The Public Domain: Enclosing the Commons of the Mind

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Paul D. Fernhout

Dec 6, 2008, 4:05:22 PM12/6/08
Interesting read:
"James Boyle's New Book Under CC License"
"James Boyle has released his new book, The Public Domain: Enclosing the
Commons of the Mind (Yale University Press) under a Creative Commons
License. It can be downloaded free or read online. There are chapters on
Thomas Jefferson's views of IP, musical borrowing and the birth of soul,
free software, and synthetic biology. Lessig is impressed. Doctorow says he
is a law prof who writes like a comedian (is this a good thing?), and
credits Boyle's first book for getting him involved in online rights."

The site of the book:

One part of what I looked at (I've just glanced at a tiny bit) was interesting:
"The Second Enclosure Movement"
But if there are similarities between our two enclosures, there are also
profound dissimilarities; the networked commons of the mind has many
different characteristics from the grassy commons of Old England. I want to
concentrate here on two key differences between the intellectual commons and
the commons of the first enclosure movement, differences that should lead us
to question whether this commons is truly tragic and to ask whether stronger
intellectual property rights really are the solution to our problems. These
differences are well known, indeed they are the starting point for most
intellectual property law, a starting point that Jefferson and Macaulay have
already laid out for us. Nevertheless, reflection on them might help to
explain both the problems and the stakes in the current wave of expansion.

Unlike the earthy commons, the commons of the mind is generally “nonrival.”
Many uses of land are mutually exclusive: if I am using the field for
grazing, it may interfere with your plans to use it for growing crops. By
contrast, a gene sequence, an MP3 file, or an image may be used by multiple
parties; my use does not interfere with yours. To simplify a complicated
analysis, this means that the threat of overuse of fields and fisheries is
generally not a problem with the informational or innovational commons. 22
Thus, one type of tragedy of the commons is avoided.

The concerns in the informational commons have to do with a different kind
of collective action problem: the problem of incentives to create the
resource in the first place. The difficulty comes from the assumption that
information goods are not only nonrival (uses do not interfere with each
other), but also nonexcludable (it is impossible, or at least hard, to stop
one unit of the good from satisfying an infinite number of users at zero
marginal cost). Pirates will copy the song, the mousetrap, the drug formula,
the brand. The rest of the argument is well known. Lacking an ability to
exclude, creators will be unable to charge for their creations; there will
be inadequate incentives to create. Thus, the law must step in and create a
limited monopoly called an intellectual property right.

How about the argument that the increasing importance of
information-intensive products to the world economy means that protection
must increase? Must the information commons be enclosed because it is now a
more important sector of economic activity? 23 This was certainly one of the
arguments for the first enclosure movement. For example, during the
Napoleonic Wars enclosure was defended as a necessary method of increasing
the efficiency of agricultural production, now a vital sector of a wartime

Here we come to another big difference between the commons of the mind and
the earthy commons. As has frequently been pointed out, information products
are often made up of fragments of other information products; your
information output is someone else’s information input. These inputs may be
snippets of code, discoveries, prior research, images, genres of work,
cultural references, or databases of single nucleotide polymorphisms—each is
raw material for future innovation. Every increase in protection raises the
cost of, or reduces access to, the raw material from which you might have
built those future products. The balance is a delicate one; one Nobel
Prize–winning economist has claimed that it is actually impossible to strike
that balance so as to produce an informationally efficient market.

Whether or not it is impossible in theory, it is surely a difficult problem
in practice. In other words, even if enclosure of the arable commons always
produced gains (itself a subject of debate), enclosure of the information
commons clearly has the potential to harm innovation as well as to support
it. More property rights, even though they supposedly offer greater
incentives, do not necessarily make for more and better production and
innovation—sometimes just the opposite is true. It may be that intellectual
property rights slow down innovation, by putting multiple roadblocks in the
way of subsequent innovation. Using a nice inversion of the idea of the
tragedy of the commons, Heller and Eisenberg referred to these effects—the
transaction costs caused by myriad property rights over the necessary
components of some subsequent innovation—as “the tragedy of the anticommons.”

In short, even if the enclosure movement was a complete success, there are
important reasons to believe that the intangible world is less clearly a
candidate for enclosure, that we should pause, study the balance between the
world of the owned and the world of the free, gather evidence. After all,
even in physical space, “common” property such as roads increases the value
of the surrounding private tracts. If there are limits to the virtues of
enclosure even there, how much more so in a world of intangible and nonrival
goods, which develop by drawing on prior creations? Yet the second enclosure
movement proceeds confidently nevertheless—with little argument and less

Anyway, more stuff to add to that NASA proposal Bryan suggested. :-)

--Paul Fernhout

marc fawzi

Dec 6, 2008, 4:12:21 PM12/6/08
Here is a metaphor for non-rival commons: air.

I wouldn't want to copyright, trademark or patent the air I breathe.

Same with ideas, software (which is ideas), music, designs, innovations, processes, blueprints, etc.

In the movies Space Balls, they actually make fun of "canned air" and that to me is a perfect metaphor for commercial software licenses, iTunes sales, etc.

What kind of society we live in when people are wiling to pay for canned air.

Bryan Bishop

Dec 6, 2008, 4:41:36 PM12/6/08
On Sat, Dec 6, 2008 at 3:05 PM, Paul D. Fernhout
<> wrote:
> Anyway, more stuff to add to that NASA proposal Bryan suggested. :-)

I 'counter' that with Kelty's book released earlier this year in a
similar push. These are really great books .. if anybody wants to get
me presents for the holidays :-) physical copies wouldn't hurt :-).

"Free Software is a set of practices devoted to the collaborative
creation of software source code that is made openly and freely
available through an unconventional use of copyright law. Kelty shows
how these specific practices have reoriented the relations of power
around the creation, dissemination, and authorization of all kinds of
knowledge after the arrival of the Internet. Two Bits also makes an
important contribution to discussions of public spheres and social
imaginaries by demonstrating how Free Software is a "recursive public"
public organized around the ability to build, modify, and maintain the
very infrastructure that gives it life in the first place.

Drawing on ethnographic research that took him from an Internet
healthcare start-up company in Boston to media labs in Berlin to young
entrepreneurs in Bangalore, Kelty describes the technologies and the
moral vision that binds together hackers, geeks, lawyers, and other
Free Software advocates. In each case, he shows how their practices
and way of life include not only the sharing of software source code
but also ways of conceptualizing openness, writing copyright licenses,
coordinating collaboration, and proselytizing for the movement. By
exploring in detail how these practices came together as the Free
Software movement from the 1970s to the 1990s, Kelty also shows how it
is possible to understand the new movements that are emerging out of
Free Software: projects such as Creative Commons, a nonprofit
organization that creates copyright licenses, and Connexions, a
project to create an online scholarly textbook commons."

- Bryan
1 512 203 0507

Paul D. Fernhout

Dec 6, 2008, 5:31:45 PM12/6/08
I've seen that theme of paying for air in a few sci-fi stories (Heinlein's
The Rolling Stones has a fee for air or mass change I think), which in the
1960s were often being written by libertarian-leaning authors
(extreme libertarians tend to think *everything* should be privatized).

There are often obvious contradictions in some of these writings -- the
libertarian novel "Pallas", for example,
is set in an artificial world that essentially was a rich person's gift to
libertarian-minded people. :-) No contradiction there, right? :-) No air
fees mentioned that I remember, by the way -- I guessed Smith missed that
one? :-)

But this libertarian influence on young mind reading sci-fi (at least
mainstream English-language sci-fi written in the 1950s-1980s) is a deep
aspect of our technology culture.

An example of controversial privatization on Earth:
"Water privatization is a short-hand for private sector participation in the
provision of water services and sanitation, although more rarely it refers
to privatization of water resources themselves. Because water services are
seen as such a key public service, proposals for private sector
participation often evoke stronger opposition than for other sectors.
Globally, more than 90% of water and sanitation systems are publicly owned
and operated."

My concern for Google's "Project Virgle" was that
There is essentially in Virgle as proposed a confusion of being an
indentured servant (to Google) with being a citizen (of a free and
prosperous space habitation). I posted an essay on why the corporate serfdom
idea was misguided:
"It was writing and reading "two weeks notice" that eventually made me
realize it would never work. Again: "So, when you get "fired" at Virgle --
it's out the airlock without a helmet? "

With all that said, a lot of libertarian ideas appeal to me. :-) It's just
that, is is said here:
"The abolition of work"
"Curiously -- or maybe not -- all the old ideologies are conservative
because they believe in work. Some of them, like Marxism and most brands of
anarchism, believe in work all the more fiercely because they believe in so
little else."

The important thing about libertarianism is also that there are many
variations. Quite a list here:

The Ayn Rand "superman" school (and could be called "Propertarianism") is
most often presented. I'd expect many would probably readily believe people
should die if their air fees are not paid (unless a relative or charity
paid). Certainly, I'd expect most strong believers of Propertarianism would
say people should die if they get sick and their health insurance fees are
not paid. (I met a twenty-something who said exactly that.)

There are others which in some ways are opposite:
"Libertarian socialism is a group of political philosophies that aim to
create a society without political, economic, or social hierarchies, i.e. a
society in which all violent or coercive institutions would be dissolved,
and in their place every person would have free, equal access to tools of
information and production, or a society in which such coercive institutions
and hierarchies were drastically reduced in scope."

It's a deep set of political questions to think about how the universe's
abundance should be shared, and to think about whether people need to be
extrinsically motivated to do important things, and if so, how. I'm sure
lots of approaches are workable in theory, even paying for air and water.

Libertarians and anarcho-capitalists, in calling for the abolition of state
property and services, typically call for a process of "privatization" that
relies heavily on the corporate capitalist model of ownership. The property
of the State should be auctioned off and its services performed by, say,
GiantGlobalCorp LLC. And the picture of the future market economy, so far as
business enterprise is concerned, is simply the present corporate economy
minus the regulatory and welfare state--an idealized version of Nineteenth
Century "robber baron capitalism." The former tendency ignores other
alternatives, equally valid from a free market anarchist perspective, such
as placing government services like schools and police under the cooperative
control of their former clientele at the town or neighborhood level. And the
latter tendency ignores the issue of state capitalism, of the extent to
which the giant corporations that have received the lion's share of their
profits from the State can be regarded either as legitimate private property
or the result of theft. In challenging this aesthetic affinity for the
corporation as the dominant form of economic organization, Karl Hess
denounced those who simply identified libertarianism "with those who want to
create a society in which super capitalists are free to amass vast
holdings..." Writing in The Libertarian Forum in 1969, Hess argued instead
that "Libertarianism is a people's movement and a liberation movement. It
seeks the sort of open, non-coercive society in which the people, the
living, free, distinct people, may voluntarily associate, dis-associate,
and, as they see fit, participate in the decisions affecting their lives.
This means a truly free market in everything from ideas to idiosyncracies.
It means people free collectively to organize the resources of their
immediate community or individualistically to organize them; it means the
freedom to have a community-based and supported judiciary where wanted, none
where not, or private arbitration services where that is seen as most
desirable. The same with police. The same with schools, hospitals,
factories, farms, laboratories, parks, and pensions. Liberty means the right
to shape your own institutions. It opposes the right of those institutions
to shape you simply because of accreted power or gerontological status."

So, there you see one of many splits among people calling themselves

Whether we want to build such societies that focus on any one extreme value
is a different issue. See:
"Marxism of the Right" by Robert Locke
"The most fundamental problem with libertarianism is very simple: freedom,
though a good thing, is simply not the only good thing in life. Simple
physical security, which even a prisoner can possess, is not freedom, but
one cannot live without it. Prosperity is connected to freedom, in that it
makes us free to consume, but it is not the same thing, in that one can be
rich but as unfree as a Victorian tycoon’s wife. A family is in fact one of
the least free things imaginable, as the emotional satisfactions of it
derive from relations that we are either born into without choice or, once
they are chosen, entail obligations that we cannot walk away from with ease
or justice. But security, prosperity, and family are in fact the bulk of
happiness for most real people and the principal issues that concern
governments. "

Of course, people might use that point above to argue for "proprietary"
software and content -- that somehow security or prosperity are more
important than free software, and you can only achieve those by making
proprietary things. I disagree, of course, feeling that free and open source
stuff is generally more compatible with prosperity and security than
proprietary stuff. :-)

By the way, many libertarians don't like copyrights or patents:
"Libertarians have differing opinions on the validity of intellectual
property laws. Many libertarians don't have a strong opinion on the topic,
while others consider it a minor matter in the light of what they believe
are greater government violations of rights, such as physical property rights."

Considering the notions of Bob Black above, I feel most of these -isms are
probably going away in the face of post-scarcity trends. They *all* assume
these issues of production are *hard*, when it is the very intent of open
manufacturing to make them easy.

There is nothing I can think of that would make most people employable in a
world of AI and robotics in any conventional way. So, for me, at least
"Propertarian" libertarianism, including "paying for air" is a non-starter.
We'd almost all suffocate. We're already pretty close to that now. Plumbers
may hang on the longest. :-) The guy who wrote "Manna" also wrote this:
"Robotic Nation"
"Imagine this. Imagine that you could travel back in time to the year 1900.
Imagine that you stand on a soap box on a city street corner in 1900 and you
say to the gathering crowd, "By 1955, people will be flying at supersonic
speeds in sleek aircraft and traveling coast to coast in just a few hours."
In 1900, it would have been insane to suggest that. In 1900, airplanes did
not even exist. Orville and Wilbur did not make the first flight until 1903.
The Model T Ford did not appear until 1909. Yet, by 1947, Chuck Yeager flew
the X1 at supersonic speeds. In 1954, the B-52 bomber made its maiden
flight. It took only 51 years to go from a rickety wooden airplane flying at
10 MPH, to a gigantic aluminum jet-powered Stratofortress carrying 70,000
pounds of bombs halfway around the world at 550 MPH. In 1958, Pan Am started
non-stop jet flights between New York and Paris in the Boeing 707. In 1969,
Americans set foot on the moon. It is unbelievable what engineers and
corporations can accomplish in 50 or 60 short years. There were millions of
people in 1900 who believed that humans would never fly. They were
completely wrong. However, I don't think anyone in 1900 could imagine the
B-52 happening in 54 years. Over the next 55 years, the same thing will
happen to us with robots. In the process, the entire employment landscape in
America will change. Here is why that will happen. ... The arrival of
humanoid robots should be a cause for celebration. With the robots doing
most of the work, it should be possible for everyone to go on perpetual
vacation. Instead, robots will displace millions of employees, leaving them
unable to find work and therefore destitute. I believe that it is time to
start rethinking our economy and understanding how we will allow people to
live their lives in a robotic nation. ..."

Consider who could pay for air or water (or copyrighted content or patented
processes) in thirty years, if robotics continues to develop just at the
current rate over the last thirty years.

Check out clerks?
"Your supermarket cashier may not know a kiwano from a tamarillo, but
Veggie Vision does."

Cab drivers?

Heart Surgeons?

Airline pilots?

"Robot nurse escorts and schmoozes the elderly"

"AKIBA ROBOT FESTIVAL 2006: Actroid Female Robot"


Migrant agricultural labor?
"AgBo Agricultural Robot"


"robot artist draws portraits"

"Evolutionary Design by Computers"

"Could Robots Replace Humans in Mines?"

Writer? (Well, these need a little work. :-)
"SCIgen - An Automatic CS Paper Generator"
"General Writing / Plot / Story Generators"

Sure, people will rightly point out none of these robots are perfected yet
(although Google works pretty well at a lot of routine stuff we used to ask
librarians to help with or relied on them to keep up with manually).

All still require human supervision (though big airplanes have great
autopilots, some that can land the planes even in bad weather).

Some, like the surgical robot, amplify what a trained human can do but don't
yet replace the person (even though it's not too big a stretch to imagine
coupling a surgical robot with the Veggie Vision ideas). The Nursebot is the
most limited of all of these robots relative to the need, and there is no
plumber bot I know of (except specialized ones for nuclear power stations).
The writing software is added as a joke, :-) but also to show how even that
shift is in progress -- at the very least, such informational tools can
amplify and speed what one human writer can do.

And there may always be a demand for big name human athletes and
entertainers -- maybe a few thousand of each, at least as far as media stars?

But that is not much of a basis to envision an economy for thirty years from
now, employing billions of people presumably still competing for jobs both
with each other and against the robots other people make. It's basic
capitalism. If a company can reduce costs, it must, because its competitors
will. Until, costs start to approach zero, and we get divide-by-zero errors
in all the economic equations leading to infinities.

Anyway, these all point out how all the assumptions underpinning the
economics of our society (and related politics and schooling) are changing,
and within decades, if not sooner.

The handwriting is on the wall, not just for compulsory schools, but for
other large parts of our social structure they link up with. It's not
necessarily a bad message either, if we accept it and try our hardest to
make the best of it. It's not like one day the robots and AIs will suddenly
take over (I hope). It is more like bit by bit things will continue to
change and these things will show up in our lives, and our social network
will shape them based on our priorities.

For example, luxury cars have moved from anti-lock brakes, then to GPS
course routing, then to Electronic Stability Control, and now the big thing
is adaptive cruise control using radar to maintain a fixed distance from the
next car, and also automatic parallel parking. Soon more safety features
will be common to detect swerving lane changes, to drive by radar in fog, to
brake fast and swerve to avoid deer, and so on, until before we know it, we
decide in about ten or twenty years that it's safer to let the car drive
itself than give the keys to our teenagers:
"GM: Self Driving cars on the road in 10 years"

And the teenagers presumably will have more interesting things to do in cars
than keep their eyes on the road. I was thinking use the internet, but one
could imagine another worrisome thing, so perhaps, maybe it's safer to
*force* teenagers to drive manually on dates? :-) "Teen: Gee, do I really
have to drive the car manually? It's so embarrassing, like you don't trust
us or something. We're just going to use the auto-internet together on the
trip to play this new game." Anyway, I can wonder how quickly other
assumptions about our social world will change. What if your young child
wants the family car to take them across the country to visit grandma and
circumvents the security codes? And so on.

I focused on robotics and AI above, but I could as well have talked about
the potential of biotechnology or cheap renewable energy over the next few
decades. And I've confined myself mostly to talking about refinements of
stuff that exists and is often in production -- not even wilder speculation
of stuff that is only talked about or is still controversial (like cold
fusion). All of these things mean broad changes for our society soon.

This issue was identified and thought about even in the 1960s, which I never
get tired of quoting (and just even sent to Obama's site):
"The fundamental problem posed by the cybernation revolution in the U.S. is
that it invalidates the general mechanism so far employed to undergird
people’s rights as consumers. Up to this time economic resources have been
distributed on the basis of contributions to production, with machines and
men competing for employment on somewhat equal terms. In the developing
cybernated system, potentially unlimited output can be achieved by systems
of machines which will require little cooperation from human beings. As
machines take over production from men, they absorb an increasing proportion
of resources while the men who are displaced become dependent on minimal and
unrelated government measures—unemployment insurance, social security,
welfare payments. These measures are less and less able to disguise a
historic paradox: That a substantial proportion of the population is
subsisting on minimal incomes, often below the poverty line, at a time when
sufficient productive potential is available to supply the needs of everyone
in the U.S. ... The continuance of the income-through jobs link as the only
major mechanism for distributing effective demand—for granting the right to
consume—now acts as the main brake on the almost unlimited capacity of a
cybernated productive system."

Almost *nobody* is going to be able to out-compete robots in thirty years.
If we still have a hyper-competitive economy still privatizing water and the
fruits of manufacturing by then, even if the air is still free, I suspect
almost all of us are doomed anyway. That's one reason I feel that open
manufacturing is so essential to our collective survival.

--Paul Fernhout
(The last part was adapted from something I wrote recently for a non-public
list. I'm starting to wonder if I should post much on non-public lists
anymore, beyond maybe a link to something public.)

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