There is one notable aspect to the Volkswagen emission-cheating scandal that few commentators have mentioned:  It would not have happened if the software for the pollution-control equipment had been open source. 

Volkswagen knew it could defraud consumers and deceive regulators precisely because its software was closed, proprietary and legally protected from outside scrutiny. Hardly anyone could readily check to see if the software was performing as claimed.    

Sure, dogged investigators could laboriously compare actual car emissions to emissions in artificial regulatory tests. That’s essentially what broke open the Volkswagen scandal. But that is an expensive and problematic way to identify cheaters. 

The larger question is why should a piece of software that has enormous public health and environmental implications be utterly impenetrable in the first place?  A locked box invites lawless, unaccountable and sloppy corporate behavior. It assures that hardly anyone can see what’s going on. Volkswagen exploited the cover of darkness for all that it could.

Peter Barnes, an old colleague of mine who writes about the commons from an economic perspective, recently published an essay about “common wealth trusts” as a structure to be used in transitioning to a new economy.  The essay, on the Great Transition Initiative website, recapitulates and extends an idea that Barnes has written about in the past – how to use stakeholder trusts to manage common assets (minerals, forests, electromagnetic spectrum, groundwater, etc.) while providing dividends to all citizens who are also co-owners of those assets. 

Barnes argues that common wealth trusts “address the two greatest flaws in contemporary capitalism—its relentless destruction of nature and widening of inequality—while still keeping the benefits that markets provide.”  Trusts can work because they can provide clear (collective) property rights and formal management systems around resources that are invisible to markets and in many instances threatened with privatization.  He writes:

…..Markets currently do not acknowledge such wealth or recognize its value, much less its common ownership. Because of this enormous market failure, private businesses take, use, or pollute common wealth without limit, generally without paying its right­ful owners for the pri­vi­lege. By so doing, private businesses and their narrow group of owners capture much of the value added by common wealth, exacerbating inequality. If businesses had to pay for the use of common wealth, these things would not happen, or at least would happen much less. What are now unpriced exter­nal­i­ties or straight-out thefts would become costs for businesses that could generate income for everyone.

“Organizing common wealth so that markets respect its co-inheritors and co-beneficiaries requires the creation of common wealth trusts, legally accountable to future generations,” Barnes argues. “These trusts would have authority to limit usage of threatened ecosystems, charge for the use of public resources, and pay per capita dividends. Designing and creating a suite of such trusts would counterbalance profit-seeking activity, slow the destruction of nature, and reduce inequality.”

The relationship between law and the commons is very much on my mind these days.  I recently posted a four-part serialization of my strategy memo, "Reinventing Law for the Commons."  The following public talk, which I gave at the Heinrich Boell Foundation in Berlin on September 8, is a kind of companion piece.  The theme: this year's celebration of the 800th anniversary of Magna Carta and its significance for commoners today.

A video version of my talk can be seen here -- along with a talk on P2P developments by my colleague Michel Bauwens, and general discussion with the audience moderated by Silke Helfrich.

Thank you for inviting me to speak tonight about the 800th anniversary of the Magna Carta and the significance of law for the commons.  It’s pretty amazing that anyone is still celebrating something that happened eight centuries ago!   Besides our memory of this event, I think it is so interesting what we have chosen to remember about this history, and what we have forgotten.

This anniversary is essentially about the signing of peace treaty on the fields of Runnymede, England, in 1215.  The treaty settled a bloody civil war between the much-despised King John and his rebellious barons eight centuries ago.  What was intended as an armistice was soon regarded as a larger canonical statement about the proper structure of governance.  Amidst a lot of archaic language about medieval ways of life, Magna Carta is now seen as a landmark statement about the limited powers of the sovereign, and the rights and liberties of ordinary people.

The King’s acceptance of Magna Carta after a long civil war seems unbelievably distant and almost forgettable.  How could it have anything to do with us moderns?  I think its durability and resonance have to do with our wariness about concentrated power, especially of the sovereign.  We like to remind ourselves that the authority of the sovereign is restrained by the rule of law, and that this represents a new and civilizing moment in human history.  We love to identify with the underdog and declare that even kings must respect something transcendent and universal called “law,” which is said to protect individual rights and liberties. 

In this spirit, the American Bar Association celebrated Magna Carta in 1957 by erecting a granite memorial at Runnymede bearing the words “Freedom Under Law.”  On grand public occasions – especially this year – judges, politicians, law scholars and distinguished gray eminences like to congregate and declare how constitutional government and representative democracy are continuing to uphold the principles of Magna Carta.  More about that in a minute.

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.

Today's post is the third in a four-part series derived from my strategy memo, "Reinventing Law for the Commons."  This excerpt continues with Part II, "Legal Innovations in Beating the Bounds," with "clusters" #5 through #9. The collection of entries here are now posted on a Commons for the Law wiki hosted by the Commons Transition website.

5.  Co-operative Law

There are a number of legal and organizational innovations transforming co-operatives these days, making them moreoriented to commoning and the common good than just marketplace success. However, these innovations are geographically dispersed and not necessarily widely known, even within the co-operative movement.  One of the most notable new organizational forms is the multistakeholder co-operative (or “social and solidarity cooperative”), which has been rapidly proliferating in recent years.  It got its start in Italy in 1963 when families in Italy joined forces with paid care workers to develop co-operatives to provide social care, healthcare and educational services. This new paradigm collectivizes and centralizes basic overhead services (administration, personnel, accounting, etc.) and in this way empowers smaller social economy ventures (similar to “omni-commons,” see section #8 below). 

In a sense, multistakeholder co-ops regularize governance for co-stewardship of commons spaces and moves away from rigid bureaucratic methods that increasingly don’t work.[1]  Multistakeholder co-ops now employ more than 360,000 in paid jobs, including the disabled, the formerly imprisoned and marginalized people, and more than 40,000 volunteers.  Social co-operatives have spread to all regions of Italy and today number more than 14,000, making it a significant sector of the Italian economy that is neither market- nor state-based.  Today there are multi-stakeholder co-operative movements in Quebec in Canada and in a wide number of countries in Europe including France, Spain, Poland, Hungary, Finland and Greece[2].

Below, a continuation of yesterday's post from the strategy memo, "Reinventing Law for the Commons," Part II of the four-part piece.

II.  Legal Innovations in Beating the Bounds:  Nine Promising Fields of Action 

Part II surveys the enormous amount of legal innovation going on in various commons-related fields of action.  The point of this section is to identify specific initiatives that are trying to transform the legal paradigm or carve out new “protected zones” of enforceable rights within existing legal frameworks.  I have identified nine major “clusters” of interesting experimentation and ferment:

1.  Indigenous Commons   

2.  Subsistence Commons in the Global South       

3.  Digital Commons       

4.  Stakeholder Trusts

5.  Co-operative Law 

6.  Urban Commons  

7.  Localism            

8.  New Organizational Forms     

9.  Re-imagining State Policy to Empower Commons   

Today's post focuses on the first four "clusters"; tomorrow's deals with #5 through #9.  And the final day will deal with Part III:  The Strategic Value of Developing Law for the Commons, and Part IV:  Next Steps.

The list of clusters and examples in Part II is not comprehensive.  It is merely a first attempt to assemble the fragments of commons-based legal innovation into a new mosaic that makes key, unifying themes more visible.  (I invite readers of this memo to inform me of any worthy additions by contacting me at david/at/  Some examples may belong in two or more clusters, which I’ve tried to indicate with cross-references.  In Part III, I will reflect on the political and philosophical implications of the examples of Part II, followed by a discussion in Part IV of practical steps that might be taken to consolidate and extend Law for the Commons as a coherent body of legal activism.

Reinventing Law for the Commons, Part I

One of the most devastating and recurring problems that virtually every commons faces is market enclosure – the privatization and marketization of shared resources by businesses, investors and speculators, often in collusion with government. What's really remarkable is that legislatures and courts so often declare that enclosures are legal because they supposedly contribute to economic growth, progress and freedom, etc.

All of this got me to thinking:  What would it look like if commoners could invent their own types of law, consistent with state law, to reliably protect their commons?  What if there were a more rigorous Law for the Commons?

There are in fact many examples from history.  The most notable ones may be the centuries-old public trust doctrine for water and other natural resources, and the Charter of the Forest, the forgotten part of Magna Carta that guarantees commoners’ rights. 

In our time, the General Public License for software and the Creative Commons licenses for content are masterstrokes of legal ingenuity that protect shared wealth.  Commoners can be confident that no one can legally appropriate their pooled resources, whether they are code, writing, images or music.

As I looked into this topic further, I discovered that there is in fact a wealth of legal innovation now underway in many sectors of the commons world.  There are clever legal hacks to protect indigenous peoples’ agroecological knowledge and traditions.  There are new variations on co-operative law and new legal initiatives to protect local communities’ self-determination.  There are stakeholder trusts and new organizational forms for commoning.

With support from the Heinrich Boell Foundation, I researched and wrote a lengthy four-part strategy memorandum outlining more than sixty examples of legal innovation for the commons.  The memo also includes a rationale for launching a new field of inquiry and activism, Law for the Commons.

One of the great economists of the twentieth century had the misfortune of publishing his magnum opus, The Great Transformation, in 1944, months before the inauguration of a new era of postwar economic growth and consumer culture. Few people in the 1940s or 1950s wanted to hear piercing criticisms of “free markets,” let alone consider the devastating impacts that markets tend to have on social solidarity and the foundational institutions of civil society. And so for decades Polanyi remained something of a curiosity, not least because he was an unconventional academic with a keen interest in the historical and anthropological dimensions of economics. 

As the neoliberal revolution instigated by Reagan and Thatcher in the 1980 has spread, however, Polanyi has been rediscovered.  His great book – now republished with a foreword by Joseph Stiglitz – has attracted a new generation of readers. 

But how to make sense of Polanyi’s work with all that has happened in the past 70 years?  Why does he still speak so eloquently to our contemporary problems? For answers, we can be grateful that we have The Power of Market Fundamentalism:  Karl Polanyi’s Critique, written by Fred Block and Margaret R. Somers, and published last year. The book is a first-rate reinterpretation of Polanyi’s work, giving it a rich context and commentary.  Polanyi focused on the deep fallacies of economistic thinking and its failures to understand society and people as they really are. What could be more timely?

The cult of free market fundamentalism has become so normative in our times, and economics as a discipline so hidebound and insular, that reading Polanyi today is akin to walking into a stiff gust of fresh air.  We can suddenly see clear, sweeping vistas of social reality.  Instead of the mandarin, quantitative and faux-scientific presumptions of standard economics – an orthodoxy of complex illusions about “autonomous” markets – Polanyi explains how markets are in fact embedded in a complex web of social, cultural and historical realities.

If the culture industries wonder why people have so little respect for copyright law these days, they need look no further than the Warner Music Group’s claimed copyright of the song “Happy Birthday.”  It’s a grotesque mockery of the avowed principles of copyright law and a scam on the public that has persisted for decades.  But with a revenue stream of $5,000 a day, or $2 million a year, Warner Music is not about to stop charging people for the right to perform “its” song.

Thanks to a courageous filmmaker, however, this travesty may soon come to an end.  Jennifer Nelson had been making a documentary about the “Happy Birthday” song when Warner said it would cost her $1,500 to use it in her film.  Nelson filed a lawsuit two years ago, a remarkable challenge in itself to the usual legal bullying by copyright owners. After all, who has the money or stomach to battle large corporations with well-paid lawyers or to lobby Members of Congress whose minds have already been made up by campaign contributions from music, film and publishing companies? Most TV shows simply forbid their hosts and performers from singing "Happy Birthday," and various restaurants have come up with their own alternative songs, lest they incur licensing fees.

It now appears that Nelson’s legal team has uncovered hard evidence that the copyright to "Happy Birthday" has been invalid for years.  In a storage facility used by the University of Pittsburgh, lawyers found a 1922 songbook that contained the lyrics of “Happy Birthday” in a song entitled “Good Morning and Birthday Song.” This is significant because there was no copyright notice on the song in the book – a requirement for copyright protection under the law at the time – and anything published before 1923 has entered the public domain and is free for anyone to use.

The Commons and EU Knowledge Policies

One of the great advantages of a commons analysis is its ability to deconstruct the prevailing myths of “intellectual property” as a wholly private “product” – and then to reconstruct it as knowledge and culture that lives and breathes only in a social context, among real people.  This opens up a new conversation about if and how property rights in knowledge should be granted in the first place.  It also renders any ownership claims about knowledge under copyrights and patents far more complicated -- and requires a fair consideration of how commons might actually be more productive substitutes or complements to traditional intellectual property rights.

After all, it is taxpayers who subsidize much of the R&D that goes into most new drugs, which are then claimed as proprietary and sold at exorbitant prices.  Musicians don’t create their songs out of thin air, but in a cultural context that first allows them to freely use inherited music and words from the public domain -- which future musicians must also have access to. Science can only advance by being able to build on the findings of earlier generations.  And so on.

The great virtue of a new report recently released by the Berlin-based Commons Network is its application of a commons lens to a wide range of European policies dealing with health, the environment, science, culture, and the Internet.  “The EU and the Commons:  A Commons Approach to European Knowledge Policy,” by Sophie Bloemen and David Hammerstein, takes on the EU’s rigid and highly traditional policy defense of intellectual property rights.  Bloemen and Hammerstein are Coordinators of the Berlin-based Commons Network, which published the report along with the Heinrich Böll Foundation.  (I played a role in its editing.)  The 39-page report can be downloaded here -- and an Executive Summary can be read here

“The EU and the Commons” describes how treating many types of knowledge as commons could not only promote greater access to knowledge and social justice, it could help European economies become more competitive. If EU policymakers could begin to recognize the generative capacities of knowledge commons, drug prices could be reduced and climate-friendly “green technologies” could be shared with other countries. “Net neutrality” could assure that startups with new ideas would not be stifled by giant companies, but could emerge. And scientific journals, instead of being locked behind paywalls and high subscription fees, could be made accessible to anyone.

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