enclosures

As more and more computing moves off our PCs and into “the Cloud,” Internet users are gaining access to a wealth of new software-based services that can exploit vast computing capacity and memory storage.  That’s wonderful.  But what about our freedom to create and share things as we wish, free from corporate or government surveillance or over-reaching copyright enforcement?  The real danger of the Cloud is its potential to limit how we may create and share what we want, on our terms.

There are already signs that large corporations like Google, Facebook, Twitter and all the rest will quietly warp the design architecture of the Internet to serve their business interests first.  A terrific overview of the troubling issues raised by the Cloud can be found in the essay, “The Cloud:  Boundless Digital Potential or Enclosure 3.0,” by David Lametti, a law professor at McGill University, and published by the Virginia Journal of Law & Technology.  An earlier version is available at the SSRN website.   

Lametti states his thesis simply:  “I argue that the Cloud, unless monitored and possibly directed, has the potential to go beyond undermining copyright and the public domain – Enclosure 2.0 – and to go beyond weakening privacy. This round, which I call “Enclosure 3.0”, has the potential to disempower Internet users and conversely empower a very small group of gatekeepers. Put bluntly, it has the potential to relegate Internet users to the status of digital sheep.”

I’m pleased to report that the English edition of a new anthology of essays, The Wealth of the Commons:  A World Beyond Market and State, is now available!  I’ve been working on editing the book with my German colleague Silke Helfrich for nearly a year and a half, so it’s wonderfully satisfying to see the book in its final, printed form. 

Let me immodestly state:  Never before have so many different international voices about the commons been brought together in one volume.  The Wealth of the Commons consists of 73 essays by a diverse roster of international activists, academics and project leaders. It consists of descriptions of specific commons innovations, essays on the theory and economics of commons, accounts of different types of enclosures around the world, and much else.

There are accounts of fishing commons off the coast of Chile; fruit sharing from abandoned orchards in Germany; and an overview of subsistence forestry in Nepal.  There are many accounts of market enclosures, from dam-building in India to mining in South America to the international land grab now underway in Africa and Asia.  The book also features a series of essays on knowledge commons and more than a dozen essays focused on commons-friendly policy innovations.

The soft-bound, 442-page book is published by Levellers Press, a small, innovative publisher here in Massachusetts that is also a worker coop and itself ardently committed to the commons.  I love the fact that a book on the commons is being published by a publisher that truly honors the Levellers, one of the great movements of commoners in the seventeenth century.  The book can be bought from the Levellers website for US$22.50 plus shipping and handling.  More about the book can be found on its website, www.wealthofthecommons.org. 

The Texas Supreme Court has dramatically rolled back the scope of the public trust doctrine as it applies to Texas beaches in a 5-3 ruling by the all-Republican court. This means that the public’s right to enjoy shorefront on the Gulf of Mexico will be sharply curtailed in the years ahead -- a major victory for private property fundamentalists.  Judicial activism, anyone?

The court’s decision focused on the public's access rights to beaches when hurricanes or storms have eroded a public strip of beach.  Should the public be prohibited from using the "new beach" that might now be situated on privately owned land?  Or should there be a “rolling easement” that recognizes public access no matter how natural forces remake the actual shoreline? 

For decades, the Texas state public trust doctrine gave a rolling easement that assured public access to beaches.  That access right did not inhere in a particular strip of land, but in a general right of access.  Now, the court ruled, reversing decades of established law, if a storm washes away the public beach, “the land encumbered by the easement is lost to the public trust, along with the easement attached to that land.”  As reported by the Texas Observer, “the court dismissed the 180-year-old custom of public enjoyment of Texas beaches as ‘unsupported by historic jurisprudence’ and ‘a limitation on private property rights’.”

State attorney general Greg Abbott noted:  “With the stroke of a pen, a divided court has effectively eliminated the public's rights on the dry beach….The majority could only cite—nothing.  Not a single case, rule, precedent, principle, empirical study, scientific review, or anything else.”  Even the Galveston Chamber of Commerce joined the attorney general in seeking to uphold the historic understanding of the public trust doctrine.

It was a pleasure to see Arnold Relman and Marcia Angell receive such well-deserved visibility in yesterday’s New York Times for their campaigns against the “commercial exploitation of medicine.” Drs. Relman and Angell are both former editors of The New England Journal of Medicine, together and separately, from 1977 to 2000.  They are also husband and wife since 2009.  He’s 88 and retired, and she’s 72 and still teaches at Harvard Medical School. 

Relman and Angell built the NEJM into a formidable editorial platform during their tenures as editors.  Much of this came from the quality of the research that they published.  But it also derived from their willingness to challenge Big Pharma’s insidious attempt to corrupt the independence of doctors, medical journals, medical education and patients.  Here were two highly esteemed physician-editors using the sheer credibility of research and their journal’s reputation to face down the multi-billion pharmaceutical industry, which has unleashed a veritable hydra of wily, unethical schemes to boost profits. 

Among them:  undisclosed industry payments to researchers to produce studies that make a new drug look good; undisclosed industry payments to leading physicians to teach courses that have the effect of promoting certain drugs and medical devices; undisclosed industry junkets and gifts to physicians to try to encourage more prescriptions of certain medications.  And so on.

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One of the great achievements of the Occupy Wall Street movement, after only six weeks of protest, has been its unmasking of some deeply entrenched illusions about our rights of free speech, access to public spaces and the meaning of democracy. OWS has done this not with words alone (truth-telling tends to be consigned to the fringes of respectable opinion), but through mostly peaceful public confrontations of Power. 

As we saw in the Sixties, it takes such direct confrontations to force Power to reveal ugly truths that otherwise must be masked.  In the case of the Occupy protests, it is the truth that public spaces do not really belong to the citizenry; that private powers can curb dissent through procedural pretexts notwithstanding the First Amendment; and that democratic accountability as now practiced in the American empire is mostly a charade.

When an outburst of real democracy emerges, as it has in hundreds of Occupy cities, it sends shockwaves of fear throughout the political establishment and business – because real democracy advances a whole set of interests that are anathema to the elite consensus and pseudo-democracy that now prevails. 

Blogger Namiza Naqvi makes some penetrating points about these issues in a fascinating post about the re-privatization of public spaces.  Naqvi writes:

"An overarching issue is the public versus private ownership in everything from police to politicians to parks to property all over the planet in its cities and its villages. Whether it is a military or it is police the purpose seems to be to serve this end of privatization.

"The reaction by the law enforcement agencies to the [Occupy] protests have proven that people protesting the occupation or privatization of public property are viewed as criminals by the privately owned 21st century state..... In the eleventh hour of the 21st century in Times Square: I watched the police pushing the barricades even further in on the sidewalk cramming the demonstrators even further on an already narrow space and creating a potential crisis if the crowd got jammed in and someone fell or a stampede broke out because of all the police on horseback. The police steadily pushed back the barricades and diminished the space where protesters could stand and it seemed that the cops by doing this were forcing the crowds to overflow onto the street and creating the pretense for arresting people for not remaining within the designated area for the protests.  As I watched this situation at Time Square I thought of all the fences and blockades and barricades in other parts of the world where people are squeezed off of their lands—their homelands—their homes razed to the ground and bulldozed turned into private properties---while the people are forced into dangerous environments—flood basins or coastlands or unwelcoming hostile cities in their own or foreign countries—in the path of disaster—or into cities where they have no chance of incomes—living in ghettos—begging, living on the streets homeless—only to be further abused and harassed by police and militaries.  

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Enclosures of culture are inherently difficult to see because they are so seemingly isolated, gradual and invisible. A great example is the commercialization and commodification of play, one of our most instinctive and important human activities, especially in childhood.

So what happens when a giant octopus of a sports industry begins to professionalize and regiment the natural inclinations of play? What happens when a commercial harness is put around our sense of fun and recreation and goofing-around, so that it can become a powerful money-making machine? What happens to ethics and sportsmanship? What happens to the experience of childhood?

These were among the topics discussed at a small conference convened in September 2009 by the Lake Placid Sport Forum in cooperation with the Aspen Institute. The event was one of the more fascinating side-trips that I have taken as a rapporteur. Coming from a wonky political background, I had never personally encountered so many deeply committed athletes in the same room.

Hanging out at a small conference center and private home in Lake Placid, New York, I met Mark Messier and Mike Richter, two legendary former hockey stars with the New York Rangers. I also met Olympic track star Al Joyner and hockey player A.J. Mleczko, among other serious athletes. While each of these people were incredible physical specimens, they were, more to the point, incredibly committed competitors with an almost spiritual focus on the beauty of sports competitions and play itself.  At the conference there were leading sports journalists from Sports Illustrated, ESPN and Business Week. And there were a variety of coaches at all levels (professional, college, amateur), sports physicians and psychologists, journalists, community leaders and parents.

One of the key reasons that the American political system is so corrupt is because it is so expensive to run election campaigns. And one of the key reasons that campaigns are so costly is because political advertising on television is so expensive.

How bad is it? The latest word is about $3 billion. Local TV stations alone are expected to reap between $2.5 billion and $3.3 billion in political advertising in 2012, according to Ken Goldstein, who tracks political spending for Kantar Media CMAG. This represents about half of all the money that candidates and interest groups are likely to raise in the election cycle. All told, local TV stations are expected to siphon up between 42 and 48 percent of all the campaign monies raised. 

To my readers -- my apologies for my infrequent posts over recent weeks.  I’ve been overwhelmed with a writing deadline on my Commons Law Project, happily sidetracked by a vacation, and attending a conference.  But I promise to be posting more frequently in coming weeks and months.

My visit to the Vis Green Academy in Croatia last week taught me more about the transnational scourge of enclosure and the potential of the commons as a lingua franca for resistance.  The occasion was a major gathering of 200-plus Green Party activists and elected officials throughout eastern Europe, but especially Croatia.  Held on the lovely island of Vis, a former Yugoslavian military base until 1992, the gathering was entitled, “The Crisis of Political Imagination – and the Transformation of Green Politics."

The recurrent pattern of enclosure in Croatia, Slovenia, Macedonia, Herezogovina and other parts of the region is commercial development of urban public spaces and government collusion with speculators and developers in giving away prime coastal real estate.  Corruption is rife.  Political transparency is rare.  Civil society is weak.

I gave the following talk at the Caux Forum for Human Security in Montreux, Switzerland, on July 13, 2011. 

The commons is, at its core, a very old – and a very new, recently rediscovered – system of governance for managing resources.  It has deep roots in history as a system of self-provisioning and mutual support.  It is also a way of being a human being that goes beyond the selfish, rational, utility-maximizing model of homo economicus that economists say we are.  The commons presumes that humans are more complex, and that more holistic, humane types of human behavior can be “designed into” our governance institutions. 

In its largest sense, the commons is about stewardship of the things that we own in common as human beings.  It’s about ensuring that we protect them and pass them on, undiminished, to future generations. 

Let me add, the commons is also a growing trans-national movement that manifests itself in many different ways.  The commons extends from cyberspace to the many commons of agro-ecological knowledge managed by indigenous peoples.  It reaches from the world’s city squares and parks that are the cradles of community, to the vast repositories of information and creative works that must be shared if they are to be kept alive.

A massive international land grab is now underway as investors and national governments buy up millions of acres of farmlands in Africa, Asia and Latin America.  It amounts to an unprecedented and novel set of enclosures of worldwide land, much of it customary land that rural communities use and manage collectively.  Hundreds of millions of rural poor people rely upon the land for their families' food, water and material -- but they don't have formal property rights in the land.  Those rights typically belong to the government, which is authorizing the sale of “unowned” lands or "wastelands" to investors, who will then use the land for market-based farming or biofuels production.

The implications for global hunger and poverty are enormous.  Instead of commoners having local authority to grow and harvest their own food, they are being thrown off the land so that large multinational corporations and investors can feed their own countries or make a speculative killing on the world land market.  A commons is converted into a market, with all the attendant pathologies.

The 2008 financial crisis and the recent round of rising food prices on world markets have spurred much of the interest in buying up arable lands in poor countries.  Food-insecure countries figure they should take care of their own future even if it means depriving commoners in poor nations thousands of miles away.  So Saudi Arabia is spending $1 billion for 700,000 hectares of land in Africa for rice cultivation.  South Korea is buying up 700,000 hectares of African land as well.  India is assembling investment pools to buy up farmlands.