The Commons Law Perspective, Open Hardware and Digital DIY
On October 1st I had an interview with David Bollier. Given his decade long work on the commons, as researcher and activist, author of books like Viral Spiral and in particular his work on Laws and the Commons, I thought that his perspective would be meaningful for our research in the DiDIY project. In particular for our work on rights and responsibilities, but also more in general to the various workpackages that make up the project.
Bollier’s previous work on law for the commons was his book Green Governance (2013), co-authored with Burns Weston, professor of Law at the University of Iowa, on theCommons Law Project. More recently, Bollier wrote a memo “Reinventing Law for the Commons.”
That memo starts «Although it is customary for mainstream economists and politicians to consider the commons a failed management regime – the “tragedy of the commons” – it is in fact a pervasive and highly generative system for meeting people’s needs. More: commons tend to function in more culturally satisfying, ecologically responsible ways, which is more than can be said for conventional markets and government systems.«
In the context of the DiDIY project we're exploring the legal and ethical challenges, among other dimensions, to see how these challenges could best be addressed. In particular because the rise of low-cost digital fabrication technologies and microelectronics have made it possible for people to engage in small scale (as small as 1) production of advanced goods and solutions connected to the Internet. As this new world is unfolding, we are witnessing many of the legal foundations based on technologies from years or centuries ago are being challenged. In short new legal foundations might benefit from a commons perspective.
And let's be honest, taking the commons perspective isn't very strange. The paradigm of the commons, and its governance models, are in the elevator again, after centuries of repression and oblivion. Elinor Ostrom won the Nobel Prize in economics in 2009 for her lifelong research on the commons; the Internet is based on open standard protocols that are governed as a commons, while the Encyclopedia Brittanica stopped the presses in 2012, opening the way for the commons-based Wikipedia. And let's not forget the Free Software movement (a.k.a. Open Source) that has been growing steadily over the last 30 years, so much that there's hardly any computer user that doesn't use any piece of it.
Also the rise of 3D printing was spurred when in 2005 the first issued patent of fused filament printing expired, and in particular because of a project called RepRap, a project that started sharing its design files and instructions under a free license. Something we can now call Open Source Hardware, which forms part of the digital commons. When we talk about low-cost digital fabrication technologies and microelectronics, RepRap and Arduino are one of the first examples that come to mind, both of which use commons governance models and free licenses.
As a matter of fact in the Knowledge Framework that we're developing at the DiDIY project, to define what Digital DIY really is, the sharing of knowledge is considered foundational for what Digital DIY really is about. And we acknowledge that while not all Digital DIYnecessarily has to be adhere to open source principles, it certainly is often the case.
The questions that we have refer to what norms can we develop to address the challenges. Activities like engaging in self-repair may challenge various exclusive rights like patents. We agree that fair use exemptions may apply and we might need to reclaim the right to repair (see my post here). But however intuitive this claim, it doesn't really solve the bigger question of protecting the commons – in this case the hardware design commons.
Says David: «I have found that one of the biggest problems in "digital law" is "jumping the tracks" of the conventional policy discourse -- a move that is essential in developing a richer commons-based orientation and logic. It is a difficult task because mainstream policy considers its categories of discussion to be self-evident and non-controversial (as it quietly limits the scope of debate). Commoning, collective "property" and "social norms as law," are generally "incomprehensible" to the guardians of state law, which is not an accident. State law wants to focus on individual property rights, market exchange and state regulatory authority -- and not a reformulation of governance and individual sovereignty.
To develop a functional commons law therefore requires one to "go meta" -- to step outside of the existing foundational structures and discourse, and to develop a different language and even ask "what is law?"
I think that we commoners -- free culture, open design, open source hackers and countless others -- need to self-consciously imagine and assert a new body of "law" that is based not only on conventional state law but also on social norms and architectures of code. In short, a new typology of law itself. (Old-style law will never make an adequate account of the fluid, informal and dynamic social "rules" that any community will negotiate and embrace as its unwritten ethic.) «
While the digital commons uses a smart hack - of copyright-based licenses that enable the sharing based on exclusive copyrights, such as the copyleft GPL – David expresses also criticism on the libertarian position of many of the free/open leaders. «Here is where the commons discourse may help sharpen the implications of the two worlds -- e.g., libertarian freedom tends to devolve into capitalist centralization and consolidation, as we've seen on the Internet; commoning tends to enshrine a more durable form of "freedom." Can commoners put forth a strong counter-narrative along these lines?»
David presents in his memo about 60 projects that illustrate the infraestructure and organisational prototypes that are being formed to lay the foundations of such new commons oriented society. The examples are set forth in a wiki at the Commons Transition Plan website. We discuss some of the more important ones.
Online collaborative communities
Digital platforms are also incubating some innovative new organizational forms. One of the
most intriguing is the Open Value Network (OVN), which has been described as an “operating system for a new kind of organization” and a “pilot project for the new economy.” OVNs consist of digital platforms that facilitate new modes of open, decentralized and self-organized social governance, production and livelihoods.
Two of the leading OVN projects, Sensorica and Enspiral, are organized in ways that let anyone to contribute to the project, and be rewarded based on their contributions, as measured by actual contributions, experience and other collectively determined criteria.
Unlike “conventional commons” that tend to eschew market-based activity, open value networks have no reservations about engaging with markets; OVNs simply wish to maintain their organizational and cultural integrity as commons-based peer producers. This means open, horizontal and large-scale cooperation and coordination; responsible stewardship of the shared wealth and assets while allowing individual access, use, authorship and ownership of resources “where appropriate”; careful accounting of individual “inputs and outcomes” via a common ledger system; and the distribution of fair rewards based on individual contributions to the project.
Some notable keywords for describing OVNs: equipotentiality, anti-credentialism, self-selection, communal validation and holoptism.
Sensori.ca is in particular an interesting case for DiDIY, as it's community/business performs research and development of open source hardware in sensor systems.
Sometimes the convergence is new territory to both parties: digital commons trying to protect their shared resources are starting to engage with the co-operative movement in trying to develop new organizational models for cooperatives – “open co-operatives.” One example is the «omni-commons» network of the Cooperative Integral Catalana (CIC), which sees itself as a strategic
intermediary for commoners in dealing with state taxes and regulations and with complex legal and bureaucratic issues. CIC also provides financial support to such enterprises. Some CIC members and other partners are now launching FairCoop and FairCoin in an audacious attempt to invent a new global financial system. Las Indias, rooted in the Basque Country is another example, which has a guild-like structure producing digital commons, allowing new members to work in their network of cooperatives after an initial acquaintance period.
Michel Bauwens, the Belgian peer-to-peer theorist and co-founder of the Foundation for P2P Alternatives, who partners with Bollier in the Commons Strategy Group, has built a strategic alliance with CIC and FairCoop. Bauwens considers crucial the building up of political and economic structures that empower people to make a living participating in the commons (see video interview).
Blockchain based distributed applications
Blockchain technologies such as pioneered by Bitcoin are now laying the foundations for really decentralised network based infraestructures. «Although Bitcoin itself has been designed to serve familiar capitalist functions (tax avoidance, private accumulation through speculation), the blockchain ledger is significant because it can enable highly reliable, versatile forms of collective action on open networks.» French-Italian researcher Primavera Di Filippi is investigating the concept of "governance-by-design" as it relates to online distributed architectures at Harvard Law School. One of her interests is a project called Ethereum. This is a blockchain based distributed platform, run by its peers, on top of which one can run distributed applications, SmartContracts and more. When it was crowdfunded in 2014 I was among the first to participate in its so called «genesis sale», precisely because the interesting new opportunities – and challenges – it promises to bring. By taking out intermediaries and trusted third parties it promises to unleash so much value.
One of the new concepts is Smart Contracts which are coded and computer executed contracts. According to the agreed smart contract, when certain conditions are met, it will execute the agreed-upon actions, for example, pay the agreed-upon amount when a product is handed over to the buyer, upon confirmation by the shipping company. Middlemen like eBay could be bypassed through this so called «trustless» technology – because of the decentralised blockchain. A more interesting example is cited by David. «Former FCC Chairman Reed Hundt has proposed using blockchain technology to create distributed networks of solar power on residential houses coordinated as commons. The ledger would keep track of how much energy a given homeowner generates and shares with others, and consumes. In effect the system would enable the efficient organization of decentralized solar grids and a “green currency” that could serve as a medium of exchange within solar microgrids or networks, helping to propel adoption of solar panels.»1 Also electronic voting could be done in a safe and auditable way, on top of such distributed ledger.
A recently released report suggests that blockchain technology could provide a critical infrastructure for building what are called “distributed collaborative organizations” (sometimes “distributed autonomous organizations”). These are essentially self-organized online commons. A DCO could use blockchain technology to give its members specified rights within the organization, which could be managed and guaranteed by the blockchain. This set of rights, in turn, can be linked to the conventional legal system to make those rights legally cognizable.»
Commons based licenses
The free licenses as pioneered by the Free Software movement, flipping «all rights reserved» into «all rights reversed», based on current copyright legislation have been used in virtually all domains of knowledge by now. From software, to data, content of all forms, learning materials, hardware designs and diagrams etc. Typically free/open licenses guarantee the existence of four freedoms, 1) to use for any purpose, 2) to study how it works and adapt it to your needs, 3) to copy and share, and 4) to distribute modified versions. These licenses are arguably the basis for the commons governance in collaborative peer production communities generating their commons resources.
However, as David points out, we have seen how major companies, from IBM to Google and Facebook simply exploit these digital commons to have free of charge resources to make their corporate controlled platforms more valuable. Bauwens and the P2P Foundation consider that the commoners don't protect their self-built resources well enough and have been working on so called «commons reciprocity licenses». Dimitry Kleiner introduced in an essay published in 2007 the first of this kind of license, the CopyFarLeft, which basically intends to protect the commons from market appropriation by non-commoners. In short, it is a modified CC BY-NC-SA license that allows commercial usage only when 1) You may exercise the rights granted in Section 3 for commercial purposes only if:
you are a worker-owned business or worker-owned collective; and
all financial gain, surplus, profits and benefits produced by the business or collective are distributed among the worker-owners
I remember that when FKI co-organised the Free Culture Forum in 2009 we debated with Kleiner the possible implications of such license. The Free Software and the Free Culture movements have not adopted the suggested license, probably because a large part of their constituency are not «worker-owners» clause and therefore they would fall out of that commons.
Kleiner and Bauwens worked together to draft a next version, the Peer Production License (PPL). This kind of licenses makes sense for worker-owner collectives willing to produce digital commons, where there is no need to be compatible with existing types of free/open digital commons, such as Wikipedia. Otherwise license incompatibility will occur, which can only be solved if there is political will inside the communities to change license conditions. Remember that Wikipedia was initially licensed under the GNU FDL, and only after the FSF changed the FDL's conditions through a new version, could the Wikipedia be double licensed also under the CC BY SA license.
A Commons Based Reciprocity License (CBRL) could be an instrument for designers and developers to share their works while assuring commercial rights for the community. It can work on a small scale. But in order to avoid incompatibilities, I would argue, that it could work on a much bigger scale, once global communities have global economic structures, such as the open cooperatives like FairCoop is setting up. Then commercial benefits could be divided among the participating members according to the formulas used by an Open Value Network. Then I can foresee viral effects taking place as we have seen in the usual copyleft licenses underpinning large parts of the Free Software ecosystem.
Network effect and Antitrust legislation
«Many have observed», says David, «that digital networks are subject to the so-called "power law", in which a handful of players dominate a given online-space» In other words, the network effect applies. With the increase of the number of users or nodes in the network, the value created rises exponentially. This feature explains why most people still use a particular kind of Office suite on their PCs, not because it's the best or has an especially high value for money compared to other Free Software variants. This is also the reason why the EC brought a case against Microsoft for its dominant position and finally ordered it to offer its operating system without Windows Mediaplayer (so-called unbundling), making server protocol information available and imposing several fines totalling 1.637 million Euro. EC Commissioner Neelie Kroes stated: «The Commission must do its part.....It must not rely on one vendor, it must not accept closed standards, and it must refuse to become locked into a particular technology – jeopardizing maintenance of full control over the information in its possession».
What can be inferred from this example is that the network effects in digital networks can facilitate first movers to dominate a market against the interest of the public. Antitrust or competition laws can and should be helpful in restoring the market. We should observe that digital networks of an open nature, using Open Standards and Free Software don't have this problem, as any party can participate in the market on equal conditions (notice the Internet Protocols, that can be implemented by anyone). David suggests that new types of antitrust legal doctrines should be developed to, for example, convert dominant platforms into a public utility. Facebook could be a candidate for that, possibly Twitter and many others. Possibly this is an idea we should keep in mind for the Internet of Things, where many proprietary standards are evolving that have the potential to stiffle competition and diversified innovation. We can then imagine that antitrust legislation might be used to force owners of dominant protocols to standardise them as Open Standards, leveling the playing field for any actor.
Unconditional Basic Income
While more and more people engage in contributing to the digital commons and access to knowledge in general is exponentially rising, this doesn't necessarily generate an income for them. Sure, participants in the Free Software ecosystem have shown that they can make a living providing value added services in the market (such as training, consultancy, custom-made development etc). But Wikipedians don't typically have that possibility. Additionally, when technological innovations make production more efficient, less labour is needed, and more unemployment results. Basic Income schemes are one of the ways to solve this and are experimented with in a growing number of places.
As an American, David is envious of Europe for its initiatives in this area. However, the first example is the Alaska Permanent Fund, a state-chartered trust that is authorized to collect, manage and distribute revenues from oil drilled on state land, on behalf of Alaska residents. Each household gets a dividend of between $1,000 to $2,000 per year from corporations that extract oil on Alaska state lands. It is still unclear what the best way forward will be, to organise this at the local level, nationally, globally, by the state or by communities and where exactly the funds for such dividend could come from. Therefore it is interesting to see various different models being experimented with these days. Rather different is the openUDC project (UDC stands for Universal Dividend Currency), which generates an equal monthly dividend for each member from a slow increase of the monetary mass.
We may conclude that our society is in transformation on virtually all fronts. New ways of producing value come with new organisational models and need a new social contract, new structures of norms and new laws. While David focuses more at the social side, a person like Jeremy Rifkin reaches similar conclusions from economic analysis. Rifkin argues in his latest book, The Zero Marginal Cost Society that people and things will be connected in one global Internet of Things, driving marginal costs down to zero, and spawning a hybrid economy partially capitalist, partially commons. Therefore commons laws will become more important, on the one hand based in community norms and governance systems and on the other, creative hacks of law synchronised with the existing legal system.
I'll have to stop here for now, but recommend anyone to read David Bollier's memo "Reinventing Law for the Commons."
1Reed E. Hundt, Jeffrey Schub and Joseph R. Schottenfeld, “Green Coins: Using Digital Currency to Build the New Power Platform,” in Clippinger and Bollier, From Bitcoin to Burning Man and
Beyond , available at https://idcubed.org/chapter-10-green-coins-using-digital-currency-build-new-power-platform.