How Shall We Govern the (Online) Commons?

I spoke at Harvard’s Berkman Center for Internet and Society last week on a topic that preoccupies me a lot these days: “How shall we govern the commons?” As the commons becomes a powerful new model for creating value and managing shared resources, the complexities of how to structure a commons — legally, socially and (in online contexts) technologically — are becoming more urgent.

History and commons scholarship offer some useful guidance. But few people have studied how we might better understand and manage the proliferating commons of cyberspace, which have some very special dynamics.

If the fundamental need is to ensure that “that which is created in the commons, stays within the commons,” are there some key principles to assure such management? How much depends upon legal rules and the design of software infrastructure, and how much depends upon the social ethic of a particular group of commoners? Are there some recurrent commons structures?

These are some of the issues I explored in my talk, a video of which has now been posted to the Berkman Center website. There was some great discussion afterwards (for those with the stamina to watch the entire webcast). For the rest of you, here are a few highlights.

The first thing to understand is that the “commons sector” of the Internet is grossly under-theorized. The explosion of experiments on the Web makes it hard to identify enduring principles. However, some meaningful distinctions can be made. There are open participation models like Wikipedia, free software projects and the blogosphere, which are generally open to everyone. There are stewardship models like Craiglist and the Internet Archive, in which a committed commoner acts as a curator for a dynamic body of shared resources.

There are open-platform businesses like Flickr and Facebook, in which a profit-maximizing company manages a faux-commons of user-generated content based on terms of service that it dictates. (Such faux commons may amount to “digital sharecropping,” in Larry Lessig’s term, by privileging corporate needs over the interests of users.)

And there are businesses that make money on open platforms; impose few if any copyright restrictions; and interact in respectful, collaborative ways with spirited fan bases (e.g., Jamendo and Magnatune in music).

The commons scholar Elinor Ostrom has studied some of the recurrent management principles of successful commons. Among the features she has identified are: clear boundaries to define the community; appropriation and provision rules that match local conditions and resources; the ability of people to participate in making and modifying the rules of the commons; monitoring of use of the shared resource; graduated sanctions against disruptive individuals who might destroy the commons; etc.

What principles might apply to online commons?

First, there is a distinction between “open” and “free.” An open platform may enable free access and use by anyone, but it may also be a proprietary platform that does not allow users to govern themselves. Thus, the terms of service for Facebook may allow the company to data-mine everyone’s personal information and sell the results to marketers. Or the Google Library project, while providing free access to out-of-print books, also imposes proprietary restrictions on how those digital texts may be shared. (By contrast, the Open Knowledge Commons project is also digitalizing out-of-print books held by university libraries, but its books are available without restriction.)

Second, some commons privilege the needs of the community over individual choice. The General Public License for free software invites a person to be “in the commons” or to stay out of it. All that is required is to honor the terms of the GPL, which authorizes sharing and prohibits taking the code private. Simple. But the Creative Commons licenses do not by themselves create a commons; they let individuals decide how they want to share, or not share, their works. A true commons may or may not result.

This has resulted in philosophical quarrels in some circles about whether the CC licenses truly honor “freedom” and the commons. After all, some licenses like the NonCommercial and No Derivatives licenses limit how a piece of music or photography may circulate and be used. The work is not as “free” as a work licensed under a simple Attribution license, for example.

The problem with privileging individual choice and multiple licenses is that pools of legally incompatible content can develop around the different licenses, so that (for example) Wikipedia content cannot be melded with CC-licensed content. Some large swaths of the commons can become fenced off and balkanized!

Then there are questions of whether a commons needs formal legal rules to function (as we assume in Western countries) or whether a commons can be constituted solely through social negotiations. A purely voluntary, social commons in the United States is likely to be vulnerable to free riders and appropriators because we tend to see law as the ultimate guarantor of rights.

But people in the global South may complain that a commons that depends upon law and civil institutions is a privilege of the affluent. A peasant may not be able to read or afford a lawyer. A rural community in a developing country may not even have established civic institutions. Does that mean that he or she cannot form a sustainable commons? History shows otherwise.

Finally, there are questions about how commoners can interact in a stable, sustainable way with the marketplace. A new breed of “open businesses” aspires to build hybrid models to blend the two regimes. But the terms of engagement matter critically.

Unless special protections are adopted, businesses generally have greater power and are likely to “enclose” the commons for their own financial gain. How, then, does a commons protect its special capacities to generate (non-monetized) value while allowing a controlled interaction with profit-making companies? Some ingenious open-business models are showing that a company can respect the autonomy of a commons while harvesting the fruits of the commons (user-based innovation, word-of-mouth marketing, concentrated consumer demand). But whether such models can scale, and whether the managements of open businesses can restrain their urge to over-propertize and over-monetize the commons, remains an open question.

For more, watch the video.