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It was a close call, but the West Publishing Company almost won
its claim to own the law. Yes, until 1998, the law of the land as set forth
in Brown v. Board of Education, Roe v. Wade, and tens of thousands of other
federal cases actually belonged to a privately held company based in Eagan, Minnesota.
Technically, of course, all of the opinions rendered by the U.S. Supreme Court
and lower federal courts belong to the public domain and can be republished by
anyone. But as a practical matter, West enjoyed a lucrative monopoly control over
the nation's legal rulings because it claimed a copyright on the pagination
of the cases. The only acceptable way for attorneys to cite cases in legal proceedings
has been to use West's proprietary page numbers, which effectively prevented any
potential competitor from arising to offer its own, cheaper version of federal
court rulings.
This
meant that West Publishing had a pretty sweet deal: access to a huge, well-heeled
market, an endless supply of new product financed by taxpayers, the ability to
charge premium prices, and an impregnable wall against competition - in perpetuity!1
For the American people who finance the federal judiciary and must be governed
by its rulings, the situation might be charitably described as a travesty.2
A century ago,
when there was no centralized or comprehensive method for the courts to compile
their rulings, West performed a valuable function in organizing access to the
law and offering minor editorial enhancements. But even before the arrival of
the World Wide Web in the 1990s, a number of critics argued that West's de facto
monopoly ought to be replaced with a uniform citation system that would allow
legal opinions to be more broadly disseminated. After all, if access to our society's
body of law is not available to all, and the official rulings of our judicial
system can be exploited as a cash cow, what then of the moral authority of the
law? It was Franz Kafka, prophet of the legal labyrinth, who admonished that "the
Law...should be accessible to every man and at all times."3
Yet the struggle to wrest public control of the law from the grip of West Publishing
(1998 revenues, $1.3 billion) proved how difficult it is to protect a commons
in our market-dominated society, even when the issue is as utterly central as
the rule of law. Over the decades the U.S. court system had settled into a cozy
partnership with West Publishing. Federal judges and their clerks enjoyed unlimited
access to West's online compilations. They enjoyed the company's help in assuring
the accuracy of final opinions, and the lavish gifts and trips to exotic locales
that West sponsored for federal judges, including at least seven Supreme Court
justices. Politicians from Al Gore to Newt Gingrich to key congressional committee
chairmen also enjoyed warm relationships with West Publishing, thanks to generous
campaign contributions. Such favors were only too helpful in West's attempts to
sneak through stealth amendments to defend its hammerlock on access to the law.
In effect, West was claiming private ownership of the commons, the collectively
owned resources that are fundamental to a democratic commonwealth.
Few
of these facts might have received much visibility to the wider world but for
the activism of James Love, director of the Ralph Nader-founded Taxpayer Assets
Project. In 1993, he began to debunk West's arguments, expose its ethically dubious
lobbying, and mobilize law librarians, bar associations, legal publishers and
the press to take their own initiatives.4 After
years of legal and public relations skirmishes in 1998, a small New York CD publisher,
HyperLaw, successfully challenged in a federal lawsuit West Publishing's copyright
control over court opinions.5 In coming years,
many companies will publish federal cases in various formats, including on the
Web for free. But under pressure from West and Lexis, an online vendor of legal
cases licensed by West, the U.S. federal courts have refused to adopt a public
domain, technology-neutral citation system.6
What is the
Commons?
West Publishing v. The People may be a parable for our times. It is but
one of dozens of cases that pose the question, Who shall control the commons?
In ways that are variously egregious, subtle, clever and obscure, business interests
are gaining ownership and control over dozens of valuable resources that the American
people collectively own. The American commons include tangible assets such as
public forests and minerals, intangible wealth such as copyrights and patents,
critical infrastructure such as the Internet and government research, and cultural
resources such as the broadcast airwaves and public spaces.
We, as citizens, own these commons. They include resources that we have
paid for as taxpayers, and resources that we have inherited from previous generations.
They are not just an inventory of marketable assets, but social institutions and
cultural traditions that define us as Americans and enliven us as human beings.
Public education. Community institutions. Democratic values. Wildlife and national
forests. Public spaces in cities and communications media.
Astonishingly, Americans are losing the right to control dozens of such commons
that they own. While business and technology tend to be the forces animating this
silent theft, as we shall see, our government is complicit in not adequately protecting
the commons on our behalf. When it is not being seduced by what has been called
the legalized bribery of campaign contributions, politicians may gamely try to
defend our common assets, and occasionally succeed. But even well-meaning government
leaders are often overwhelmed by the pace of technological change and the complications
of consensus-building and due process. The public, for its part, is often clueless
and thus politically moot in many battles over the commons. (Throughout, I will
use the collective noun "commons" instead of the more archaic term "common.")
This trend raises
serious questions about the future of our American commonwealth. In an age of
market triumphalism and economistic thinking, does the notion of "commonwealth"
- that we are a people with shared values and control over collectively owned
assets - have any practical meaning? Or have we lost sight of our heritage as
a commonwealth and lost control of our assets, and perhaps our democratic traditions,
as private interests have quietly seized the American commons?
Business, let it be said, is no more a villain than a lion whose metabolism needs
gazelles. Companies are in the business of maximizing competitive performance
in the market, and use of the commons simply represents an available resource,
and frequently a path of least resistance. That is why fortifying the commons
is not equivalent to bashing the market, which clearly generates many important
benefits for our society.
It should be stressed that protecting the commons is about maintaining a balance,
not bashing business. It is self-evident that we need markets. It is far less
clear -- particularly to businesses operating within markets -- that we also need
commons. A society in which every transaction must be mediated by the market,
in which everything is privately owned and strictly controlled, will come
to resemble a medieval society -- a world of balkanized fiefdoms in which every
minor satrap demands tribute for the right to cross his land or ford his streams.
The flow of commerce and ideas -- and the sustainability of innovation and democratic
culture - will be seriously impeded. Furthermore, such a market-dominated society
is not likely to cultivate the sense of trust and shared commitments that any
functioning society must have.
So the issue is not market versus commons. The issue is how to set equitable and
appropriate boundaries between the two realms - semi-permeable membranes --so
that the market and the commons can each retain its integrity while invigorating
the other. That equilibrium is now out of balance as businesses try to exploit
all available resources, including those that everyone owns and uses in common.
Of course, the
creative tension between business interests and our democratic polity is nothing
new.7 It may be one of the central organizing
principles of our political culture. Clashes between the two have shaped the very
framing of the Constitution, numerous Progressive era campaigns, the labor movement,
and many New Deal and Great Society initiatives. But today we live in a troubling
new stage of this struggle that differs in scope and ferocity from previous ones.
The
market's role in American society has exploded. It now penetrates into nooks and
crannies of daily life that could not have been imagined in an earlier generation.
Video ads at gas pumps, marketing disguised as education in the public schools,
and Broadway theaters named after airlines. Companies now obtain patents on genetic
structures of life and on mathematical algorithms, and universities urge their
students to consider themselves "the President of Me, Inc."
The
floodgates of commercialization of the culture really opened up in the 1980s as
powerful new electronic technologies - computers, cable television, the VCR, new
telecommunications systems, and others - began to take root. Businesses began
to penetrate more deeply into nature, knit together new global markets, and colonize
our consciousness and public culture. As the government agencies that set socially
acceptable boundaries for market activity were slowly sabotaged by budget cuts
and curbs on their authority, a wide array of commons in American life became
open game for market exploitation: public lands, government R&D, information
resources, and ethical norms for safety, health and environmental protection.
Still, the privatization
of the commons has crept up slowly and quietly, in fits and starts. It has not
been an identifiable juggernaut with a single battlefront or defining moment.
It has had scores of manifestations, some prominent, most of them obscure. Which
helps explain the wicked insight of the nursery rhyme. Why do we "hang the
man and flog the woman/That steal the goose from off the common,/But let the greater
villain lose/That steals the common from the goose"? Because, I fear, we
no longer see the commons, and thus no longer understand its meaning.
Stealing
the Commons from the Goose
The nursery rhyme comes from the period of the English enclosure movement, which
flourished at various points from the fifteenth to nineteenth centuries. In order
to exploit emerging markets and aggrandize their power, the feudal aristocracy
prevailed upon Parliament to allow the ruthless seizure of millions of acres of
commonly used forests, meadows and game. As economic historians such as Karl Polanyi
have shown, enclosure helped lead to the creation of modern industrial markets
while inflicting devastating social, environmental and human costs on once-stable
rural communities.
With
similar dynamics today, many business sectors are finding it irresistible to enclose
common resources that were once commonly shared. If the mineral resources on federal
lands can be mined for $5 an acre under an archaic 1872 law, a lucrative windfall
that the mining industry can preserve through well-deployed campaign contributions,
why not? If commonly used agricultural seedlines can be genetically re-engineered
to be sterile, rendering them artificially scarce and thus suitable for market
control, why not? If new software technologies can lock up information
that was once readily available to all, and if information vendors can convince
Congress to allow compilations of facts to be owned through copyright law,
why not?
It
is no wonder that businesses find exploitation of the commons so easy and attractive.
Most common resources are largely unrecognized by the American people as common
resources. Not surprisingly, they have few legal protections or institutional
defenders.
Such
enclosures of the commons are aided by a Washington officialdom increasingly captive
to business and indifferent to ordinary citizens; a journalism profession that
has grown soft now that it competes with entertainment and marketing; and the
dominion of market culture over our civic identities. We have become a nation
of eager consumers -- and disengaged citizens -- and so are ill-equipped even
to perceive how our common resources are being abused.
The abuse goes unnoticed as well because the theft of the commons is generally
seen in glimpses, not in panorama, when it is visible at all. We may occasionally
see a former wetlands paved over with a new subdivision, or acres of tree stumps
on federal lands that timber companies leased for a pittance. If we listen closely
through the cacophony of the media, we may hear about the breakthrough cancer
drugs that our tax dollars helped developed, the rights to which pharmaceutical
companies acquired for a song and for which they now charge exorbitant prices.
It is not easy to connect the dots among these complicated, seemingly unrelated
events and recognize the larger pattern of enclosure.
The
truth is, we are living in the midst of a massive business-led enclosure movement
that hides itself in plain sight. Government R&D laid the groundwork for some
of the most significant innovations in computing - the original Internet architecture
and protocols, e-mail, the Mosaic software that gave rise to the Netscape browser,
among others -- but these investments have essentially been privatized and recast
as the singular product of entrepreneurial vision. Our government has given commercial
broadcasters large portions of the public's electromagnetic spectrum worth tens
of billions of dollars, in return for token gestures of public service. The public
domain in intellectual property - the information and creative expression that
everyone must draw upon to make anything new -- is rapidly being carved up by
proprietary interests through radical extensions of copyright and patent law.
Some invasions
of the commons, while quite egregious, are sanctioned because we no longer can
muster a spirited commitment to the public sector. Hence the widespread acquiescence
to Channel One, a pseudo-educational TV news program whose advertisements are
forced upon millions of children in public schools every morning. Hence the naming
of beloved sports stadia after corporate sponsors who have few valid claims to
our civic respect beyond the payment of sponsorship fees. Sports itself, while
always a business endeavor, has been radically transformed as companies such as
Nike successfully market themselves as sources of transcendent meaning.
What
makes this moment so different from many earlier ones in our history is the gross
imbalance between the market and our democratic polity. The market and its values
assert dominion over all, and in so doing, erode the sinews of community, undermine
open scientific inquiry, weaken democratic culture, and sap the long-term vitality
of the economy. If we are to arrest this trend, I believe we must begin to develop
a new language of the commons. We must recover an ethos of commonwealth
in the face of a market ethic that knows few bounds. This not only means reasserting
democratic control over the "common wealth" - the vast array of publicly
owned resources and traditions of social cooperation that constitute a vast reservoir
of wealth. It means recognizing the intrinsic importance of the commons as a sovereign
realm whose integrity and subtle fecundity must be respected.
Honoring
the common is not a matter of moral exhortation. It is a practical necessity.
This book aspires to explain why.
The
Effects of Market Enclosure
The
increasing pace of market exploitation of the commons is troubling for five reasons.
First, enclosure
needlessly siphons hundreds of billions of dollars away from the public purse
every year that could be used for countless varieties of social investment, environmental
protection, and other public initiatives. The public's assets and revenue streams
are privatized, with only fractional benefits accruing to the public in return.
Second, enclosure
tends to foster market concentration, reduce competition and raise consumer prices.
The power to enclose generally belongs to the largest companies, which have the
market clout and political influence to acquire public resources on favorable
terms. These gains are often leveraged by industry leaders, in turn, to extend
their market dominance even further. Large ranchers are the heaviest users of
federal grazing lands, for example. Biotechnology firms use proprietary seeds
to dominate the market for a given crop. Pharmaceutical companies use federally
sponsored drug research to gain control over specific drug treatment markets.
Third,
enclosure threatens the environment by favoring short-term exploitation over long-term
stewardship. The family result is greater pollution of the earth, the air, and
the water. Leading companies find it strategically useful to displace health and
safety risks onto the public, or shift them to future generations. The flagrant
abuses of public lands by timber, mining and agribusiness companies are prime
examples.
Fourth,
enclosure can also impose new limits on citizen rights and public accountability,
as private decisionmaking supplants the open procedures of our democratic polity.
Consider the privatization of Internet governance, through the creation of ICANN,
the Internet Corporation for Assigned Names and Numbers. Instead of a democratic
process of open standards, openly arrived at through public participation, a quasi-private
replica of democratic governance was invented to manage domain names in the interest
of commercial users. Large companies have also learned that they can freeze out
democratic and market accountability by using sophisticated proprietary technologies.
Microsoft's Windows operating system and Monsanto's bioengineered foods are two
cases where companies have used exceedingly complicated technologies to confound
democratic oversight and effectively prevent consumer choice.
And,
fifth, enclosure frequently imposes market values in realms that should be free
from commodification. The character of community values, family life, public institutions
and democratic processes should not be blindly dictated by the market. Yet that
is the effect when public schools sell their captive audience of youngsters to
junk food vendors; the Smithsonian Institution lets corporate donors determine
the content of its museum exhibits; and cost-benefit equations are used to dictate
acceptable levels of contaminants in food. The problem, too often, is that economic
gains tend to be measurable and culturally esteemed (Gross National Product, rising
quarterly profits), while the larger societal impacts are fuzzy and diffuse (community
dislocations, ecological stress, public health risks). There are no simple yardsticks,
no "bottom lines," for evaluating the pernicious effects of market enclosures.
This naturally makes it easy to ignore them or dissociate them from market activity.8
Reclaiming
the Commons
Developing
a discourse of the commons - the burden of this book - is especially important
at a time when Americans are beginning to believe that we have little in common
and can accomplish little when we work together. Talking about the commonwealth
reminds Americans of the things we share: the forests and minerals that we all
own, the miraculous technologies that we all have helped finance; and the values
- belief in equal opportunity, say, and due process of law - that we share.
A
reckoning of what belongs to the American people is a first step to recovering
control of common assets and using them either to generate new revenues for public
purposes or to protect them from market exploitation. At a time when the public
purse is raided for all manner of "corporate welfare," an analysis based
on the "common wealth" offers some powerful ways to leverage assets
that we the American people already own.9
Talking about the American commons has important strategic value too. It helps
reassert public control over public resources without necessarily triggering the
familiar dichotomy of the free market ("good") versus regulation ("bad").
Too often, attacks on regulatory shortcomings have been used to justify a return
to the era when business wasn't regulated at all. Talking about the commons can
help the American public identify both its distinct interests as well as policy
options that include, but go beyond, traditional regulation. As we will see in
Chapter 13, the commons can be preserved through stakeholder regimes that give
citizens equity ownership, government auctions of the right to use common assets,
new extensions of legal principles such as public trust doctrine (environmental
law) and the public domain (copyright law), and Internet vehicles that enable
collaboration.
Finally, the idea of the commons helps us identify and describe the common values
that lie beyond the marketplace. We can begin to develop a more textured appreciation
for the importance of civic commitment, democratic norms, social equity, cultural
and aesthetic concerns, and ecological needs. They need no longer be patronized
as anecdotal and subjective, misconstrued through bizarre economic theories that
purport to monetize human pleasure ("hedonics") or human choice ("contingent
value"). The idea of the commons helps us restore to the center stage a whole
range of social and ecological phenomena that market economics regards as sideshows
- "externalities" - to the marquee events of the marketplace, economic
exchange. A language of the commons also serves to restore humanistic, democratic
concerns to their proper place in public policymaking. It insists that citizenship
trumps ownership, that the democratic tradition be given an equal or superior
footing vis-a-vis the economic categories of the market.
This
is not just a moral argument, but also an intensely pragmatic one. Any sort of
creative endeavor - which is to say, progress - requires an open "white space"
in which experimentation and new construction can take place. There must be the
freedom to try new things. There must be an unregimented work space in
which to imagine, tinker and execute new ideas. When all the white space is claimed
and tightly controlled through commercial regimes that impose quantitative indices
and quarterly profit goals, and that insist upon propertization and control of
all activity, creativity is bureaucratized into narrow paths. There simply is
no room for the visionary ideas, the accidental discoveries, the serendipitous
encounters, the embryonic notions that might germinate into real breakthroughs,
if only they had the space to grow. An argument for the commons, then, is an argument
for more "white space."
*
* *
The story
of the myriad commons in our midst - and their relentless enclosure - traverses
a wide terrain of subject matter. We will start by examining some basic ideas
that will recur throughout - the notion of the commons as a counterpoint to the
market, the workings of the gift economy and the dynamics of market enclosure
(Part I). These concepts offer a fresh, insightful way of understanding the market's
role in a range of disparate arenas: the exploitation of nature, the abuse of
federal lands, the privatization of the Internet, the over-marketization of knowledge
and creative expression, the corporatization of academic research, the giveaway
of the public airwaves, and the commercialization of public spaces and institutions
(Part II).
An
inevitable question, after traversing this gauntlet of disturbing enclosures,
is whether anything useful can be done. What larger conclusions about the commons
might we make, and how might the commons be reclaimed? How might we invent the
commons we need for the 21st Century?
Perhaps
the preeminent lessons is that a commons need not result in a "tragedy."
Through the right structures, a commons can use social and democratic means to
manage a resource effectively. Indeed, certain commons, particularly in the Internet
milieu, can even produce a cornucopia of shared wealth. The robust, innovative
character of many commons stems from a key strength - the diversity and social
equity of participants in a commons. Also, when "ownership" of resources
in a commons is not alienated, but controlled by a stable, defined community,
environmental sustainability and democratic accountability are more easily achieved.
What, then, can
be done to preserve and fortify the commons?
The
answer varies, of course, from one resource domain to another, and one community
of interest to another. But here are some of the more useful initiatives (explored
in Part III) that could be taken:
