This is awesome introduction to the plight of the commons; it's from
David Bollier's new book, Silent Theft: the Private Plunder of Our
Common Wealth. --CM
- - - - - -
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
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
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
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
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
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
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
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
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
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
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
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
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:
* New policy structures must be invented to assure a fair
economic return on public assets and the protection of gift economies.
* More effective regimes must be devised to oversee and manage
the private use of government lands and natural resources.
* New sorts of stakeholder trusts should be created to give
ordinary citizens an equity interest in public assets, as the Alaska
Permanent Trust does for that state's oil revenues.
* Congress should work to stop the enclosure of the Internet
commons and public knowledge by fortifying the public domain and fair
use rights. It should also refuse to grant sweeping new intellectual
property rights to book publishers, film studios, the recording
industry and software makers.
* Our government should insist upon some meaningful forms of
public access to the airwaves, which have been surrendered wholesale
to commercial broadcasters for virtually nothing.
* The fruits of federally sponsored research must be recovered
for the American people, and not forfeited for fire-sale prices, and
the independence and integrity of academic inquiry must be assured.
* The over-commercialization of public spaces, community
institutions, childhood experience and culture should be stoutly
resisted through public policy and social protest.
Our government is supposed to act as a steward for the public's
economic, civic and environmental interests. It is revealing that our
government has not even compiled a comprehensive inventory of common
assets - the prerequisite for any accounting of lost revenues,
lasting harm to the assets, and damage to gift economies. Business
critics often cry that environmental regulations amount to
unconstitutional "takings" of their private property. But as a
commons analysis makes clear, the actual "takings" are often
committed by the victors of our Darwinian market, and the victims are
the unorganized public: the commoners. This book, then, is a first,
rough draft of that much larger project, the reclamation of the
common wealth - and the reinvigoration of the commonwealth.
1 By a rough estimate made by the Consumer Project on Technology
based on a compulsory license that West granted to the U.S. Justice
Department, the cost of renting access to a single year of federal
court cases - some 15,000 cases - comes to $40,500 for a single user.
"This is a high price to pay to simply avoid [public domain]
numbering opinions and paragraphs," writes James Love. See
2 The most comprehensive history of the struggle to break West
Publishing's monopoly and institute a regime of universal citation
for federal cases is an essay by Jol Silversmith, "Universal
Citation: The Fullest Possible Dissemination of Judgments,"
originally published in the now-defunct Internet Legal Practice
Newsletter in May 1997, now available online at
http://www.thirdamendment.com/citation.html. Another overview, from
the perspective of 1994, is Gary Wolf, "Who Owns the Law," Wired, May
1994, p. 198.
3 Franz Kafka, The Trial (translated by Willa and Edwin Muir, 1988),
cited in Silversmith, ibid.
4 See, e.g., Reuter, "Justices, Judges Took Favors from Publisher
with Pending Cases," Washington Post, March 6, 1995.; John J. Odlund,
"Debate Rages Over Who Owns the Law," The Minneapolis Star Tribune,
March 5-6, 1995, reprinted in the Congressional Record, July 28, 1995
(Senate), pp. S10847-10855; and Thomas Scheffey, "Feds and West
Publishing: Too Close for Comfort?" Connecticut Law Tribune, March
1997; and Doug Obey and Albert Eisele, "West: A Study in Special
Interest Lobbying," The Hill, February 22, 1995, p. 1.
5 HyperLaw Inc. v. West Publishing. See David Cay Johnston, "West
Publishing Loses a Decision on Copyright," New York Times, May 21,
1997, p. D1.
6 The courts in Great Britain, however, have adopted a public-domain,
technology-neutral citation system based upon paragraph numbering.
See "Neutral Citation of Judgments System is Introduced, The Times
(London), January 16, 2001.
7 The constitutional dimensions of this theme are discussed by
Jennifer Nedelsky in Private Property and the Limits of American
Constitutionalism: The Madisonian Framework and Its Legacy (Chicago:
University of Chicago Press, 1990).
8 See, e.g., Clifford Cobb, Ted Halstead and Jonathan Rowe, "If the
GDP is Up, Why is America Down?" The Atlantic, October 1995, pp.
2-15. See also Herman E. Daly and John B. Cobb, Jr., For the Common
Good: Redirecting the Economy Toward Community, the Environment and a
Sustainable Future (Boston: Beacon Press, 1989), pp. 62-84.
9 The focus here is on tangible assets and property rights that
belong to the American people, as opposed to government subsidies to
business, which represent another form of corporate welfare. An
excellent comprehensive overview of varieties of corporate welfare
can be found in Ralph Nader's testimony before the Committee on the
Budget, U.S. House of Representatives, June 30, 1999.
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