David Bollier

The ongoing Snowden revelations about NSA surveillance have all sorts of implications for the rule of law, constitutional democracy, geopolitical alignments, human rights and much else.  The disclosures deserve our closest attention for these reasons alone.  But what do these revelations have to do with the commons?

If we regard the act of commoning as a genre of citizenship – acts of voluntary association and action that are critical to human freedom and democracy – we can see that snooping by both the NSA and its corporate brethren are profoundly hostile to the future of the commons.  They violate some fundamental notions of human rights, civil freedoms and the ability of individuals to protect their privacy and thus their sovereignty.

If the market/state apparatus can digitally monitor our reading habits and telephone calls, email correspondence and purchases, physical movements and much else, then it has effectively snuffed out the sovereignty of a free people. The barrage of the successive Snowden disclosures has been followed by a relentless government propaganda war, cable TV denunciations and even attacks on Greenwald by the liberal nomenklatura (Michael Kinsley, George Packer). It’s as if "respectable opinion" did not care to note or defend the elemental human freedoms that a functioning democracy requires.

It was such a pleasure therefore to (belatedly) encounter a series of four lectures delivered last fall by Eben Moglen, a law scholar and historian at Columbia Law School, founder of the Software Freedom Law Center, and former general counsel of the Free Software Foundation.  The four talks -- "Snowden and the Future" -- offer one of the most eloquent and historically informed critiques of the Snowden revelations and their implications for freedom, democracy and – I would add – the capacity of people to common.

What does enclosure feel like from the inside, as a lived experience, as a community is forced to abandon its “old ways” and adopt the new worldview of Progress and Profit?  British author Jim Crace’s novel, Harvest, a finalist for the Man Booker Prize in 2013, provides a beautiful, dark and tragic story of the first steps of the “modernization” of a preindustrial English village.

The story focuses on a hamlet that is suddenly upended when the kindly lord of the settlement, Master Kent, discovers that his benign feudal control of a remote patch of farmland and forest has been lost to his scheming, cold-hearted cousin, Edmund Jordan.  Jordan is a proto-capitalist who has a secret plan to evict everyone and turn their fields into pastures for sheep.  He plans to become rich producing wool for the flourishing export market.  But Jordan can’t simply announce his planned dispossession of land lest it provoke resistance.  He realizes that he must act with stealth and subterfuge to take possession of the land and eradicate the community, its values and its traditions.

The story is essentially a tale of what happens when a capitalist order seeks to supplant a stable and coherent community.  But this states the narrative too crudely because the book is a gorgeously written, richly imagined account of the village, without even a hint of the ideological.  Told through the eyes of a character who came to the village twelve years earlier, the story doesn’t once mention the words “enclosure,” “capital” or “Marx.”  (Indeed, the Wall Street Journal’s reviewer praises the book for “brilliantly suggest[ing] the loamy, lyric glories of rustic English language and life.”)

Harvest depicts the sensuous experiences of a village community wresting its food from nature, but with relative peace and happiness.  "Our great task each and every year is to defend ourselves against hunger and defeat with implements and tools. The clamour deafens us. But that is how we have to live our lives," the narrator tells us.  The book also shows how easily this world is shattered by a brutal outsider who uses fear and social manipulation to rip apart a community in order to install a new regime of efficiency, progress and personal gain.

In the quest to imagine and build a new “sharing economy,” one factor that is often overlooked is law.  What shall be the role of formal law in a world of social enterprises, shared workspaces, cohousing, car-sharing groups, tool-lending libraries, local currencies and crowdfunding?  Who has legal rights in these various contexts, and what do they look like?  Who holds the legal liabilities?

These questions are sometimes ignored by commoners who consider the law a retrograde, irrelevant force to be avoided.  But even among those who acknowledge the inescapability of conventional law, the contours of legal rights and liabilities are not always self-evident because the law tends to be silent about commoning, or construes such activities in archaic legal categories. The law as it now stands presumes that we are either businesses or consumers, employers or employees, or landlords and tenants.  Production and consumption, and investment and usage, are "naturally" considered separate activities pursued by different people. 

But nowadays countless activities in the sharing economy are blurring old categories of law. There may be many parties involved in managing a a workspace, childcare facility or online information, or perhaps many people have ongoing relationships and responsibilities and entitlements that are collective and evolving. Should the strict letter of the (archaic) law necessarily trump our informal, self-negotiated social rules? 

Janelle Orsi, director of the Oakland-based Sustainable Economies Law Center, has tackled these and many other such questions in a terrific book, Practicing Law in the Sharing Economy:  Helping People Build Cooperatives, Social Enterprise and Local Sustainable Economies (ABA Publishing).  The book covers a monumental array of legal topics that are relevant to the sharing economy.  Most of the chapters deal with how to craft agreements that validate special forms of sharing – for example, how to form organizations, how to exchange with each other and how to invest in each other’s work.  There are also chapters for shared working arrangements, mutual provisioning, sharing rights to land, sharing rights to intellectual property, and managing collective risks.  

For a country suffering from economic devastation and political upheaval, Greece is not accustomed to bursts of optimism.  But last weekend provided a showcase of hopeful, practical solutiions at the second annual CommonsFest, held in Heraklion on the island of Crete.  The festival brought together a dazzling array of commons and peer production communities:  hackers, open knowledge advocates, practitioners of open design, hardware and manufacturing, open health innovators, sustainable farming experts, among many others. 

Vasilis Kostakis, a political economist and founder of the P2P Lab in Greece, noted that the “key contribution of CommonsFest has been to bring together so many components of the commons movement and raise awareness amongst them.  People had the chance to meet, talk and learn from each other with the aim of creating the seed of a larger movement.” Kostakis said that the crowdfunded festival “illustrates that the philosophy that has emerged from free software and open content communities actually extends to many aspects of our daily lives.”

The event drew hundreds of people to twenty-four talks, nine workshops and an exhibition of many commons-based technologies and projects.  Kostakis said that CommonsFest participants are preparing a forthcoming “declaration for the protection and the strengthening of the Commons” that will soon be published in Greek and then translated into other languages.  [I will add the declaration to this blog post as an update when it is available. –DB] 

CommonsFest also featured an open art space with more than 30 video works licensed under Creative Commons licenses and the screening of a new documentary, “Knowledge as a Common:  Communities of Production and Sharing in Greece,”organized by the Cinema Group from the University of Crete.  The film’s director, Ilias Marmaras, spoke afterwards.  Both events were intended to “highlight the collaboration that we can build working together as peers” and show that “the freedoms provided by the Creative Commons licenses help us share easily and create cultural value.”

Commons projects and activism seem to be really hopping in Greece:  just last week a collaborative ebook, Πέρααπότοκράτοςκαιτηναγορά: Ηομότιμηπροοπτική, was published in Greece as a free, downloadable pdf file.  The ebook presents a vision for a commons-oriented economy and society.  Print copies will be available at the end of May, at a price defined by the reader.