commons strategies

In the quest to imagine and build a new “sharing economy,” one factor that is often overlooked is law.  What shall be the role of formal law in a world of social enterprises, shared workspaces, cohousing, car-sharing groups, tool-lending libraries, local currencies and crowdfunding?  Who has legal rights in these various contexts, and what do they look like?  Who holds the legal liabilities?

These questions are sometimes ignored by commoners who consider the law a retrograde, irrelevant force to be avoided.  But even among those who acknowledge the inescapability of conventional law, the contours of legal rights and liabilities are not always self-evident because the law tends to be silent about commoning, or construes such activities in archaic legal categories. The law as it now stands presumes that we are either businesses or consumers, employers or employees, or landlords and tenants.  Production and consumption, and investment and usage, are "naturally" considered separate activities pursued by different people. 

But nowadays countless activities in the sharing economy are blurring old categories of law. There may be many parties involved in managing a a workspace, childcare facility or online information, or perhaps many people have ongoing relationships and responsibilities and entitlements that are collective and evolving. Should the strict letter of the (archaic) law necessarily trump our informal, self-negotiated social rules? 

Janelle Orsi, director of the Oakland-based Sustainable Economies Law Center, has tackled these and many other such questions in a terrific book, Practicing Law in the Sharing Economy:  Helping People Build Cooperatives, Social Enterprise and Local Sustainable Economies (ABA Publishing).  The book covers a monumental array of legal topics that are relevant to the sharing economy.  Most of the chapters deal with how to craft agreements that validate special forms of sharing – for example, how to form organizations, how to exchange with each other and how to invest in each other’s work.  There are also chapters for shared working arrangements, mutual provisioning, sharing rights to land, sharing rights to intellectual property, and managing collective risks.  

Last week, at the Edge Funders Alliance conference in Berkeley, California, I learned how participatory budgeting is starting to get some real traction here in the US. Participatory budgeting, or PB to aficionados, is a process by which ordinary people determine how to spend municipal funds.  Ginny Browne of the Participatory Budgeting Project, which is based in Brooklyn, gave a terrific overview of the history and current state of this rare form of citizen engagement in government. The basic point is to let people have a direct say about the services that most affect them.

Participatory budgeting got its start in 1969 in Porto Alegre, Brazil, a city of 1.5 million residents.  Launched as an effort to bypass political corruption, PB is now used in that city to allocate 20 percent of the budget, or $200 million.  The process engages some 50,000 citizens in Porto Alegre, and has resulted in a doubling of sanitation services and more school buses for underserved areas.  (For more on PB in Porto Alegre, see the excellent book chapter by Hilary Wainwright in her 2009 book Reclaim the State.) 

Participatory budgeting first came to the US in 2009 when a Chicago city councilman attending the U.S. Social Forum decided to try it out in that city’s 29th ward.  In 2011 four New York City council members introduced PB in their districts.  About 1.5 million people participated in deciding how to spend $14 million for infrastructure projects. 

A year later, the city of Vallejo, California, introduced PB for $3.2 million in city programs and services. The idea had real appeal because the city had just gone through bankruptcy proceedings and citizen trust in government was low. A twenty-person steering committee for PB was created.  After brainstorming ideas and developing project proposals, 4,000 citizens chose which of twelve different projects to fund.

The past thirty years have seen a massive patent grab to control agricultural seeds and the crops that are grown, not just in the US but around the world.  In the name of progress and greater yields, seed companies introduced proprietary GMO and hybrid seeds, slowly squeezing out seeds that are more common and shareable. This is exactly what Microsoft did in software, using Windows to marginalize competing software systems, and this is what bottling companies have done to water, trying to supplant tap water with heavily marketed branded water.

Some folks at the University of Wisconsin have launched a new effort to fight this trend in the seed market through what they call the Open Source Seed Initiative. The project last week released 29 new varieties of broccoli, celery, kale, quinoa and other vegetables and grains, all of them licensed under the equivalent of software’s General Public License (GPL), which is what has allowed GNU/Linux to remain in the commons. 

The license, known as the Open Source Seed Pledge, lets anyone use the open source seeds for whatever purpose they want – provided that any subsequent seeds produced are also made available on the same basis.  The idea is to bypass the built-in bias of proprietary control in the patent system, and assure that the new seeds will be available for anyone to grow, breed and share in perpetuity, without the fear of someone imposing intellectual property restrictions on later uses of the seeds.

The University of Wisconsin-Madison news office quoted horticulture professor and plant breeder Irwin Goldman, one of the authors of the pledge, as saying:  “These vegetables are part of our common cultural heritage, and our goal is to make sure these seeds remain in the public domain for people to use in the future.”  Last week Goldman released two carrot varieties he developed, named Sovereign and Oranje, at a public ceremony outside of the university’s microbial sciences building.

For people who care about socially engaged, commons-minded tech innovation, there are few institutions in the world as bold and courageous as Medialab Prado, in Madrid.  For the past ten years it has been a technology lab, an interdisciplinary forum, a space that welcomes public participation, a hub for citizen activism, and a host of provocative workshops and conferences.  And yes, the Medialab Prado has also been deeply engaged with the commons paradigm as an important way of shaping a better, more socially constructive future. 

Now, after a decade of fantastic work as a pioneering social/technological laboratory, the Madrid city council is threatening to let a giant telecom corporation, Telefónica, take over its new building.  The municipal government – apparently clueless about the international stature and significance of Medialab – is in talks to let Telefónica use the brand new building that MLP moved into less than a year ago. Telefónica wants to open its own startup incubator there. The move  would cast Medialab into limbo, without any assurance of appropriate space in a suitable location or adequate funds.  

Many of us who participate in the international tech, P2P, commons or activist worlds are appalled at this recent turn of events.  Doesn’t the Madrid political establishment recognize the immense value that Medialab Prado has for the city and Spain (and the rest of the world)? 

Doesn’t it realize that Medialab is a magnet for the most exciting thinkers, technologists and social activists – a place that elevates Madrid’s reputation and Spain’s leadership in cultural and tech circles?  After citizen uprisings in so many countries around the world, does the Madrid political establishment not appreciate the need to explore new models of social outreach and public engagement, as Medilab Prado does?

Currently, less than 3% of the food that Americans eat is grown within 100 to 200 miles of where they live.  And many people in poorer neighborhoods simply do not have ready access to affordable local produce.

A fascinating new project, the Food Commons, aspires to radically change this reality.  It seeks to reinvent the entire “value-chain” of food production and distribution through a series of regional experiments to invent local food economies as commons. 

By owning many elements of a local food system infrastructure – farms, distribution, retail and more – but operating them as a trust governed by stakeholders, the Food Commons believes it can be economically practical to build a new type of food system that is labor-friendly, ecologically responsible, hospitable to a variety of small enterprises, and able to grow high-quality food for local consumption.

Food Commons explains its orientation to the world by quoting economist Herman Daly:

“If economics is reconceived in the service of community, it will begin with a concern for agriculture and specifically for the production of food.  This is because a healthy community will be a relatively self-sufficient one.  A community’s complete dependency on outsiders for its mere survival weakens it….The most fundamental requirement for survival is food.  Hence, how and where food is grown is foundational to an economics for community.”

Food Commons is a nonprofit project that was officially begun in 2010 by Larry Yee and James Cochran.  Yee is a former academic with the University of California Cooperative Extension who has been involved in sustainable agriculture for years.  Cochran is the founder and president of Swanton Berry Farms, a mid-scale organic farming enterprise near Santa Cruz, California.

Michel Bauwens, Founder of the P2P Foundation, has recorded four short videos describing the FLOK Society’s pioneering research project in Ecuador.  FLOK stands for “Free, Libre, Open Knowledge,” and the FLOK Society is a government-sponsored project to imagine how Ecuador might make a strategic transition to a workable post-capitalist knowledge economy. As Research Director of the project, Michel and his team are exploring the practical challenges of making commons-based peer production a widespread, feasible reality as a matter of national policy and law. 

The four videos – each four to six minutes in length – are a model of succinct clarity.  Here is a short summary of each one, which I hope will entice you to watch all of them (links are in the titles below):

Part I: The FLOK Society

Bauwens explains the significant of the FLOK Society project as “the first time in the history of mankind that a nation-state has asked for a transition proposal to a P2P economy.” He asks us to “imagine that for every human activity, there is a commons of knowledge that every citizen, business and public official can use.”  This regime of open, shareable knowledge would move away from the idea of privatized knowledge accessible only to those with the money to pay for copyrighted and patented knowledge.  The system could be adapted for education, science, medical research and civic life, among other areas. 

The FLOK Society project is actively looking for what it calls the “feeding mechanisms” to enable and empower commons-based peer production.  For open education, for example, open textbooks and open educational resources would help people enter into this alternative regime.  However, there are both material and immaterial conditions that must be addressed as well. 

One material condition is proprietary hardware, for example.  If open systems could replace the existing lock-down of proprietary systems, all users could spend one-eighth of what they are currently paying, on average.  Moreover, eight times more students could participate in creating and sharing, said Bauwens, which itself would yield enormous gains.  As for "immaterial conditions" that need to change, innovations like “open certification” are needed to recognize the skills of those who learn outside of traditional institutions, as in hacker communities.

Several years ago some software programmers in Berlin came up with a new software platform to let diverse groups of people self-organize themselves to make democratic decisions online.  The program, LiquidFeedback, gives everyone a chance to participate without the need for physical assemblies or in-person voting. 

The program was first used by the German Pirate Party, but it has been also been used by citizen associations, cooperatives and even corporations to elicit the collective sentiment of groups of people, including for binding votes. The idea behind the program is to avoid the classic problems of representative democracy and hierarchies.  As we all know, elected leaders are often happy to ignore or misrepresent the will of the people if it helps them stay in power.  LiquidFeedback was intended as something of an antidote.

Now, the programmers behind LiquidFeedback, the Public Software Group of Berlin, have published a book, The Principles of LiquidFeedback, describing the philosophical, political and operational details of the software system. The authors – Jan Behrens, Axel Kistner, Andreas Nitsche and Bjorn Swierczek – bill their book as “a must-read for anybody planning to make online decisions or to build online decision platforms and is also interesting for anybody interested in the future of democracy in the digital age.”

At a time when elections, legislatures and other democratic processes do a poor job at representing the will of the people, LiquidFeedback is a welcome experiment in demonstrating a better way. It is not seen as a substitute for representative democracy, but more as a complement to it.  I blogged about the program in 2012 and concluded that it “clearly shows the potential for re-imagining more open, legitimate and responsive forms of governance.” 

LiquidFeedback empowers any accredited member of a group to propose a new initiative; make suggestions about it; create alternatives to the proposed initiative; and vote on a final proposal.  Discussion generally takes place on other platforms, however, outside of LiquidFeedback. But the authors warn that "in the real world it is not possible to implement a secret electronic voting system whose functionality can be verified by the voters." Liquid Feedback uses open ballots.

So why should investors always have the upper hand in “development” plans when the resource at stake is a beloved building or public space? Why should the divine right of capital necessarily prevail? 

How refreshing to learn that England has created a special legal process for preventing market enclosures of community pubs.  There is even a Community Pubs Minister, whose duty it is to recognize the value of pubs to communities and to help safeguard their futures.  So far, some 100 pubs have been formally listed as “assets of community value.”

I know, I know – what would Margaret Thatcher say?  "Damned government interventions in the free market!"  Fortunately, that kind of market fundamentalism has abated for a bit, enough that the Community Pubs Minister -- Brandon Lewis, a Conservative Party member of Parliament! -- now extols “the importance of the local pub as part of our economic, social and cultural past, present and future.”  He adds:  “We have known for hundreds of years just how valuable our locals are.  Not just as a place to grab a pint but also to the economies and communities they serve and that is why we are doing everything we can to support and safeguard community pubs from closure.”

For a while, Couchsurfing had an amazing run, connecting travelers with hosts and helping strangers become friends.  Until around 2011, it was a way-crazy gift-economy for hospitality on a global scale, with more than five million members (now seven million) in 90,000+ cities.  Who would have thought that a loose non-market community could ever get so big while retaining its ideals and ethical stance?

Alas, Couchsurfing’s popularity created some new problems of its own, and the site was plagued by some dubious management decisions, technical challenges, and the lack of funds.  At Medium.com, Roy Marvelous explains what happened in 2011:

Basically, Couchsurfing owed tax money (its tax-exempt status as a non-profit was not approved), it needed far more investment in servers and it needed to hire more engineers to reprogram the site to make it scalable. And apparently, the only viable solution was to become a for-profit, sell a portion to venture capitalists and have it run by professionals.

The problems were real but I’ll be blunt: Couchsurfing was stolen from its members. This was code, content & community built by the members, for the members. None of those volunteers, working for free under the false pretense that Couchsurfing would stay non-profit, received any equity in this new corporation. Why couldn’t there have been another way? I would have donated money. I would have been happy with advertising. They could have moved Couchsurfing HQ to Berlin or Chang Mai or Santiago rather than be based in San Francisco, one of the most expensive cities in the world.

The moment Couchsurfing was sold, it stopped becoming a community and started becoming a service, not unlike Yelp or Meetup or Facebook. And herein lies the problem: Couchsurfing now has an identity-crisis.

After the Internal Revenue Service refused to grant Couchsurfing tax-exempt nonprofit status – formally known as “501(c)(3)” status under the tax code – Couchsurfing decided to become a “Certified B Company,” or “for-benefit” corporation.  As Marvelous points out, this was apparently the only way to move forward.  (But is this true?)  By 2012, Couchsurfing had raised more than $22 million in venture capital money and it was on its way to becoming another profit-oriented corporation in the “sharing economy.”  (The so-called sharing economy, it should be noted, is less about sharing than about micro-rentals of things that previously could not be marketized.)

Max Haiven, a writer, teacher and organizer in Halifax, Canada, recently posted an essay on the website of ROAR magazine that is excerpted from his forthcoming book, Crisis of Imagination, Crises of Power:  Capitalism, Creativity and the Commons (Zed Books).  It’s a fascinating piece that dissects the formidable capacity of global capitalist systems to control our sense of the possible. 

It seems that Haiven has been thinking quite deeply about how the “financialization of culture”  for some time.  He writes:  “…the system is more invested than ever in preoccupying and enclosing our sense of self and of the future; our hopes, dreams and aspirations; and our capacity to imagine.”  A sense of futility preemptively neutralizes any threats to the system without the need to use visible force.  Modest incremental improvements within the existing system are the best that anyone can aspire to. 

“From this perspective,” writes Haiven, an assistant professor at the Nova Scotia College or Art and Design, “radical social movements that seek to transform society can only be interpreted as vainglorious or pathologically ideological. It is also this fatalism that enables radicalisms to be co-opted and internalized within the system: if the system cannot actually be overcome, the only horizon of dissent is an inadvertent improvement of the system itself.  Radical demands for the re-imagining of value are tamed and made to offer piecemeal solutions to capitalist crises; attempts to live out anti-capitalist values are transmuted into commercialized subcultures; anti-racist or feminist movements are co-opted into opportunities for a select few to enter into the middle class.”

So what to do?  Haiven brilliantly explains how commoning can be effectively “jam” the usual cooptation strategies deployed by the Market/State: