production: well worth a look!

From open access platforms to managed digital commons: that is one of the chief challenges that network-based peer production must meet if we are going to unleash the enormous value that distributed, autonomous production can create.

The open platform delusion
We are accustomed to regarding open platforms as synonymous with greater freedom and innovation. But as we have seen with the rise of Google, Facebook and other tech giants, open platforms that are dominated by large corporations are only “free” within the boundaries of market norms and the given business models. Yes, open platforms provide many valuable services at no (monetary) cost to users. But when some good or service is offered for at no cost, it really means that the user is the product. In this case, our personal data, attention, social attitudes lifestyle behavior, and even our digital identities, are the commodity that platform owners are seeking to “own.”

In this sense, many open platforms are not so benign. Many of them are techno-economic fortresses, bolstered by the structural dynamics of the “power law,” which enable dominant corporate players to monopolize and monetize a given sector of online activity. Market power based on such platforms can then be used to carry out surveillance of users’ lives; erect barriers to open interoperability and sharing, sometimes in anticompetitive ways; and quietly manipulate the content and “experience” that users may have on such platforms.

Such outcomes on “open platforms” should not be entirely surprising; they represent the familiar quest of capitalist markets to engineer the acquisition of exclusive assets and monetize them. The quarry in this case is our consciousness, creativity and culture. The more forward-looking segments of capital realize that “owning a platform” (with stipulated terms of participation) can be far more lucrative than owning exclusive intellectual property rights for content.

So for those of us who care about freedom in an elemental human and civic sense — beyond the narrow mercantilist “freedoms” offered by capitalist markets — the critical question is how to preserve certain inalienable human freedoms and shared cultural spaces. Can our free speech, freedom of association and freedom to interconnect with each other and innovate flourish if the dominant network venues must first satisfy the demands of investors, corporate boards and market metrics?

Until the very end, my dear friend and colleague Burns Weston was passionate, hard-driving and committed to changing the world.  That’s why I was stunned to learn that Burns passed away yesterday, a few weeks shy of his 82nd birthday.  When he failed to make a scheduled telephone call, friends checked his condo and found him dead.  Burns was a well-known international law and international human rights scholar at the University of Iowa College of Law.  He was also founder of its noted Center for Human Rights.

I met Burns about seven years ago when he was a professor for one semester a year at Vermont Law School.  He was writing a major legal treatise about climate change, and one element of the essay dealt with the commons.  A mutual friend, the polymath Roger G. Kennedy, introduced us, and the gravitational pull of Burns’ essay quickly drew me in. It was an irresistible disruption in my life that got me thinking a lot about environmental law and the commons.

Soon we were working together on a variety of projects:  a major scholarly book, chapters in anthologies, law review articles, grant proposals. In the course of it all, Burns exposed me to a great deal of human rights and international law, and he helped clarify their potential and limits for re-imagining international governance, environmental law and the actualization of human rights. For my part, I introduced Burns to the loose but growing network of international commoners and commons literature. He quickly realized that the commons is not just complementary to human rights; the two are long-lost partners with affirmative synergies. 

Our conversations became more serious and, with a bit of serendipitous funding, we embarked upon a grueling book project, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published in 2013 by Cambridge University Press.  It was a bold attempt to reimagine environmental law and policy through the lens of human rights and the commons.  We wanted to envision new ways to actualize human rights principles and commons practices at global and regional levels.  We wanted to think beyond the framework of the nation-state and international treaty organizations.  We wanted to think beyond the standard forms and institutions of law itself.

Burns attacked these questions with the enthusiasm of a first-year law student and the sagacity of a gray eminence.  He really wanted to come up with creative legal solutions, and he wasn’t afraid if they might require social and political struggle. Now that’s not a quality you find in your average law professor, let alone one in his seventies. Burns had a bold and questing temperament, and did not let himself be confined by the disciplinary blinders of law. That’s why, following the publication of Green Governance, Burns wanted to continue our explorations.  So we founded the Commons Law Project to see if we could propose an architecture of law and public policy to address climate change and other urgent ecological problems.

The coming together of commons-oriented projects seems to be intensifying.  Even as the Le Temps des Communes festival in dozens of Francophone cities convenes thousands of commoners, an organizing meeting for a Chicago Chamber of Commons in planned for Saturday, October 10. (You can register for the event here.)

This idea has been kicking around for a while – see this 2013 blog post  – but it seems that the folks in Chicago are serious about making it work. They want to foster deeper collaboration among the many groups focused on shared ownership, the collaborative economy, co-operatives and other mutual-benefit initiatives. The organizers say they want to “connect social entrepreneurs, L3C's, B-Corps and other enterprises focused on triple bottom line, sharing-economy approaches to commerce and community development.” People involved with economic transformation, environmental protection, community life and culture are also invited.

The day will start with a consensus workshop that will try to come up with a shared definition of the commons. This will be followed with discussions for startup plans for a Chicago Commons, which organizers hope will be the first of many Chambers of Commons across the nation and globe.

In May, Huffington Post writer Sally Duros wrote a piece about the envisioned Chamber of Commerce in which she quoted Michel Bauwens, founder of the P2P Foundation: 

"The old way is this. Here's a problem. We need resources to solve that problem. We create a hierarchy to direct resources at the problem," Bauwens says.

"Here's another way. There are enough people in the world with time, skills and energy who would be willing to work to solve that problem. The new solution is to create a commons and a platform that allows people to self-aggregate and collaborate to solve that problem."

Here's hoping that the organizing meeting is productive!

At the upcoming COP Summit in Paris (the UN Framework Convention on Climate Change), no one expects the world’s governments to make serious headway against global climate change. Neoliberal-obsessed governments are more concerned with propping up collapsing capitalist structures than in reducing carbon emissions (which have doubled over the past generation).  Corporations are more intent on preserving their market share and investors in preserving their net worth than in entertaining an environmentally benign economic paradigm shift.  We can be sure, following COP21, however, that world leaders will declare the event a success and let loose their own copious emissions of PR blather.

Let’s face it – we’re more or less on our own.  The impetus for change has to come from the bottom and the local. 

Which brings me to the inspirational work of POC21 – Proof of Concept 21 – which stands for “a proof of concept that the future we need can be built with our own hands.” For five weeks – August 15 to September 20 – more than 100 makers, designers, engineers, scientists and geeks converged on Château de Millemont, an ancient castle near Paris.  Their mission:  to work together in developing prototype machines that could radically reduce our dependence on carbon fuels.

The idea of POC21 is to invent inexpensive, modular household devices, farm tools, energy systems and other appropriate technologies that can be replicated cheaply, repaired easily and copied and shared by anyone. “Imagine a new breed of open source products available in your neighborhood,” POC organizers have announced. “This is our vision.”

Below are the final sections of the memo, "Reinventing Law for the Commons," whose three earlier parts were excerpted over the past several days.  The wiki of examples in Part II can be found on the Commons Transition website, and the final document can be downloaded here.

III. The Strategic Value of Developing Law for the Commons

Some Legal and Philosophical Reflections

Having surveyed a rather remarkable array of commons-based law initiatives, it is worth pausing for a moment to reflect on their significance for law, governance and politics.  These innovations in commons-based law challenge the tacit premise that the best, most natural system of governance and social order is the market/state, as dominated by transnational corporations and capital.  Law for the Commons attempts to open up new spaces through which commoners can have greater freedom and autonomy to devise governance forms of their own making, conBsistent with overarching principles of democracy and human rights.  It is perhaps risky to stipulate a specific set of principles that a Law for the Commons seeks to uphold, but there are clearly affinities among the diverse examples described above.  In different ways, commons projects are attempting to use law to achieve these purposes:

  • Provide structure for internal, participatory, bottom-up deliberation and governance (e.g., omni-commons, subsistence commons, Loomio, DemocracyOS);
  • Protect shared assets that are threatened by market enclosure (e.g., stakeholder trusts, blockchain ledger, community charters);
  • Provide a legal structure and identity to commons so that they can be legally cognizable to the state or international law (e.g., omni-commons, biocultural protocols for indigenous peoples, Terms of Service for peer production);
  • Provide commoners with access to state law to enforce their practices and norms (e.g., General Public License, Creative Commons licenses, community land trusts);
  • Secure state authority for commoning by modifying or extending state law through legal “work-arounds” (e.g., copyright-based licenses, stakeholder trusts, multistakeholder co-operatives, Bologna Regulation for urban commons);
  • Openly challenge recognized boundaries of law as a way to provoke a political debate or validate a particular commons (e.g., community ordinances; biocultural protocols; the commons-based foundation for Teatro Valle in Rome); and
  • Use digital technologies to create superior functional alternatives to state law (e.g., open value networks, smart contracts, the blockchain ledger).

The very idea of Law for the Commons constitutes a profound philosophical challenge to the liberal capitalist polity.  After all, many commons seek to enact different ideals of human flourishing and governance than the formal, universal and rational/utilitarian ones of the modern liberal state and neoliberal economics.  In this sense, Law for the Commons as it expands could help propel a paradigm shift because it asserts a different theory of value than that of conventional economics and the (formally) neutral apparatus of the liberal state.  Law for the Commons generally rejects capital accumulation and market exchange as the default engine of social and economic progress, and in this sense proposes a very different vision of human development.

So what might a commons-based economy actually look like in its broadest dimensions, and how might we achieve it?  My colleague Michel Bauwens of the P2P Foundation offers a remarkably thoughtful and detailed explanation in a just-released YouTube talk, produced by FutureSharp. It’s not really a video – just Michel’s voiceover and a simple schematic chart – but the 20-minute talk does a great job of sketching the big-picture strategies that must be pursued if we are going to invent a new type of post-capitalist economy.

Michel focuses on the importance of three specific realms that are crucial to this new vision – ecological sustainability, open knowledge and social solidarity. Each is critical as a field of action for overturning the existing logic of market capitalism. 

Fortunately, there are many promising developments in each of these realms. Many parts of the environmental movement seek to go beyond the standard “market-oriented solutions.” There is a growing body of open source-inspired projects for software code, information, design and physical production, which is now spawning new types of global sharing of information with distributed local production. And there are many advocates and initiatives for social justice and fairness in the economy, such as cooperatives and the solidarity economy movement.

The problem, says Bauwens, is that these movements do not generally connect with each other or coordinate internationally. He therefore sees the need for “meta-economic networks” to bridge these fields of action. So, for example, we need “open cooperativism” enterprises to bridge open knowledge systems and cooperatives, so that open network (or licensed) systems are not simply dominated by large corporations in the way that Google, Uber and Airbnb have done. We also need to develop an “open source circular economy” to bridge the worlds of eco-sustainability and open knowledge.  We will never address major environmental problems if the technological and product solutions are based on proprietary knowledge; open circulation of knowledge can change that.

Property Rights, Inequality and Commons

I recently spoke at a conference, “Property and Inequality in the 21st Century,” hosted by The Common Core of European Private Law, an annual gathering of legal scholars, mostly from Europe.  They had asked me how the commons might be a force for reducing inequality.  Below are my remarks, “The Commons as a Tool for Sharing the Wealth.”  The conference was held at the University of Göteborg, Sweden, on June 12-13, 2015.

Thank you for inviting me to speak today about the relationship between property law and inequality – a topic that receives far too little attention.  This should not be surprising.  Now that free-market ideology has become the default worldview and political consensus around the world, private property is seen as synonymous with freedom, economic growth and human progress. 

Oh yes, there is this nasty side issue known as inequality.  Malcontents like the Occupy movement and renegade economists like Thomas Pikketty have brought this problem to the fore after years of neglect.  Their success has been quite an achievement because for years the very existence of inequality has been portrayed as an accident, an aberration, a mysterious and shadowy guest at the grand banquet of human progress. 

I wish to argue that hunger, poverty, inadequate education and medical care, and assaults on human dignity and human rights, are not bugs in the system.  They are features.  Indeed, market ideologues often argue that such deprivations are a necessary incentive to human enterprise and economic growth; poverty is supposedly needed to spur people to escape through the work ethic and entrepreneurialism. 

Property rights lie at the heart of this dynamic because they are a vital tool for defining and patrolling the boundaries of private wealth, and for justifying the inevitably unequal outcomes.  So it’s important that we focus on the role of property rights in producing social inequality – without ignoring the many other forces, including social practice, culture and politics, that also play important roles.

I’d like to focus on the obsession in modern industrial societies to propertize everything, including life itself, and to use law as a tool to impose a social order of markets and private property as expansively as possible.  This cultural reflex is known as the enclosure of the commons.  The term describes how property owners assert sweeping rights – often with the active complicity of governments – as a way to appropriate collectively owned resources for private gain. 

We can see this dynamic in the international land grab now underway, the incessant attempts to privatize groundwater and municipal water systems, the grotesque expansion of copyright and patent law to privatize scientific knowledge and cultural works, and the use of the Earth’s atmosphere as a free waste dump by polluters.  The mania for privatizing the world has reached such an extreme stage that even intangible wealth as public spaces, microorganisms, genetically created mammals, artificially created nanomatter and human consciousness itself are claimed as objects of private property rights.  

Anarchist anthropologist David Graeber argues in his recent book, The Utopia of Rules, that bureaucracy is the standard mechanism in contemporary life for coercing people to comply with the top-down priorities of institutions, especially corporations and government.  Anyone concerned with the commons, therefore, must eventually address the realities of bureaucratic power and the feasible alternatives. Is there a more human, participatory alternative that can actually work?

The good news is that the City of Bologna, Italy, is pioneering a new paradigm of municipal governance that suggests, yes, there are some practical, bottom-up alternatives to bureaucracy. 

Two weeks ago, the city government celebrated the first anniversary of its Bologna Regulation on public collaboration for urban commons, a system that actively invites ordinary citizens and neighborhoods to invent their own urban commons, with the government’s active assistance.  I joined about 200 people from Bologna and other Italian cities on May 15 for a conference that celebrated the Regulation, which is the formal legal authority empowering citizens to take charge of problems in their city. 

How does the program work? 

It starts by regarding the city as a collaborative social ecosystem. Instead of seeing the city simply as an inventory of resources to be administered by politicians and bureaucratic experts, the Bologna Regulation sees the city’s residents as resourceful, imaginative agents in their own right.  Citizen initiative and collaboration are regarded as under-leveraged energies that – with suitable government assistance – can be recognized and given space to work.  Government is re-imagined as a hosting infrastructure for countless self-organized commons.

To date, the city and citizens have entered into more than 90 different “pacts of collaboration” – formal contracts between citizen groups and the Bolognese government that outline the scope of specific projects and everyone’s responsibilities. The projects fall into three general categories – living together (collaborative services), growing together (co-ventures) and working together (co-production).

In the 1990s, many communities in central Oregon were torn asunder by the “War of the Woods.” Environmentalists had brought lawsuits against the U.S. Forest Service for violating its own governing statutes. For decades, timber companies had been allowed to clear-cut public forests, re-seed with tree monocultures, and build ecologically harmful roads on mountain landscapes.

Environmentalists won their lawsuit in 1991 when a federal judge issued an injunction that in effect shut down timber operations in the Pacific Northwest of the US. While the endangered northern spotted owl was the focus of much of the debate, the health of the entire ecosystem was at risk, including the Pacific salmon, which swim upstream to spawn. 

There is often no substitute for litigation and government mandates, and the 1991 litigation was clearly needed.  But what is really interesting is the aftermath:  Rather than just designating the forest as a wilderness preserve off-limits to everyone, the Forest Service instigated a remarkable experiment in collaborative governance. 

Instead of relying on the standard regime of bureaucratic process driven by congressional politics, industry lobbying and divisive public posturing, the various stakeholders in the region formed a “watershed council” to manage the Siuslaw National Forest. Twenty years later, this process of open commoning has produced a significant restoration of the forest ecosystems, implicitly indicting the previous forest management regime driven by politics and the formal legal system.

This story is told in a wonderful thirty-minute film documentary, “Seeing the Forest,” produced by writer and filmmaker Alan Honick, with support from Forest Service Employees for Environmental Ethics.  Honick writes how the public lands in Oregon contained most of the remaining old growth forests outside of protected parks:

These were complex and ancient ecosystems, particularly on the west side of the Cascades, where the moisture from Pacific storms gave rise to rich and diverse temperate rainforests. Hundreds of species of animals and plants depended on this habitat to survive.

For 40 years, these forests were logged with the same industrial methods practiced on private land. Vast swaths were clearcut, then densely replanted with monocultures of the fastest growing trees. When they reached sufficient size, they were scheduled to be clearcut and replanted again, in an ongoing cycle considered sustainable by those who employed it.

The aftermath of the 1991 litigation could have been simmering hostility and litigation, which would likely flare up again.  It was based on the old, familiar narrative of “jobs vs. the environment,” a debate that government was supposed to mediate and resolve. 

In Oregon, however, it was decided to develop a “Northwest Forest Plan” that inaugurated a new space and shared narrative.  The Siuslaw Watershed Council invited anyone with an interest in the forest to attend its open, roundtable meetings, to discuss how to manage the forest and resolve or mitigate the competing interests of timber companies, environmentalists, recreational fishers, local communities, hikers, and others.  Outcomes were based on consensus agreement.

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