David Bollier's blog

The latest issue of Boston Review has a lively forum on the growing power of network-based businesses such as Amazon, Uber and Airbnb.  These companies may not be monopolies in the strict conventional sense of the law, but they nonetheless use their market dominance and network platforms to extract all sorts of advantages from competitors, suppliers and consumers. 

K. Sabeel Rahman, a professor at Brooklyn Law School, presented his assessment of the situation, and then nine people of various persuasions (including me) responded.  Rahman stated the problem succinctly:

The kinds of power that Amazon, Comcast and companies such as Airbnb and Uber possess can’t be seen or tackled via conventional antitrust regulations.  These companies are not, strictly speaking, monopolies; Urban and Airbnb, in particular, do not engage in the kind of price-fixing or market dominance that is the usual target of antitrust regulation today.  These companies are better understood as platforms or utilities:  they provide a core, infrastructural service upon which other firms, individuals and social groups depend.

The problem is that conventional antitrust regulation isn’t really equipped to deal with information economy platforms, which tend to connect buyer and sellers in more efficient ways while offering very low prices. What’s the problem with that? Well, the problem is open networks paradoxically result in "power law" outcomes in which a minority of players tend to dominate the universe of users. Some companies have used this network-based advantage to limit competitors' access to the market, impose unfair conditions on consumers or producers, and evade consumer and labor-rights laws. 

Rahman calls for a re-purposing of Progressive era policies from a century ago that tamed large monopolies like railroads by subjecting them to public utility regulation. Is this the way to go? Juliet Schor of Boston College agrees that there is a problem, but considers the regulatory approach nostalgic and unimaginative. She argued: 

“Peer-to-peer structure and peer ownership of capital undermine the argument for private ownership of platforms and, by extension, for the public utility model.  This is not to say there isn’t a strong public interest in this sector – there is.  But the compelling feature of these entities is that most of the value in the market is produced by the peers, not the platforms.  This suggests that platforms can and should be owned and governed by users.  If they are, we can worry less about rent extraction, concentrations of political power, and the other concerns Rahman raises.”

In the 1990s, many communities in central Oregon were torn asunder by the “War of the Woods.” Environmentalists had brought lawsuits against the U.S. Forest Service for violating its own governing statutes. For decades, timber companies had been allowed to clear-cut public forests, re-seed with tree monocultures, and build ecologically harmful roads on mountain landscapes.

Environmentalists won their lawsuit in 1991 when a federal judge issued an injunction that in effect shut down timber operations in the Pacific Northwest of the US. While the endangered northern spotted owl was the focus of much of the debate, the health of the entire ecosystem was at risk, including the Pacific salmon, which swim upstream to spawn. 

There is often no substitute for litigation and government mandates, and the 1991 litigation was clearly needed.  But what is really interesting is the aftermath:  Rather than just designating the forest as a wilderness preserve off-limits to everyone, the Forest Service instigated a remarkable experiment in collaborative governance. 

Instead of relying on the standard regime of bureaucratic process driven by congressional politics, industry lobbying and divisive public posturing, the various stakeholders in the region formed a “watershed council” to manage the Siuslaw National Forest. Twenty years later, this process of open commoning has produced a significant restoration of the forest ecosystems, implicitly indicting the previous forest management regime driven by politics and the formal legal system.

This story is told in a wonderful thirty-minute film documentary, “Seeing the Forest,” produced by writer and filmmaker Alan Honick, with support from Forest Service Employees for Environmental Ethics.  Honick writes how the public lands in Oregon contained most of the remaining old growth forests outside of protected parks:

These were complex and ancient ecosystems, particularly on the west side of the Cascades, where the moisture from Pacific storms gave rise to rich and diverse temperate rainforests. Hundreds of species of animals and plants depended on this habitat to survive.

For 40 years, these forests were logged with the same industrial methods practiced on private land. Vast swaths were clearcut, then densely replanted with monocultures of the fastest growing trees. When they reached sufficient size, they were scheduled to be clearcut and replanted again, in an ongoing cycle considered sustainable by those who employed it.

The aftermath of the 1991 litigation could have been simmering hostility and litigation, which would likely flare up again.  It was based on the old, familiar narrative of “jobs vs. the environment,” a debate that government was supposed to mediate and resolve. 

In Oregon, however, it was decided to develop a “Northwest Forest Plan” that inaugurated a new space and shared narrative.  The Siuslaw Watershed Council invited anyone with an interest in the forest to attend its open, roundtable meetings, to discuss how to manage the forest and resolve or mitigate the competing interests of timber companies, environmentalists, recreational fishers, local communities, hikers, and others.  Outcomes were based on consensus agreement.

I recently encountered a brilliant new essay by German writer Ina Praetorius that revisits the feminist theme of “care work,” re-casting it onto a much larger philosophical canvas. “The Care-Centered Economy:  Rediscovering what has been taken for granted” suggests how the idea of “care” could be used to imagine new structural terms for the entire economy. 

By identifying “care” as an essential category of value-creation, Praetorius opens up a fresh, wider frame for how we should talk about a new economic order.  We can begin to see how care work is linked to other non-market realms that create value -- such as commons, gifts of nature and colonized peoples --all of which are vulnerable to market enclosure.

The basic problem today is that capitalist markets and economics routinely ignore the “care economy” -- the world of household life and social conviviality may be essential for a stable, sane, rewarding life.  Economics regards these things as essentially free, self-replenishing resources that exist outside of the market realm.  It sees them as “pre-economic” or “non-economic” resources, which therefore don’t have any standing at all.  They can be ignored or exploited at will.

In this sense, the victimization of women in doing care work is remarkably akin to the victimization suffered by commoners, colonized persons and nature.  They all generate important non-market value that capitalists depend on – yet market economics refuses to recognize this value.  It is no surprise that market enclosures of care work and commons proliferate.

A 1980 report by the UN stated the situation with savage clarity:  “Women represent 50 percent of the world adult population and one third of the official labor force, they perform nearly two thirds of all working hours, receive only one tenth of the world income and own less than 1 percent of world property.”

Not so long ago, the language of “intellectual property” (IP) was the only serious way of talking about creative works and inventions.  Copyright and patents provided the default framework for explaining how someone’s bright idea grew into a marketable product, and how that in turn contributed to economic growth and human progress. It was a neat, tidy, reassuring story.  It had an irresistible simplicity – and the endorsement of the ultimate authority, government.

And then…. the pluriversal realities of life came storming the citadel gates!  Over the past fifteen or twenty years, the monoculture narrative of IP has been attacked by indigenous cultures, seed activists, healthcare experts, advocates for the poor, the academy, and especially users of digital technologies.  It has become increasingly clear that the standard IP story, whatever its merits on a smaller scale, in competitive industries, is mostly a self-serving, protectionist weapon in the hands of Hollywood, record labels, book publishers, Big Pharma and other multinational IP industries. 

We can thank the authors of a new anthology for helping to explain how the standard IP narrative is profoundly flawed, and how an array of challengers are showing how knowledge-creation so often emerges through social commons.

Free Knowledge:  Confronting the Commodification of Human Discovery, edited by Patricia W. Elliott and Daryl H. Hepting, provides a refreshing survey of the many realms in which corporations are enclosing shared knowledge -- and a sampling of commons that are democratizing the production and control of knowledge. (The book is published by University of Regina Press, and is licensed under a Creative Commons BY-NC-ND license.)

Better, Not More -- aka Buen Vivir

Here is an inspiring five-minute video about the quest for a new post-growth economic system.  "Better, Not More," was produced by Kontent Films for the Edge Funders Alliance, and was released last week at a conference in Baltimore. The video is a beautiful set of statements from activists around the world describing what they aspire to achieve, especially by way of commons.

The vocabularies and focus for the idea of "better, not more," obviously differ among people in one country to another. Buen vivir is the term that is more familiar to the peoples of Latin America, for example. But as the growth economy continues its assault on the planetary ecosystem, cultivating an ethic of sufficiency -- and developing the policies and politics to make that real -- is an urgent challenge.

The Catalan Integral Cooperative (CIC, pronounced “seek”) is surely one of the more audacious commons-based innovations to have emerged in the past five years.  It is notable for providing a legal and financial superstructure that is helping to support a wide variety of smaller self-organized commons.  Some of us are calling this proto-form an “omni-commons,” inspired by the example of the Omni Commons in Oakland.

CIC is smart, resourceful, socially committed and politically sophisticated.  It has bravely criticized the Spanish government’s behavior in the aftermath of the 2008 financial crisis, which has included massive bank bailouts, foreclosures on millions of homes, draconian cutbacks in social services, a lack of transparency in policymaking.  CIC regards all of this as evidence that the state is no longer willing to honor its social contract with citizens.  Accordingly, it has called for civil disobedience to unjust laws and is doing everything it can to establish its own social order with a more humane logic and ethic.

Journalist Nathan Schneider provides a fascinating, well-reported profile of CIC in the April issue of Vice magazine. The piece focuses heavily on the role of the visionary activist Enric Duran, who in 2008 borrowed $500,000 from banks, and then he gave the money away to various activist projects. Despite being on the run from Spanish prosecutors, Duran went on to launch CIC in early 2010 with others. 

His avowed goal is to build a new economy from the ground up.  CIC is a fascinating model because it provides a legal and financial framework for supporting a diverse network of independent workers who trade with and support each other.  This is allowing participants to develop some massive social and economic synergies among CIC's many enterprises, which include a restaurant, hostel, wellness center, Bitcoin ATM, library, among hundreds of others.

As Schneider writes:

At last count, the CIC consisted of 674 different projects spread across Catalonia, with 954 people working on them. The CIC provides these projects a legal umbrella, as far as taxes and incorporation are concerned, and their members trade with one another using their own social currency, called ecos. They share health workers, legal experts, software developers, scientists, and babysitters. They finance one another with the CIC's $438,000 annual budget, a crowdfunding platform, and an interest-free investment bank called Casx. (In Catalan, x makes an sh sound.) To be part of the CIC, projects need to be managed by consensus and to follow certain basic principles like transparency and sustainability. Once the assembly admits a new project, its income runs through the CIC accounting office, where a portion goes toward funding the shared infrastructure. Any participant can benefit from the services and help decide how the common pool is used.

The Rise of Biocultural Rights

Can law be used to protect and advance the commons?  One of the most promising new developments here is a new jurisprudence of “biocultural rights.” Biocultural rights represent a bold new departure in human rights law that recognizes the importance of a community’s stewardship over lands and waters.  Instead of focusing on individual rights and private property, biocultural rights explicitly recognize a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape.  In other words, it recognizes the existence of a commons. 

The history and character of biocultural rights are wonderfully explained in a recent law review article in the Journal of Human Rights and the Environment.  The article, “Community Stewardship:  The Foundation of Biocultural Rights,”  is by Kabir Sanjay Bavkiatte, a cofounder of Natural Justice, an international collective of environmental lawyers, and Thomas Bennett, a professor at the university of Cape Town, South Africa. (Vol. 6, No. 1, March 2015, pp. 7-29)

Here’s an abstract of the article:

The term ‘biocultural rights’ denotes a community's long established right, in accordance with its customary laws, to steward its lands, waters and resources. Such rights are being increasingly recognized in international environmental law. Biocultural rights are not simply claims to property, in the typical market sense of property being a universally commensurable, commodifiable and alienable resource; rather, as will be apparent from the discussion offered here, biocultural rights are collective rights of communities to carry out traditional stewardship roles vis-à-vis Nature, as conceived of by indigenous ontologies.

Certain core principles lie at the heart of biocultural rights, write Bavkiatte and Bennett.  These include “non-discrimination, protection of cultural integrity, self-government, title to lands and natural resources, together with social welfare for economic well-being.” 

The authors concede that “international lawyers have undertaken little or no research into the development of biocultural rights” – something that this article sets out to rectify. They argue persuasively, however, that these rights have clearly surfaced in a variety of international covenants, declarations, conventions and codes of conduct. 

Biocultural rights as a new field of law have not emerged magically on their own, but through the convergence of four interrelated movements that have contributed important ethical principles, legal concepts and political advocacy.  Together, these movements have brought the idea of biocultural rights into sharp focus. 

The four movements identified by the authors consist of:

“post-development” advocates who are articulating a vision for human society beyond the discredited neoliberal paradigm;

the commons movement that rejects the “tragedy” fable and empirically demonstrates the effectiveness of local self-governance;

the movement of indigenous peoples asserting their right to self-determination, cultural heritage and stewardship of the land; and

the push for a “third generation” of environmental human rights that go beyond basic civil and political rights (first generation) and socio-economic and cultural rights (second generation), to recognize community rights to self-determination, economic and social development, cultural heritage and a clean and healthy environment.

Harvard law professor Yochai Benkler gave attendees at the World Economic Forum in Davos a dire warning about future instability if the “Uber-ification of all services” continues.  In his intense six-minute talk, “Challenges of the Sharing Economy,” Benkler notes how open networks and collaborative production models have led to the “destabilization of the firm," and ultimately threaten to bring about “the potential reorganization of the entire services sector.”

In light of this epochal shift, he declares, the critical question is: “Will [this shift] allow embedding economic production in the same kind of social solidarity trust models that we saw with the emergence of Wikipedia? Or will the externalization of risk onto the people formerly known as employees create severe disruption?” 

The big challenge today, he argued, is that the social and the political have diverged, as demonstrated by the Occupy movement. And this leads to worrisome social pressures that the political system is disinclined to address.

I realize that Benkler must have been under a strict time limit -- he was talking quite rapidly for this talk -- but it sure would be nice to hear his proposed solutions for re-integrating the social and the political in functional ways, and how he proposes moving that agenda forward.  But at least the Davos crowd was alerted to this fundamental political challenge. Whether they will deign to recognize the issue and move beyond their adulation for the Uber, Airbnb and other lucrative forms of network monopoly is another matter.

A New Commodity Is Born: Breast Milk

It’s not everyday that we get to see great masses of people alter their attitudes as a cherished act of motherhood is converted into a lucrative market. That’s what is happening these days with breast milk, as recently reported by the New York Times. Biotech firms want to capitalize on the rich therapeutic potential of breast milk by turning it into high-tech medical products that can fight infections, improve blood clotting and deal with intestinal and infectious diseases. 

This keen commercial interest in acquiring breast milk – an intimate part of the human body associated with maternal love and nourishment – raises all sorts of troubling new questions.  Who will have privileged access to breast milk in the future – biotech firms backed by the deep pockets of venture capitalists, or premature babies who need the milk, especially from their own mothers?  Will the emerging big business of breast milk lead to the closing of “milk banks” that provide donated breast milk to hospitals and nursing mothers at cost (i.e., the costs of donor-screening and pasteurization)? 

The rise of a new market for breast milk brings to the fore the fundamental issue of inalienability – the idea that certain things are so valued that it is not ethically appropriate to exchange them for money in the marketplace. This is a topic that is near and dear to commoners, of course, who are constantly trying to prevent and reverse market enclosures that commodify everything from water and the atmosphere to the human genome and childhood.

Years ago, I learned a lot about inalienability from Margaret Jane Radin’s book Contested Commodities:  The Trouble with Trade in Sex, Children, Body Parts and Other Things (Harvard University Press, 1996).  She argues that liberal societies have a recurrent problem caused by a philosophical conundrum:  It values freedom and individual choice, but it also values the dignity of personhood.  So what happens when our “freedom of choice” in the marketplace runs over our integrity and dignity as human beings – such as having intimate aspects of our bodies converted into market commodities?

Over the past twenty years, there has been such a proliferation of computers, smartphones, digital devices, surveillance cameras, maps, mobile applications, sensors and much else – all of it networked through the Internet, wireless and telephone connections – that an unimaginably vast new body of personal data is being generated about us, individually and collectively.    

The question is, Can we possibly control this data to serve our own desires and purposes?  Or will we be modern-day techno-peasants controlled by the neo-feudal masters on the hill, Facebook, Google and Twitter and their secret and not-so-secret partners in the US Government?

Finding an effective response to this worsening situation is not going to be easy, but one brave initiative is attempting to start a new conversation about how to build a new, more socially benign data order.  The Ubiquitous Commons, a project launched by Italians Salvatore Iaconesi and Oriana Persico, seeks to find new technological, legal and social protocols for managing the sheer ubiquity of networked information, and for assuring us some control over our digital identities.  Their basic idea is “to promote the adoption of a new type of public space in which knowledge is a common," which they describe as "ubiquitous commons."

Iaconesi and Persico believe that vital public and personal information should not be controlled by large proprietary enterprises whose profit-driven activities are largely hidden from public view and accountability.  Rather, we should be able to use our own data to make our own choices and develop “ubiquitous commons” to meet our needs. 

Why should Facebook and its social networking peers be able to control the authentication of our digital identities?  Why should they decide what visual and textual works shall be publicly available and archived for posterity?  Why should their business models control the types of insights that can be gleaned from “their” (proprietary) Big Data based on our information -- while government, academic researchers and the general public are left in the dark? 

I remember how Google crowed that its search results could make better, more timely predictions about the flu and other contagious diseases than the Centers for Disease Control.  I don't see this type of unaccountable, god-like power over social information as so wonderful and benign, especially when lucrative business self-interests may selectively govern what gets disclosed and what is used for private strategic advantage.  

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