David Bollier

The political right in the U.S. is dominated by libertarian-minded champions of the “free market” and highly limited government – not the most natural ally of progressives who like the commons.  Yet that doesn’t mean that there aren’t some interesting possibilities to explore.  Consider this remarkable video clip of Bill O’Reilly talking with Lou Dobbs on Fox News about rising oil prices.  (A tip of the hat to Peter Barnes for bringing this to my attention.)

O’Reilly starts off the segment by noting that oil companies are exporting U.S. oil to foreign countries, which in turn has caused U.S. gas prices to rise.  “It is my contention,” O’Reilly says, “that we the people own the gas and oil discovered in America.  It’s our land and the government administers it our name...Land and water are the domain of we the people.  That’s why oil companies have to get permits.  They can’t just go around drilling anywhere! That’s why there are environmental laws – to protect the domain of we the people.”  (Wow -- O'Reilly defends environmental laws!)

Bill then asks Lou Dobbs, a former CNN business news anchor, Tea Party supporter, and now a Fox commentator, what he thinks.  Dobbs says that he agrees with O’Reilly -- we the people own the oil, coal and other energy resources in the U.S.  Then he adds, “In Alaska, there is a perfect model for what we should do as a nation.”  He then proposes that the federal government create an American Trust Fund modeled on the Alaska Permanent Fund, a state-charted trust fund that collects a percentage of revenues from all oil drilled on state land.  The trust then invests the money and distributes annual dividend checks to every citizen in the state.  In 2010, every Alaskan resident received $1,281 kicked from a trust fund worth more than $40 billion.  None of the trust fund money goes to the government.

The Occupy movement is beginning to discover the commons, and the result could be a rich and productive collaboration.  This was the lesson that I took from a three-day conference, “Making Worlds:  A Forum on the Commons,” hosted by Occupy Wall Street in Brooklyn this past weekend. Rarely have I seen so many ordinary people from diverse backgrounds embrace the commons idea with such ease and enthusiasm.

There was a certain cosmic appropriateness that this gathering was held in a church meeting hall, the Church of the Ascension in Greenpoint, Brooklyn.  This is the kind of humble, out of the way setting that gave rise to the civil rights movement 50-60 years ago.  Church basements virtually require us to shed our pretensions and credentials, and to get real with each other.  As they say in the Occupy world, this was a “truth event” – an occasion meant to rip a hole in the fabric of mainstream culture and provoke some deep and honest reflection on the truth.    

Can the commons paradigm take us to higher ground?  For the 100-plus people who showed up, the forum was an occasion to consider how the commons can open up new vistas in “alternative economies, open source, education, environment, technology, labor, politics, race, gender, sexuality and more.”  In typical Occupy style, the meetings were run in a fairly loose fashion; it was not always clear who was “running” the meeting because many people intervened at various times. 

And yet things never got out of hand, and I cannot recall a meeting of this size that was richer, more provocative and constructive.  People really listened to each other.  People actively invited everyone to speak out, especially those who were more reticent.  Your professional credentials were a secondary matter.  And if someone got too agitated, people would use calming hand gestures to cool things down. The dialogue was an intelligent, passionate, highly sophisticated and practical dialogue of ordinary American citizens.  Refreshing!  Now if only such traits could somehow be engineered into our mainstream political culture and media!

The world of law is not especially welcoming of the idea of the commons.  There are too many blurry lines and idiosyncratic contingencies.  Lawyers like bright-line rules and cause-and-effect scenarios.  The varieties of commons are also unsettling to legal minds, it seems, because commons can be difficult to systematize and square with western law and its focus on individuals. 

Lawyers also prefer to see law as a partner with neoliberal capitalism and its mythopoetic narratives about human progress through technology, consumerism and economic growth.  These attitudes are especially problematic when it comes to environmental law, which has not been terribly effective over the past fifty years in restraining the appetites of capital-driven markets and corporate property owners.

To be sure, property law scholars spend some time dealing with the commons as an alternative to the standard narratives.  But here, too, the “tragedy” parable tends to prevail and the commons is usually treated as a curiosity of medieval history and rural, “under-developed” countries.  It is not seen as a hardy, versatile contemporary paradigm that might actually address some deep pathologies of the "free market."  For example, the commons helps us talk about the compulsive externalizing of costs, the ethics of monetizing all value, the growth imperatives of the economy today, the legal prejudices against collective stewardship and long-term commitments, and our cultural alienation from nature and each other, among other issues.

Generations of such thinking will not be easily overcome, I realize, but I am nonetheless pleased to announce a brave attempt to carve out a richer space for the commons in legal education.  A new law textbook, International Environmental Law and World Order:  A Problem-Oriented Coursebook, just published in the Third Edition by West Publishing, includes a chapter by me, “The Future of International Environmental Law:  A Law of the Ecological Commons?”

I used to keep track of all the outrageous ways in which culture is being locked up through property rights:  common words (“entrepreneur” as a trademark), three notes of music (the NBC chimes), smells (mown grass on tennis balls), synthetic elements of the Periodic Table (patents on nano-matter), images of now-deceased celebrities (Marilyn Monroe, Elvis), and more.  Since publishing Brand Name Bullies in 2005, I have lost much of my compulsion to collect such stories – but I remain fascinated by lurid sightings of the ownership ethic run amok.

So I perked up when I saw Salon’s recent piece, “Can You Own a Color?” by Jude Stewart. The article is about how certain colors have been appropriated by major companies as trademarks, or more accurately, as “trade dress.”  It’s a bit dismaying to realize how much of the color palette in our consciousness has been effectively appropriated by corporate interests, at least as a matter of reflexive cultural identification. 

What’s legally ownable may be another matter.  Just because UPS has a trademark in that certain shade of brown for its delivery trucks, and just because Cadbury Chocolate has a trademark in that certain shade of purple, does not mean that they own the color outright.  But sometimes it comes close.  Legally, their trademark is only for colors in a stipulated category of goods or services.