 This is sort of where a lot of things got started in my book, Viral Spiral. I wanted to tell the story of, in the big arc of the history of how free software led to the invention of the Creative Commons license, which led to all these creative sectors that adopted the licenses, which led to the internationalization of the licenses. There's now some 70 countries that have or are porting the licenses. And then it led to things like open education, the open educational resources movement, the science commons, and the whole variety of innovations going on to make information more accessible as a commons there, and a variety of open business models, burgeoning new front, and then new forms of direct citizen action and commons governance in the larger democratic polity. So that's sort of the rough arc that I cover in my book. And I could go through a lot of that, but with this crowd in particular, who is probably familiar with much of it, perhaps not in the detail that I cover it, I decided that it might be a little pedestrian. And instead, I wanted to focus on some themes that provoked me in the course of doing my research, in which I consider live frontier issues for me as I think about what the commons means and its potential. So I titled my talk, How Shall We Govern the Commons? Because I think that strikes me as a major issue that we have to deal with. It's come about partly because the commons has become a new model for creating value and for governing shared resources as opposed to the way government might do it or the way markets might do it. I see the commons as a new sector. And so the questions of how we govern the commons becomes a more urgent issue. There's not much of an ongoing conversation about this, let alone compelling theories. There are a handful of people like Yochai Benkler and Jonathan Zittrain and Larry Lessig and Michelle Bowens who have focused on this in one way or another. And I've taken a lot of inspiration and edification from their work. But I'd like to frame this conversation in a slightly different way as informed by my research in preparing my book. And let me just start with the commons as a paradigm. It is both ancient and new and remarkably misunderstood. It dates back, of course, to medieval times, the famous grazing of sheep and cattle on the physical commons. But it was more than just that. It was really a social system for managing shared resources, especially for personal and subsistence purposes as opposed to market purposes. That came later with the enclosure of the commons. It was also a source of collective purpose to meet personal needs and a source of custom and tradition. So those are some paradigmatic meanings for the commons. I would recommend a book by the historian Peter Linebaugh called The Magna Carta Manifesto, which sketches the history of the commons in those times leading up to the Magna Carta. And the commons is a political counterpart to law. The law didn't simply propound these principles. The commoners had to struggle for them. And the Magna Carta in Linebaugh's reckoning was an armistice between the commoners and the king, with law being the articulation and formal clarification of that. So I think there's a lot of rich tradition to draw upon in the commons when we talk about it today. But when we talked about the public domain was the closest we had to a commons prior to, I'll arbitrarily say, the year 2000. And the public domain was regarded by copyright traditionalists as basically a junkyard, a wasteland, because the only stuff that went there was stuff that had no market value. It was government documents. It was old sheet music. It was works that were more than 75 years old. And it was regarded as, by one, reckoning the dark star and the constellation of intellectual property. Hardly needed to consider it. And in fact, the first law review article on the public domain didn't occur until 1981 with David Lang at Duke Law School. Jessica Littman followed up in 1990, the second major piece on the public domain. And there were other people like Peter Yazi and Pamela Samuelson in the 90s, Lesig and Benchler also. But it was a grossly underexplored realm. This Jack Valenti quote captures much of the spirit of the standard line about the value of the public domain. A public domain work is an orphan. No one is responsible for its life, but everyone exploits its use until that time certain when it becomes soiled and haggard, barren of its previous virtues. Who then will invest the funds to renovate and nourish its future life when no one owns it? So this- Yeah, let's share it for the public. But this, even now, and of course in many circles, is the prevailing view that the public domain is not really worth that much. And I thought it was interesting that in 2001 when Duke Law Professor Jamie Boyle hosted a landmark conference on the public domain, he had trouble persuading Eleanor Ostrom, the Indiana University scholar of the commons, albeit natural resource commons mostly, to come to the conference. So she didn't quite intuitively see the connection or importance of the two at the time. And so the discourse of the commons was really an arcane specialty that occurred mostly within academia. This started to change in the 90s as the web took root in 1994 and people started to see that perhaps the public domain and social communities did create value. And Richard Stallman was arguably the first to demonstrate this in a powerful way by demonstrating the efficacy and virtue of free software, how communities coming together could create code that was valuable. The more famous example was the Emacs Commune that he started, a word processing collective. And it basically showed that sharing and interoperability can create valuable new things. And it also created the instructive lesson that incompatible code led to a tower of Babel and that if derivative improvements were not shared, there was this kind of entropy and the whole thing fell apart. So that proved to be, as many of you can gather, an important lesson. The problem with the Emacs Commune, which was also instructive, was that everything had to feed back to a centralized source, which was Stallman himself, in order to integrate it into the program. And there was no legal enforcement. It was purely a voluntary social scheme. And so when MIT started a password system, it enraged Stallman and the hacker values of the community he represented. So he decided to try to maintain code as a shared collective resource, but he found that it was a vision with no legal tools to help enact it. And this is where we come to software as a commons. Stallman's signal contribution, of course, was in inventing the general public license, and which helped give illegal enforceability to the commons so that that which was created in the commons would be able to be protected and stay within the commons and not be appropriated or privatized. Now, the GPL might have been simply an interesting tool, but for the fact that the internet took off as a platform for mass collaboration, and then copyright industry started to tighten the screws on proprietary control. In the 90s were the time when so much happened in this regard from the Sunny Bono Copyright Term Extension Act to the DMCA to expansion of trademark prerogatives, expanding how much trademark owners could control. And it is the legacy we're dealing with now. But one thing that allowed so much to happen on the commons, despite those things, was that new infrastructure was developing for building the commons. You had the technological infrastructure of open platforms and free software. You had legal platforms of licenses at first, the GPL, and later the Creative Commons licenses. And then you had social communities and ethics and norms and shared ideals taking root. And together these became tools for, as I put it in the subtitle of my book, how the commoners could build the digital republic of their own. This was a way for starting to transcend the famous tragedy of the commons. Garrett Hardin on the left was a biologist and ecologist in the late 60s who published this famous essay in Science Magazine in 1968 called The Tragedy of the Commons saying that a commons invariably ends up being over exploited and ruined because people just come and take what they want and there's no one there to protect the resource. This took root as a cultural myth fueled by a lot of conservative political ideologues and economists as what a commons was, something that's always necessarily over exploited. Near the end of his career before his death, he acknowledged that he had mischaracterized the true commons, that he had described really an open access regime and not a commons because a commons has rules and for governance. It's not simply a free for all the way he had described it. There was another difference, at least as it applies to the cyberspace, which is he was describing a finite depletable resource, whereas in cyberspace it's an infinite expandable resource where in fact, as Dan Berklin, the inventor of Vizicalc, the co-inventor described it, there's a cornucopia of the commons. And in a more scholarly way, Carol Rose, the law professor at Yale, described it as the comedy of the commons where the more the merrier, in other words, the more people who participate, the more value is created in the commons provided there's certain rules for management. But still, the tragedy thesis has been a major cultural stumbling block to understanding and appreciating the value-generating capacities of the commons. And the point is the commons is generative. Jonathan Zittrain deals with this a lot in his recent book. We all know many examples of how this occurs, that the commons is not the wasteland that the theorists of the public domain had suggested, but in fact, there's socially created value. And as Yochai Benkler pointed out in Wealth of Nations, it's a macroeconomic and cultural force in its own right. And this is something I think we're just coming to terms with, that the commons is in fact a sector that's growing. And there's countless examples of different commons in communities that are creating value. So because this is getting so large, proliferating, robust, it leads me to the question of, how shall we govern the commons? I don't think we have a clear idea. I think this area is terribly under theorized about what are the principles by which it should be governed. Eleanor Ostrom in her 1990 book, Governing the Commons, posed it this way. How should a group of principles who are in an interdependent situation organize and govern themselves to obtain continuing joint benefits while all face temptations to free ride, shirk, or otherwise act opportunistically? And she set forth eight design principles, which she didn't, I think, consider comprehensive or the last word, but general guidelines for certain principles that allow a commons to be governed as a commons. Things like clearly defined boundaries around the community and appropriation and provision rules that are consistent with the local resources or the local conditions, the fact that people can participate in the decisions for governing the commons. And that there's monitoring, transparency of it, and there's graduated sanctions against free riders or vandals, and so forth. One, I've often struggled with the question of, how do you define a commons? And it's often very confusing precisely because of its local, its situated locally. Now, this slide, a variation of the slide was shown to me by Eleanor Ostrom once. And she said, that's a common. And I was a little confused. This represents a shoveled out snowbank in South Boston, where if you shovel it out, the neighborhood ethos is you have the entitlement to use that parking spot for the duration of the snowfall. And this is enforced quite vigorously by the neighborhoods. Some say in an over-aggressive or criminal way. But for me, I said to Ostrom, well, why is this a common? She said, well, it's a shared understanding by the neighborhood about how to allocate a scarce resource. And the scarce resource is parking spots during a winter. Now, I like this example because it helps illustrate one, there's no master inventory of commons. And the fact that it's a commons doesn't reside in the resource itself, but in the social community that's focused around the resource. So it helps me understand that the commons is a flexible paradigm that can apply to really many, or even any type of resource, so long as there is a defined community governing it. The way I once described it in a paper was a commons arises whenever a community decides that it wishes to manage a resource in a collective manner with a special regard for equitable access, use, and sustainability. It's a social form that has long lived in the shadows of our market culture, but which is now on the rise. The parking space issue also raises the point that you can have order without law in the phrase of Yale property professor Robert Elexon, that you can have self-organized, socially enforced, informal types of governance of a resource through shared understandings. And then one of the more controversial things that this shows is the tension between commons governance and government. Some people who maybe don't belong to that neighborhood try to park in that spot, or throw the chair to the side and park in it, and will have the tires slashed. And this prompted the mayor to say, well, there's a two-day limit on this, or he wanted to do away with it entirely and have city rules govern, but I think agreed to a two-day rule. So there's a tension between, say, the government of a democratic polity and a more local defined commons is about whose morality and sense of fairness and governance rule should prevail. And I think you can see there's a certain complexity where, in some ways, there's something wholesome about a commons being able to have that subsidiarity and local control. In other ways, you can see the need for a broader governance. For me, an open question is, can we develop a new taxonomy for digital commons is because the idiosyncrasies of the chair and the snow bank applies in spades to the internet commons is where everything's an on-the-fly experiment. We don't really have a general theory. Commons usually are the product of unique historical circumstances, personalities, the resource itself, the peculiar culture of that community. And so we're on a really experimentalist frontier with only some rudimentary theoretical explanations. There's some general principles, but I think we need a more refined taxonomy. And maybe, I don't know if we dare to, say, try to develop a consensus about how we might define the commons and build it. We know a bit about developing the software platforms and the legal licenses, and there's some pretty robust debates about the value of those. I do think we could use more study of the moral economy of commons, the sociology of them, and the personal psychology, especially in the online world. And I know there's some empirical studies going on. There's a friend and colleague of mine at UMass Amherst, who's Charlie Schweik, who's developing a empirical model of free software development and trying to study that. I know there's others who have waded into that territory. The sociology of the Wikipedia is a fascinating topic, if only because of the big scale and success of that project otherwise. But what we see are different notions of freedom, how to set community boundaries, how to devise social practices that work, and how much to rely on law or not to help protect the commons. But the common goal of most of them is how do you protect the integrity of the shared resource in the community itself? So let me offer some examples or some distinctions that might matter as we think about this. One is the whole notion of open versus free. The Free Software Foundation rightly makes a big point of this distinction, how open platforms may be accessible and shareable, but their freedoms might not persist because it's really at the sufferance of the owner of that open platform. And so we see this played out a little bit in the Flickr and its terms of service, or Facebook and its privacy terms of service, where the owner of that open platform can say, well, I'm just going to impose my own terms without regard to the commons because the commons, it's more of an implied social contract as opposed to a contract where the commenters themselves have their own sovereignty. So the whole question of open versus free raises questions of business appropriation versus community control of Larry Lessig's beautiful phrase, digital sharecropping versus commons governance or whether something should be monetized or whether the community can maintain it as an inalienable resource. And I should point out there is an overlap between open and free, but there is this big divide that sometimes can be quite functionally important. Another distinction is individual choice versus community. The creative commons licenses do not necessarily create a commons, ironically. They're really just tools for building a commons as if you do so, but moreover, they privilege individual choice, which may undermine the creation of some commons building, some critics charge because they allow opt in or opt out. And some people regard that really as a lesser form of commons than you're either in the commons or you're not in the commons. The GPL, for example, is I think a pure type of commons because there's really a binary choice. Are you a participant in this commons? And if not, you're out. Creative commons builds a more complicated, individually driven set of commons, which therefore has a different philosophical grounding. Sometimes these differences have ripened into I think tribal cultural differences as might be seen in the quarrels between the Wikipedians and the creative commons community over the free documentation license and whether it can be migrated and under what terms to a creative commons license. So another distinction that we have to keep track of when we talk about commons. Another one that I encountered a lot in my research was shall we build within the house of copyright the way the GPL and the creative commons do or should we challenge property discourse? One of the more forceful advocates on this topic is Neva Elkin-Correnda, Israeli law professor who has, I'll just read a brief quote from her in which she has misgivings about the creative commons for reinforcing the normative discourse of property. She says, while ideological diversity may be crucial for the success of a social movement, and she's referring to creative commons, it may impair efforts to make creative works more accessible. The lack of a core perception of freedom and information may lead to ideological fuzziness. This could interfere with the goal of offering a workable and sustainable alternative copyright. She says that CC regime, I'm not quoting but paraphrasing, encourages narrow calculations of self-interest in the same attitudes towards property and individual transactions as the market economy. It does not promote a coherent vision of freedom that fortifies the commons as such. Well partly in response to that, the creative commons issued a so-called free cultural work seal and definition which was an attempt to encourage people to recognize that certain licenses are more free than others and so the attribution and share, attribution share like licenses are free, but the non-commercial and no derivatives licenses are not because they don't allow the freedom to modify without discrimination to anybody. Another set of distinctions, criticisms of how some commons are structured. From the left you have challenges that well how come the commons isn't being used to challenge corporate power and neoliberal economics? So why is the creative commons so ready to play with certain corporate players? The global south you have some people saying that the public domain, there's a famous law review piece called The Romance of the Public Domain which takes to task the romanticization or supposed romanticization of the public domain by western legal scholars because it simply means that those in the south who open their works to the public domain have them ripped off by the most powerful appropriator, oftentimes multinational drug companies who are looking to steal works for free and then make a lot of money in the market from them. You have also from the south you have criticisms that a commons that depends upon institutions of law is itself antithetical to their notion of the commons as a purely social means. There was a great letter I once encountered, open letter from the Racks Media Collective in New Delhi which said, greetings, this missive arrives at your threshold from the proverbial Asiatic street located in the shadow of an improvised bazaar where all manner of oriental pirates and other dodgy characters gathered to trade in what many amongst you consider to be stolen goods. To this other common, stolen goods are really borrowed because nothing is really owned. That goes on to say, we appreciate and admire the determination with which you nurture your garden of licenses. The proliferation and variety of flowering contracts and clauses in your hot houses is astounding but we find the paradox of a space that is called a commons and yet so fenced in and in so many ways somewhat irritating, somewhat intriguing. The number of times we had to ask for permission and the number of security check posts we had to negotiate to even enter a corner of your commons was impressive. Sometimes we found that when people spoke of common property it was hard to know where the commons ended and where property began. So that's sort of a somewhat southern, one southern perspective on commons that happened to be guaranteed by civil society. And then fair use advocates, while they would argue that these creating of commons doesn't grapple with the existing state of copyright law and frankly we need to help clarify and expand fair use to empower people to deal with the commons as it works within copyright law. So you have these very different notions of what the commons is or should be. Yet another frontier that we're just now I think starting to encounter more forcefully is whether the common and markets are synergistic and compatible or more hostile to each other at a basic level or does it depend upon what you're talking about? My principle is that which is created in the commons should stay in the commons dot, dot, dot with the corollary unless the commoners decide otherwise meaning they control the terms by which the common, the resources of the commons are monetized. So I think you can have some constructive collaborations between online communities and the market but what matters is the terms of that collaboration and how it's transacted. The point to remember is that I think the commons and the markets each have their own value propositions and if each are gonna create the kind of value, the different qualitatively different kind of value they do create, you need to respect their core functioning which is one reason why it's so important to protect the commons. Larry Lessig's remix book starts to grapple with some of these issues of the hybrid economy and he sketches a number of working examples. Let me just run through a handful of paradigms that I see in which it's sort of a spectrum of open business to traditional commons. One of the open platforms we've already discussed, you have businesses using free user generated content. Another which I find an interesting hybrid is the iPhone model which could be called a curated open business model where they wanna reap the benefits of an open participation and open platform but still have a degree of proprietary control. You have things like the inocentive which is the drug industry queries where people can submit answers and get a bounty essentially if they provide useful knowledge. Then there's a whole nother area that Eric Von Hippel has sketched out in his book, Democratizing Innovation of basically with the community being the platform for a market and you build a market on top of a community and they sort of have a symbiotic relationship. Von Hippel suggests things like a lot of extreme sports, extreme skateboarding, skiing where those communities will be the first to innovate with new equipment and that can be a source of R&D for some companies. The idea is that the commoners become a source of R&D innovation, word of mouth marketing and purchases and the market fulfills their needs in the way that they perhaps could not do so themselves. Then there's other examples of building a respectful interface between a commons and the market. The way a magnitude, a music record label does or one could say the way the Grateful Dead did back in the day where they allowed the circulation of the music, they had a respectful relationship with the community but they still made money through their concerts and merchandising and legitimate CD sales. Then there's a new species of what I would call market oriented non-profits where the goal is not to make maximum profit but they are nonetheless engaging with the marketplace to develop revenues to serve their non-profit mission. And then finally you can see things like non-market cooperatives which one could see the Linux community or thousands of other free software open source communities as forms of a non-profit cooperation. The point I suppose that I want to end with and then I'd love to have a discussion with you about some of the things I've presented. I see the commons as a new social metabolism for governance and law that happens to have some deep economic and cultural impact. And I consider a lot of these issues very for me at least cusp issues because I don't have all the answers but there seems to be enough historical development to suggest these are some questions that are worth addressing. So with that I'd love to have some questions, comments and feedback. Yes sir. Could you apply some of this perspective to specific examples? You mentioned Wikipedia for example. And the different flavors that they come in compare and contrast I guess Huffington Post might be. Open platform with participation. Okay so maybe I'm less familiar than some other people here in the room but if you could just give some concrete examples. Sure well there's you have things like wiki travel which has user generated travel guides to different cities which the owner of that site is now trying to develop a for-profit publishing arm based on that. That's an interesting mix of the two. But you have a lot of online discussion communities like say the Daily Coast or which is a user generated community of commentary which has no profit purposes. They do raise some revenue through advertising which a lot of these communities are. I do have, I could go back to the slide that has the internet archives, the publicresource.org which is a repository for government documents that are being held by the government as not being made widely available. They're sort of like court decisions. If you were to put them in a spectrum. I guess maybe most free to some mixture of the two. Just some examples along the spectrum or. Well I haven't laid them out neatly for you in a spectrum like that but the communities that have no profit purposes that are for themselves fan fiction communities for example. Where they trade stories based on, I don't know if you know about fan fiction where you take a Star Trek and write your own stories based on the characters for example. There's lots of, that's arguably a cultural commons that controls their own fate. If one were to find a way to graft on a business thing to it without ruining the community that would move it towards a more hybrid model. I don't know if that answers your question per se but I should go back to the slide that there we go. Flickr has lots of photo sharing which it's an open platform but there's open, lots of open sharing. Presumably they're not going to ruin that commons because their business model depends upon respecting the sharing capacity of its customers. Wikimedia is expanding the Wikipedia franchise in different areas. There's wiki quotes, there's wiki species where it's a user generated collection of information on those areas. Jemendo, a vast repository of music that's available for free. All of it licensed under CC licenses. So those are some examples. Yes, sir. I'm just interested in your, go into your last slide. Oh, okay. Because you're offering a definition here. And it's a, metaphorically it's a natural one. It's not a spatial one. It's not a, it's not real estate. And I wonder how, if you've thought about how well they can fly. Because people are so used to thinking that commons is a place. And you go on the net, you don't go kind of in it. Well, who knows if it'll take or not. But the point is, it's relational. And the relations is what makes it work or not. And I think arguably that's what makes markets work or not. There's sort of an undergirding of trust and relationship that has to make, that's needed for a market. And we're seeing the dysfunction of it right now. So. I wonder if there's a relatosphere that's not metabolic. Not metabolic? I mean metabolic sounds to me like it's burning energy. Well, let me read a brief passage that. It produces gas. David Johnson, who's a professor at New York Law School, had a wonderful essay. I forget the exact title, but I want to read a brief quote from it because he described, he was an inspiration for me in this where he said, hold on a second. He compared, he didn't use the word commons, but he agreed with me that he had the same thing in mind. The goal of a successful legal organism must be agreed upon by those who live within it because a legal system is nothing more than a collective conversation about shared values. When it ceases to be that kind of internally entailed organism, the law becomes mere power. Social order quote becomes tyranny and the only option over the long term at least is war. Organisms can't be repaired from the outside, but with reference to interactions that take place primarily online among willing participants who seek primarily to regulate their own affairs, that's exactly where existing governments are situated. Outside the vibrant self-regulating online spaces they seek to regulate, et cetera. So, yeah, which is why I was captivated by the parking space example. It creates, it not only illustrates that self-organizing organism aspect of it, but the tensions it spawns by its relations within the existing legal order. I'm curious about the many lawyers in the U.M. to see what the law is saying. Same way as what? As an organism, or as a habitat. Who have any takers? Let's go like this. You talk about that metabolism conjures up the notion of consuming energy, but I'm with you about the homeostatic aspects of the commons is that it's not frozen. There's give and take and back and forth, but all around some sort of set point, if you will, which might move, but if it did it would be very gradually. So I'm not so sure habitat. Like you say, is real estate. No, no, no. I think that's one reason the commons is often sometimes outperforming markets because of that organic quality of information transfer and social trust in community, which for a market is far more cumbersome if you have to do it in hierarchical ways or through transactional means with money or lawyers, which is part of the value proposition. I think it's useful not to confuse two separate meanings of law. One is law and principle. We all live under the law. It's like the thing we, it's a truth to which we aspire. And in that sense, it has exactly these qualities that David's talking about. That is, it's a set of shared value that somehow exists as if it's like a natural law. It's our collective conscience. And then the other way of thinking of law is as a social environment. It is definitely a mediated discourse in which people are assisted by the structure that it offers to relate. And in that sense, very like the technologically assisted community of the commons, the various different ones that David is here describing. So in both senses, I think they're similar, but shouldn't be confused at this point. And one of the issues raised is how the law of the commons comports with existing structures of law and what kind of rapporteur mode they might develop. I mean, some of my, the arguments I have with my liberal friends about which form of order ought to prevail when I think that, you know, there's something to be said for both sides, but the kind of interaction matters between formal law and social law. Let's have another question. Yes? Can you talk about the international nature of the commons problem? I mean, you've got multiple jurisdictions, perhaps contradictory laws. Right, well, that's something I'm grappling with right now. And I was recently turned out for a great law review piece called Global Legal Pluralism, which tries to make the case that so much of the law has to deal, at least on the international scale, has to deal with the social on the ground realities anyways, whether it's with ethnic nationalism or some tribal community or whatever, that there's a case to be made for trying to more frankly deal with these different types of law in the broadest sense, rather than simply have some top-down, a formalistic nation-state-driven form of law. That's the best that I can go right now, but you're absolutely right. There's tensions once you start to expand this trans-nationally and how that comports with existing structures of international law. Yes, Wendy? It's a very interesting talk. One piece that's sticking in my mind is the question of governance is partly horizontal dividing among things that have been distributed into a commons and partly vertical shared interest in maintaining a platform on which the commons can operate. So Wikipedia depends on relations among its contributors and all of the contributors share an interest in maintaining a neutral internet on which they can build that platform. Does this get into how we can push for open platforms on which to build commons? One thing I immediately think of is I remember talking to Larry Lessig once and he said he saw the amassing of a constituency for a commons for free culture was itself an important political strategy for securing open networks. I mean, my own role in copyright law, a frontal assault on copyright law was going nowhere, which is why the Creative Commons was so brilliant in helping to build a diversified movement. So I think that creating these functional communities of social practice is one way for spurring that innovation and political demands and policy demands. And I have to say a phrase that I've learned recently that's very important to me. The commons is about commoning and the commons is a verb and that's important to realize because it's not just this inert resource, it's the social community that actively does or does not do something to protect its collective interest. Make up. So I liked your, I mean I like the idea of sort of individual and community and sort of creative commons for talking about individual rights and maybe the free software or movement sort of in the community side of the night. I like that characterization because it puts me on the side that I'd like to be identified with. But I think that you maybe are overstating the degree to which free software has sort of figured this out because the reality is that the vast majority of sort of free open software projects are actually very hierarchical to govern. And the reason that works, I think, and that it works out, it sort of turns into a commons is that you've got a couple, so I mean the other thing that's worth pointing out is that if you look at the freedoms and the sort of those four freedoms there, they're actually also highly individualistic in terms of the way that they're describing freedom. Users will have the freedom to do this, this, this and this, right? And this worked out because when, historically, as we use software, every user has a copy of their software, right? And so if you empower that user to have control over their software, they have the ability to do it. And yeah, when we're working in communities, we have this sort of, yeah, they might be governed sort of very hierarchically, there's always the threat of either a fork in that I can say, yeah, I don't like the way you're doing it, and then we're gonna go build somewhere else. Or you have the ability for each user to actually change that software before they use it, right? Which is something that happens repeatedly. The reason there are hundreds of different distributions, all of which have slightly modified versions of all the major pieces of sort of freedom. So we're seeing exactly that type of commons going on, but it's because there's highly distributed control over the nature of the artifacts themselves. Now, when we, free software is actually, I think, at a major crisis right now that is for the most part underappreciated in the community, because increasingly often when we use software, there's actually one piece of software that is used by lots and lots of people. Every web service basically falls into this category, right? There's exactly one Wikipedia or Facebook or Google, one set of code that's running. And even if those tools are free, even if we move to a system like Flickr and we have all the code, it doesn't necessarily make any of the users more free because they can't either because they don't have access to data or because even if they do have access to data, Wikipedia is a great example. Going and creating my own Wikipedia doesn't actually help anyone, right? So what we're finding is that in fact, our rules for collective governance are really based on a set of highly individual ideas of control and when we're talking about community and collective control, I think the free software communities are really at a lack of ideas for how to manage this. I think that you're right to say that it's a social problem and I may be a little farther and say that it's more of a political problem as well in that there's a politics around this and we need to start thinking about this. But I mean, so I guess the question is, what are the examples of community? So I'm someone in the free software community. I'm really interested in how we can sort of help bridge this and think about how we build network services that are under control, that are actually commons themselves where we have a single shared artifact and where we, I mean I guess we're back to a world of a certain type of scarcity in a sense and so what are the ways in which we sort of move forward in this and where do we look for help? Wow, whoa, well. I mean, I've been thinking about this a lot. No, no, I mean, I appreciate, I agree with what you say that there is far more individualism within the commons as a free software than perhaps I fully acknowledged. I think part of the issue is that so many free software communities, at least my friend Charlie Schweick who's been studying source forage communities, the most, the preponderance of them are relatively small in which you can have a social governance in that level. It does get political as you say, as you try to scale it and how do we organically scale and devise the political constitution quote for these larger communities is I think a key issue and I think there's a lot of thrashing about for precisely that question and I don't know the answer but I do know that people very much wanna make that work and have relationships that are not the types as mediated by a market but are mediated in a different way and it sounds like Charlie, you might have something to say to me. Well, I'm very impressed by research done by David Hoffman on Wikipedia, basically the dispute resolution of Wikipedia, the process. First of all, he was looking at Wikipedia as a functioning example of a commons and asking, well, what made it work and was telling a dynamic story about it through time in which he describes the evolution of the dispute resolution mechanism that goes on in discussion pages and the point that seems so striking to me was that the resolution of the disputes don't have anything to do with content. They actually are a process which winnows out the people who are willing to learn the norms of the community and when you get to the end of that process, if you push it all the way to the end, maybe somebody leaves the community but really they've constructed a way of creating a border of their community that does what you were suggesting, keeping out the griefers and suggesting that that's essential as a dynamic element of a continually functioning, technologically assisted community of humans. So I recommended David Hoffman and he's got another partner and it sounds very much like the kind of a structure that if you were looking for a structure, you could do a lot worse than to look at that model. But the point also is they have to be organically grown and not simply taken off the shelf. Yeah, that's true. Yes. So I thought Mega's point was extremely provocative and I wanna be even more depressing than he is which is to say that Mega's putting forward this concern that this old model of the commons largely had to do with this idea that we were all extremely talented homesteaders. We could digitally split our own wood and make our own butter and the truth is most of us can nowadays. It doesn't necessarily help to have the Wikipedia code because even if we brought it up, we couldn't run it, we couldn't manage it, we couldn't scale it. So the notion that somehow that code is out there and open is almost sort of a red herring. It's sort of beside the point. But it's even worse than that. Actually, most of the interesting community behavior, a lot of the interesting social dynamics right now are on commercially controlled closed communities of one fashion or another. And so far the attempts to have a constitutional moment in something like Facebook have been pathetic at best. So one of these questions really becomes is there a way to take this, I think extremely good thinking about the commons, what works in a commons and bring some of this thinking into some of these commercial spaces? Does that have to happen from the start and essentially say let's create different types of spaces that aren't as commercial as we think about it or is there a way to take what you are documenting here as working in a community space and essentially say to someone like a Facebook or to a Flickr, look, you actually don't have an asset without the user participation and unless you find a way to respect some of the values surrounding a commons within that, you're not actually going to have a business. Therefore you have to find a way within your corporate structure to support some aspect of commons governance. I agree that's the right direction. I mean, it's one reason I'm so fascinated in open business models because I think finding the artful, politically respectful accommodation between traditional businesses and the online communities is where it has to go and whether you can do that post hoc, Facebook style, I agree, they had some minuscule number of people who participated in their referendum over the terms of service. So it may just, that's sort of I think a really interesting political question of how existing open platforms might be quote reformed or whether we need to start conceptualizing new revenue models that combine business and commons purpose together in some integrated model. There aren't too many examples to draw upon but I think of things like Jemendo which is sort of a wonderful melding of that social purpose with the business but it's something I'm grappling with and I keep trying to find these provocative small scale examples that might be the germ or DNA for a different model. Yes? I'm published so I can witness that the tragedy of commons exists. Oh, it does. I mean, it's really devastated the country and I think the reason why it devastated it so badly was not that there was no structure in it or there were no rules or there was no governance because all of them were there, all of them existed but I think that the reason was that the reason was that the structures were not aligned or didn't align the public interest and private incentives, right? Because intellectuals of the system assume that people are half angels and they will contribute to public good with no incentives, with no motivations and it ended up with individuals either three riding on the public good or trying to capture it. So I also don't buy what economists say that we are all selfish because apparently we're not but we are self, I think we are self-interested. For instance, well, I'm self-interested in the way that I try to influence my students back in Poland what justice means because I want to influence legislation in my country to make it better. So I'm not selfish, I try to contribute to the commons, right? Both education and the other thing are commons but I'm incentivized to this, I'm motivated to contribute, to give more than to take, right? You didn't mention this question of motivations of incentives of aligning the commons good and private good. Would you develop on it? Well, I agree that self-interest is far broader than traditional economists regard it. Much I think depends upon getting a functional a functional legal, technological and social platform for people to participate in because otherwise you're right once it gets captured and free riders prevail and you do have the tragedy, the demoralization is such that it's hard to recover it. So I think part of our challenge is to devise structures that can be hearty, sustainable and serve this broader sense of self-interest. We do have all sorts of civil society structures, public libraries or parent teachers associations or whatever, which are some sort of vehicle for that. Can you be more specific about it or? Well, more specific, you asked about general process how to align the private interests and public interests, the interests of the commons in, I don't know, cyberspace. See, where matters? Because if it's in a natural resource realm which is depletable, there's a different politics. And then in the regulatory, part of my problem is a disenchantment with the regulatory state as the vehicle for solving that. Because it's so captured and distant from the resource and the people themselves. So I think it's partly how can we grow viable functional communities that have a sense of shared purpose and commitment and the online world seems to be incubating a lot of those, which is why I see some promise in that because it's a public platform that can push back on the existing political institutions, but sometimes effectively, you and then you. Yes? I just wanted to comment on to what degree is power concentrated in different commons? Like if you look at a lot of these, they're ostensibly common, they're open to the public. But in practice, there's usually like a very small group of individuals who hold veto power over things. Richard Stallman effectively holds veto power over how it, like, new works, right? If you look at any sort of major open-source project with maybe two or three developers, probably because they originally started or came in really early, who sort of decide everything else. And it's really easy to define, right? Like you go over any open-source project and you just Google, like, pick the name as a lead developer and put in like, is an asshole after that, right? And you'll find, you know, everyone like sort of hates this concentration of power. You know, and I was just thinking about it, and it sounds really similar to how sort of like international relations, international blood economy, in order for free trade to happen, in order for, or just like general pieces of stability, you know, a lot of people will theorize that you need a hegemon to sort of enforce the rule of law. So I guess my question is, in commons, you know, to what degree do you need sort of like a de facto hegemon? I think you do, at least you need de facto structures that have legitimacy and it can reach a crisis point, I think, where people say, that guy's an asshole and, but then we have the forking problem that Ben was mentioning, is maybe not viable to fork at a level when it has such dominance, it's the equivalent of a concentrated monopoly. So I think that's kind of a political quandary we face when a commons gets concentrated leadership that's not truly accessible and transparent. And you make a, I can, there are also many of the most high-profile and largest, you know, sort of, actually are governed very democratically, they have been projects, they've been on projects. I mean, they have an enfranchised system where you contribute and get a vote, you sort of, there are certainly people who have roles that are sort of delegated, but those are all recallable by the developers. So there are counter-examples to that as well. And the other example is that many of the most high-profile projects and the ones where people complain most about sort of the actions of the leadership have, in fact, been worked. Even New Emacs was worked successfully for a long time and the work was able to meet them, both projects persisted, but Xemacs and Emacs were working for a long time, the GCC and other, same leader in question here, also worked for a number of years and there were actually three forks that were ongoing and widely used for a long period of time and they actually merged back together which is an interesting sort of, there's an interesting sort of question about the costs associated with maintaining forks and duplication of work and some of the trade-offs that people make, but they also just resolved some of the political differences of personal differences in that process. So, and then there's examples like Inkscape is an example of a piece of free software where people have actually worked and where the fourth version became dominant over time and no one used just the old version anymore, so. I would say that you can find, I agree that it happens much of the time, but there's also, many of the most successful examples are counter-examples of that, so I'm more optimistic about the possibility. That's good to hear. Yes, sir. Oh, yes, go ahead. It's kind of weird to mention Debian though, right? Because like the general attitude in Debian is like we're getting our bucks kicked by Ubuntu, which is just Debian, but taken over by Canonical and Mark Shuttleburn. So as a Debian developer more than a year and the founder of the Ubuntu project, I would say that to this day Debian continues to track, and that's precisely the question that I think people in Debian and Ubuntu are struggling with, but to this day, Debian remains a much more vibrant example of this sort of commons-based production, even if it's not as successful as an example of creating a product that's used by more people. So, okay. Yes, sir, briefly, yeah. The public good has only come up tangentially here, and I wonder if you could talk about the relationship between commons and public goods, and particularly in reference to government, which showed up very briefly in form of tension. I mean, we think of, maybe it's quaint, but governments are the providers of public goods, or somehow they do that, and there's quite a number of public goods that are being developed in these commons-production forms, so where can that go? That's partly something I'm grappling with these days, because clearly the regulatory state has been inadequate for protecting the public good on its own terms, partly because the market has co-opted or compromised, I think it's ability to do that. For me, it points out the vastness and the scale of concentrated power trumping a community that has any meaningful control over it. Therefore, growing new communities of meaningful control can have a salutary, if not reformist, possibility, and if only by the example of asserting a public good that's different from that proposed by the market. By having something that can be inalienable, can't be ripped off and privatized, that's itself, every commons is itself a little mini living community trying to enact some form of the public good that's arguably better or at least qualitatively different from that which the market will generate. So simply diversifying forms of public good that can be delivered in meaningful, persistent ways is good and it builds a constituency that can help the reformists. If you get a big enough constituency of commoners, it's gonna be a counterpoint, if not a refuting example of people or a protesting bit of people to agitate for more than what they might otherwise agitate for as consumers, which restricts their identity and sense of possibility considerably. So that's kind of not a great answer to you but I do think if you have market government commons, you can start to change the equilibrium dynamically a bit more than simply the kind of agitation that liberals have been doing for the past 50 years. Since, so I wanna go back to the question of the international issues around having international commons where the same item, the same single take digital item can be considered to be in the commons within one country, same item, same URL, same place. Another country is not considered to be absolutely out of the commons and you're gonna see your asses off if you violate that. Do we resolve, in which case the common sounds more like a set of licenses than a set of... Are you talking about the same set of content on a website? Yes, yeah. How do we resolve that or do we never resolve it? Do we just continue to have a fragmented view of what constitutes... I think this is my off the cuff. I think we have a fragmented view. One thing that I've appreciated from mucking around in the commons is their fractal pointillist perspective, the pointillist in that trying to amass a unitary theoretically consistent world view of the commons is doomed to failure if only because all of them have rootedness in distinct communities. So I've resigned myself to that and it's almost a different metaphysic. I have a question. Sorry, that's the case. Is there some sort of meta rule above the laws and rules about commons, governance of commons that says, well, okay, here's how you've governed a world in which we are always gonna have... No, see, that's the theoretical frontier I was talking about. I mean, I think that as commons has become more rooted and bump up against existing structures, we're gonna have political confrontations about it. And... We're not allowed to say, well, in order to maximize and provide maximum freedom for multiple commons, we need therefore to have a meta rule that says... That's the right direction to go. I mean, I haven't figured that one out, but I think that's the right direction to go is how you have a polity or a policy structure that's hospitable to maximum commons growth. Because just as the government subsidizes the market in numerous ways, because there's a presumed benefit from promoting market activity, the commons creates value. Why shouldn't government help promote the incubation and proliferation of commons as creating other sorts of value, social conviviality, economic work, you know? So that's a political frontier we haven't quite gotten to yet. You think there's a natural size limit to commons? Ooh. That they could... That's... My inclination would be say yes, but there's all sorts of technological prostheses that are being invented to help scale communities. You know, if we get open ID systems perhaps, I don't know, but... Hearing you say a lot about the way commons grows out of relational interactions and shared norms. Do those diffuse as we try to add more... I think if we were going to use an ecosystem model, just I'll let you answer and follow up in a second. If you're going to use an ecosystem model, you know, species have boundaries for a purpose. And so perhaps there's some principle of speciation going on that might say, you know, getting too big, you become too inefficient and you're a dinosaur, or the answer is I don't know. But it's a very, I think, germane question. I think it's something that roughly characterizes the limitations of technological scale. So like Facebook has a fence around it. Wikipedia has a fence around it. It's less high, maybe they're not extracting value from it. But it's inside the fence, but nonetheless, it has to be a fence because you can't distribute the servers everywhere. I can't run Wikipedia on my laptop. I can't share with other people in this room. I think it's interesting it's suggested, like the existence of technologies that fits one where you have a true commons that is actually distributed to everyone, people that are sharing something using computational resources that have available, like the existence of something like this suggests that there's a new direction, which is outside of the fence. But it's just a matter of figuring out technologies that will increase the size of the fence we can build and everyone extending that fence and growing. That's a good way of putting it because the commons does have a fence. I would use the word fence very loosely. Yeah, very loosely. But yeah, it has some way to protect the integrity of its asset. Right. One of the things that's really exciting about this commons idea in general is that it has tremendous potential for the developing world where that technology is severely limited, but where they can exploit the value of a commons, whether it's in a website or it's a movement or it's a state of mind, I think it's something that can benefit from. Moreover, it's more endemic to pre-market or non-market cultures than to us where we're so infused with market norms where for them it's second nature. There's a real danger in that argument as well, which is that until you have commons enshrined across international law, you end up with situation after situation of something that sort of held to be a cultural asset in commons, then getting enclosed in another country. So if you want some good fun, read about the turmeric patent on how turmeric was used for years and years. I mean, literally documented in third century Indian texts for wound healing, but then sort of crossed over into the American medical establishment in part with Indian doctors coming over, found itself patent by a large pharmaceutical company, and then the Indian government literally had to fight the patent claim in U.S. court using third century Sanskrit texts as prior established prior art, thank you, I'm missing the phrase, to do this. The concern that starts happening as countries start trying to document cultural knowledge and put it together in a commons is that those commons, if not adequately protected, become places for international corporations, essentially to mine intellectual property and then lock it off country by country. So it's absolutely the right impetus, it's absolutely the right direction to go in, but there's this giant unsolved problem having to do with asymmetric legal regimes and the difficulty of someone in the Solomon Islands trying to protect a small snippet of music held in common that gets recorded by Deep Forest and becomes a five million dollar selling album. So it's absolutely the right way to push, but the fact that we don't have a better sense for how to govern across legal jurisdictions ends up being an incredibly difficult problem. In the best case example of that is the struggle between indigenous peoples and Western IP systems. Well, we have five more minutes or we can break it, I'd be happy to talk to anybody individually. Any more questions? Yes. You had mentioned just briefly that commons can fail and it seems like you've come across any of these failure modes. What can you tell us about the common themes or is the most common failure modes in recent times? Common failure modes. I haven't developed that. I mean, I would think it would be the standard of violation of the rules, not having the defensible legal or technological or social boundary around your commons, not having adequate transparency and enforcement for vandals or free riders. Those kinds of classic reasons are why commons fail. But part of what's so fascinating I think about the online world is this kind of fertile robustness of commons is incubating themselves and proliferating and dealing with the theory later. It's not as if the theory is driving, it's that's coming after the fact. Charlie. David, I think of the commons as everything you can reach for free. Without any more definition than that. If I can go on the net and I can get it for free, to me it's like part of the commons. And so what I hear is, and Ethan's comment perfectly describes it as have others, there's these tremendous forces that wanna capture the potential of the commons. And what we're looking for, what you're looking for in a way is the engine that makes the commons itself robust enough to resist that. And yeah. That's precisely. Yeah. And so it has about it, and at least I think of the law as basically the instrument of enclosure. So that for me at least the route to building that robustness is not a matter of litigating. No. The idea that somehow we're gonna persuade people that's the right thing to do when they're somehow gonna do it rather than looking at it as actually the building up of a force. Which has arguably been the political agenda of liberals for so long that they've neglected. Exactly. So to me, an awful lot of it comes down not to this macro question of how do we govern cyberspace or the commons, but you are more interior questions of how do given enterprises build self-sustaining business models on a gift economy? That, thank you for saying that. That's precisely the point. A digital republic of our own. We're not looking to the government. We're not looking to market. And so we're devising our own tools and our own terms. And if the rest of the world ignores us, that's fine. We're building our space. Exactly. So, you know. I would say that might integrate one of these comments about potential size limitations the question about hegemonic domination creating order is that what you're describing it back to your organism metaphor is the commons sounds like it needs to be as you just said, self-defining rather than exteriorly defining so that it's not so much that there's gonna be a fence around it at a varying size. It's that the tools with which the commons creates and by hesitate to say governs but self-organizes and maintains itself are going to define its effective size. And the more you've got tools that allow spontaneous aggregation of numbers to perform or would otherwise be hegemonic duties. The more robust those tools are, the larger the self-sustaining commons is gonna be able to be. So it's more like we need to design the immune system for our commons rather than its metabolism. That's very well put. And you know, I want you to know this is a very useful and educational for me to get this kind of soundings because I grapple with these questions a lot and that was well put about the scale issue was something I've not really thought that much about but I think there's a lot of important things on that issue. Thank you. Thank you.