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Reinventing Law for the Commons, Part I

photo of David Bollier

David Bollier
2nd September 2015


CommonLaw_widget

One of the most devastating and recurring problems that virtually every commons faces is market enclosure – the privatization and marketization of shared resources by businesses, investors and speculators, often in collusion with government. What’s really remarkable is that legislatures and courts so often declare that enclosures are legal because they supposedly contribute to economic growth, progress and freedom, etc.

All of this got me to thinking:  What would it look like if commoners could invent their own types of law, consistent with state law, to reliably protect their commons?  What if there were a more rigorous Law for the Commons?

There are in fact many examples from history.  The most notable ones may be the centuries-old public trust doctrine for water and other natural resources, and the Charter of the Forest, the forgotten part of Magna Carta that guarantees commoners’ rights.

In our time, the General Public License for software and the Creative Commons licenses for content are masterstrokes of legal ingenuity that protect shared wealth.  Commoners can be confident that no one can legally appropriate their pooled resources, whether they are code, writing, images or music.

As I looked into this topic further, I discovered that there is in fact a wealth of legal innovation now underway in many sectors of the commons world.  There are clever legal hacks to protect indigenous peoples’ agroecological knowledge and traditions.  There are new variations on co-operative law and new legal initiatives to protect local communities’ self-determination.  There are stakeholder trusts and new organizational forms for commoning.

With support from the Heinrich Boell Foundation, I researched and wrote a lengthy four-part strategy memorandum outlining more than sixty examples of legal innovation for the commons.  The memo also includes a rationale for launching a new field of inquiry and activism, Law for the Commons. Here is a short list of the contents of the memo

Part I:  Introduction

Part II:  Legal Innovations in Beating the Bounds:  Nine Promising Fields of Action

1.  Indigenous Commons

2.  Subsistence Commons in the Global South

3.  Digital Commons

4.  Stakeholder Trusts

5.  Co-operative Law

6.  Urban Commons

7.  Localism

8.  New Organizational Forms

9.  Re-imagining State Policy to Empower Commons

Part III:  The Strategic Value of Developing Law for the Commons  

Part IV:  Next Steps   

In the next four blog posts, I will share my strategy memo part-by-part, and invite comments and ideas for moving forward.  A beautiful new wiki hosted by the Commons Transition Plan will be launched shortly to showcase the many forms of commons-based law mentioned in my memo.  (Thanks, Michel Bauwens and Stacco Troncoso!)  I am hoping that readers will have other examples to add to the ones that I’ve compiled, and new source material and weblinks for existing examples.

Here is Part I of the memo:

A Strategy Memo for the Heinrich Böll Foundation

September 1, 2015

Although it is customary for mainstream economists and politicians to consider the commons a failed management regime – the “tragedy of the commons” – it is in fact a pervasive and highly generative system for meeting people’s needs.  More:  commons tend to function in more culturally satisfying, ecologically responsible ways, which is more than can be said for conventional markets and government systems.  An estimated two billion people in the world depend upon various natural resource commons (water, forests, fisheries, farmland, wild game, etc.) to meet their everyday needs – and over the past twenty years, many people in modern, industrialized contexts have (re)discovered the commons as a new paradigm of self-provisioning.  It is producing everything from software, textbooks and farm equipment, and providing valuable stewardship for urban spaces, indigenous knowledge, natural resources and cooperative finance.

Historically, most commons have not needed nor sought formal protections of law.  Their self-organized customs, socially negotiated rules and relative isolation from outside capital and markets, were enough to sustain them.  This has changed dramatically over the past 30-40 years, however, as global commerce, technology and conventional law have relentlessly expanded, superimposing the logic and values of markets on nearly every corner of the nature and social life.  The resulting enclosures of the commons amount to seizures of common assets for private gain.  They are also destroying culturally coherent, productive communities operating outside of the market/state order, forcing people to become consumers and employees in order to meet their needs.

As enclosures have taken control of common assets – paradoxically calling attention to the actual value of commons; “you don’t know what you got till it’s gone” – they have spurred new interest in using law to protect commons.  This topic has a rich history going back to the Magna Carta and its companion document, the Charter of the Forest, which provided commoners with explicit legal rights to use their customary forests, pastures, rivers and other natural resources to meet their daily needs.  In similar fashion today, commoners are increasingly devising new legal mechanisms to protect their access and use of shared resources from predatory market activity.

This is, in fact, a burgeoning new arena of political innovation in subsistence commons of the global South, digital commons on the Internet, and knowledge and design commons for physical production.  New legal regimes are being created to manage public spaces, water systems and education as urban commons; provide social services, and introduce credit and barter systems through co-operatives.  A vanguard of commoners is proposing stakeholder trusts for large common-pool resources such as oil, minerals, water and the atmosphere. Others are developing new organizational structures such as “omni-commons,” open value networks and community charters to provide legal stability and protection for commoning.

These efforts brashly embrace a paradox – to attempt build a new social order of commoning through creative hacks of laws that presume the sanctity of individual rights, private property, markets and state authority.  Remarkably, there are now many successful adaptations of laws dealing with contracts, trusts, co-operatives, municipal government, copyright, patents, and other bodies of law, that aim to protect common assets and the social practices of commoning.  One might say that this experimentation and exploration are producing a new, not-yet-recognized body of socio-legal-political innovation, “Law for the Commons.” Taken together, the efforts described in Part II below represent a bold attempt to move beyond the confines of conventional law, governance and bureaucracy, and to invent new legal forms to sanction and enable commoning.  (I decline to call it “Law of the Commons” because that term emphasizes law as the magical instrument of external coercion rather than on commoning, a set of self-organized, living social practices and norms, as the critical force of governance and “law.”  It is important to see that law is only an enabling tool for commoners – chiefly in dealing with the state and market enclosures – and not a substitute for commoning.)

Commoners see improvisations in commons-based law as expedient necessities – creative ways to thwart outside appropriation of their resources and to provide legal certainty for their social governance by negotiating a modus vivendi with a hostile state, which often sees commoning as a competing nexus of power and moral authority.  Many commoners have embarked upon this journey to engage with conventional state law because of the alarming gap between legality and legitimacy.  Law for the Commons seeks to bridge this gap between the formal strictures of state law and bureaucratic rules adopted by political and corporate elites – “legality” — and the experiences and vernacular norms and practices of ordinary people.  This “vernacular law,” as I call it, consists of the “unofficial”social norms,procedures, and customaryinstitutionsthatpeer communitiesdevisetomanagetheir own resources. Vernacular law has a moral and social legitimacy that commoners are struggling to assert, not just through law but through political struggles and cultural expression.

So in this sense, commons-based legal innovation is an attempt to overcome the structural limitations of legality, the formal apparatus of market/state governance as now constituted.  This struggle is a bit ambiguous or even paradoxical because commoners aspire to have the sanction of state law (which is grounded in alien philosophical commitments and outlooks) while also developing a very different logic and ethic (of commoning).[1] Commons law seeks to validate different (mostly non-market), socially convivial ways of meeting needs and having meaningful self-governance.  The culture spawned by the Internet over the past twenty years is in effect declaring that “representative” legislatures and centralized bureaucratic systems are simply not as responsive and effective as bottom-up, commons-based approaches on open network platforms.  Significantly, citizens do not experience the former as transparent, legitimate and accountable.

One premise of this memo is that conventional politics and policymaking are suffering from a severe crisis of legitimacy and efficacy – an affliction that commons-based law can help remedy.  The nation-state is suffering a decline in authority as global capital becomes even more powerful and as the scale and complexity of economic, social and ecological problems outstrip the intelligence and instruments of centralized bureaucracies, whether corporate or governmental.  Noting the decline of state authority, Dutch political scientist Maarten Hajer writes: “The weakening of the state goes hand in hand with the international growth of civil society, the emergence of new citizen-actors and new forms of mobilization.  In such cases, action takes place in an ‘institutional void’:  there are no clear rules and norms according to which politics is to be conducted and policy measures are to be agreed upon.  To be more precise, there are no generally accepted rules and norms according to which policymaking and politics are to be conducted.” (emphasis in original)

I submit that commoners are attempting to fill the institutional void of politics with new sorts of commons-based law that have not yet been recognized as such.  This shift of focus by citizens reflects dwindling confidence in state law as a way to achieve real change.  It also reflects growing interest in technology platforms and social norms as better vehicles for “making law”; the latter are seen as more likely to be participatory, effective, respected and legitimate.

In this respect, I believe law for the commons can help rehabilitate and transform mainstream politics and public policy by enacting values that are structurally marginalized by the neoliberal policy consensus – participation, inclusiveness, fairness, non-instrumental human relationships, transparency, accountability.  Commons-based law attempts to declare that certain human relationships and resources must be insulated from market exchange (“inalienability”).  It honors the sovereignty of people to devise their own forms of hands-on governance to meet their needs, especially in a local context.  It recognizes the importance of bottom-up initiatives and engagement.  It provides a philosophically coherent framework – distinct from the governing ethos of the liberal market state – for meeting people’s needs without bureaucracy (politically corrupted, paralyzed by formalities, dominated by lawyers and remote “experts”; indifferent to local complexities) or conventional markets (concentrated, predatory, often rigged and oligopolistic, ecologically harmful, winner-take-all).  I like to think that Thomas Jefferson would endorse this project of developing law for the commons because, as he once said, “laws and institutions must go hand in hand with the progress of the human mind.”  The human mind and social circumstances have changed quite a bit in the last generation, not to mention the last 225 years.

It is worth adding:  the economic logic and appeal of commoning – apart from any moral or political arguments – is rapidly increasing.  As analysts such as Jeremy Rifkin, Paul Mason, Yochai Benkler, Michel Bauwens[2] and many others argue, the world economy is undergoing a profound shift.  Twentieth-century economy of institutions based on strict, hierarchical systems of centralized control and mass production overseen by experts, are giving way to an economy based on open networks that honor self-organized, bottom-up participation in the manner of open source software.  This fundamental re-ordering of economic relationships is releasing a great deal of social energies precisely because network infrastructures invite ordinary people to invent their own systems of provisioning based on local needs and niche preferences.  Sharing and collaboration are becoming common-sense norms.

This shift in basic economic structures entails a move away from a logic of scarcity (e.g., the artificial constraints of copyright and patents on non-rival information) to a logic of abundance (where information, culture, research, etc. can be shared at virtually no cost).  This shift is also making social, ethical and personal relationships more important in economic life, enabling us to escape from the prevailing fiction of homo economicus as the human template for policymaking, to more complex, humanistic and culture-specific concepts of economic behavior.  As a socio-economic paradigm, the commons accurately depicts much of the collaborative activity now occurring digital networks:  self-determination as the basis for a new political economy.  However, prevailing (archaic) legal regimes tend to ignore or criminalize commoning, thwarting a faster, fuller transition to the next economy.

The Purpose of This Memo 

This strategy memo is a first attempt to survey the more significant realms of commons-based legal innovation occurring today.  Besides providing a rough inventory of more than sixty projects and theaters of legal innovation, I wish to propose that these disparate initiatives be conceptualized as a new strategic framing, “Law for the Commons.”  The essential goal of this body of law is to develop novel legal forms that can incubate, maintain and defend commons.  A related goal is to use the banner of “Commons Law” to help federate isolated players in this sprawling, emergent realm (commons-based social and political struggle) to strengthen their collective impact through the use of law.  If we’re serious about catalyzing systemic change, we need to start articulating a coherent vision and provide specific legal and policy mechanisms for achieving it.  In that respect, this memo complements the intentions of the P2P Foundation’s Commons Transition website (www.commonstransition.org).

Declaring the existence of a new realm of inquiry known as Law for the Commons could also have important secondary effects.  It could provide a clearer, more muscular vision of change for the many political movements seeking to create a “new economy.”  It could provide a shared focal point for the Solidarity Economy, co-operatives, the Transition Town movement, peer production, indigenous peoples, and many others to coordinate their post-capitalist activist strategies.  By providing better forms of direct self-governance and access to resources for basic needs, Law for the Commons can also help advance the interests of women and marginalized minorities for whom access to state law, enforcement and support may be problematic.[3]  These movements all seek to achieve systemic changes in production, state policies, governance, the fetish of economic growth and the culture of consumerism, especially as they relate to the environment and the quality of everyday life.  A new field of Law for the Commons could help consolidate and loosely coordinate the diverse initiatives now unfolding, and give them greater focus and visibility as kindred endeavors.

This memo therefore provides an introduction to commons-based law as a distinct field of policy research, legal innovation and activism.  It seeks to show how such a body of law could catalyze new (transformational) types of dialogues, collaborations and cross-movement fertilization of ideas.  It could also help jolt existing legal scholarship, advocacy and activism out of their well-worn ruts – i.e., their fixation on state policymaking structures and law as the primary engines of change – and challenge them to pursue a more ambitious, bottom-up agenda for change.

The many varieties of commons-based law described below are quite different from each other; some might consider them too disparate to be related at all.  But I believe they all attempt to enable commoning and/or prevent market enclosures.  A familiar concept in eighteenth century English commons was the idea of “beating the bounds.”  Every year the town’s commoners would host a community festival that consisted of walking the perimeter of the shared forest or pasture, identifying any hedges or walls that had enclosed the land for private gain – and then knocking them down.  The event was an effective but convivial way of asserting the community’s identity and governance, and protecting the shared wealth, and identifying and punishing vandals and free riders.

The strategic focus of many contemporary social movements is, in effect, to devise new methods (legal, technological, social) for beating the bounds.  But the recurring patterns of this commons-based legal innovation goes largely unrecognized – perhaps because this work is seen through the lens of neoliberal economics and policy and therefore dismissed out of hand; or perhaps because so many American activists continue to have a blind faith in the efficacy of governance institutions created in the eighteenth century; or perhaps because a new commons-based political culture has not sufficiently coalesced and therefore many people cannot see its transformational potential.

The problem may also be that commons-based law is not seen as a philosophical or strategic departure from the status quo because it continues to “play ball” with established, state-based forms of law.  But that is often both tactical feint and political necessity in the service of playing a “longer game.”  The whole point of instigating a new discourse of commons-based law is to reframe and reorient people’s perspectives.  It is to emphasize that new forms of self-governance – social, informal and evolving in character – point toward a different vision of political economy, law and culture.  It is use a different language to showcase new approaches that can be more effective, trusted and dynamic than the (tired, less effective) solution-sets that the liberal polity is offering.

That’s the primary reason that I have compiled here the many types of commons-based legal innovation now underway – to point to distinct patterns of legal innovation that offer promising strategic opportunities.  More grandly, I like to think that the forms of commons-based law described below constitute a powerful (if underdeveloped) force for re-imagining governance, economics, politics and social practice in systemic ways.

[1]  Thus, commons sometimes aspire to work with a partner state (to the extent that the state can deal in good faith) and in other ways commons simply seek defensible legal work-arounds that require no active support from the state.  This amounts to a “particle-and-wave” political choice that deserves further theoretical analysis.

[2]  Jeremy Rifkin, The Zero Marginal Cost Society (Palgrave Macmillan, 2014); Paul Mason, Post-Capitalism:  A Guide to Our Future (2015, UK); Michel Bauwens, Network Society and Future Scenarios for a Collaborative Economy (Palgrave Macmillan, 2014); and Yochai Benkler, The Wealth of Networks (Yale University Press, 2006).

[3]  As feminist historian of the commons Silvia Federici has written, “The social function of the commons was especially important for women, who, having less title to land and less social power, were more dependent on them for their subsistence, autonomy and sociality.” Medieval witch-hunts were often directed at women who resisted enclosures of their commons.  Jessica Gordon Nembhard’s recent book, Collective Courage:  A History of African American Cooperative Economic Thought and Practice describes the critical role that self-provisioning and -governance through cooperatives played in the emancipation of African Americans.

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Posted in Commons, Commons Transition, Copyright/IP, Culture & Ideas, Ethical Economy, Featured Essay, Open Content, Open Models, Original Content, P2P Legal Dev., Peer Property, Sharing | No Comments »

The Commons and EU Knowledge Policies

photo of David Bollier

David Bollier
2nd September 2015


Commons-Network-cover-820x400

One of the great advantages of a commons analysis is its ability to deconstruct the prevailing myths of “intellectual property” as a wholly private “product” – and then to reconstruct it as knowledge and culture that lives and breathes only in a social context, among real people.  This opens up a new conversation about if and how property rights in knowledge should be granted in the first place.  It also renders any ownership claims about knowledge under copyrights and patents far more complicated — and requires a fair consideration of how commons might actually be more productive substitutes or complements to traditional intellectual property rights.

After all, it is taxpayers who subsidize much of the R&D that goes into most new drugs, which are then claimed as proprietary and sold at exorbitant prices.  Musicians don’t create their songs out of thin air, but in a cultural context that first allows them to freely use inherited music and words from the public domain — which future musicians must also have access to. Science can only advance by being able to build on the findings of earlier generations.  And so on.

The great virtue of a new report recently released by the Berlin-based Commons Network is its application of a commons lens to a wide range of European policies dealing with health, the environment, science, culture, and the Internet.  “The EU and the Commons:  A Commons Approach to European Knowledge Policy,” by Sophie Bloemen and David Hammerstein, takes on the EU’s rigid and highly traditional policy defense of intellectual property rights.  Bloemen and Hammerstein are Coordinators of the Berlin-based Commons Network, which published the report along with the Heinrich Böll Foundation.  (I played a role in its editing.)  The 39-page report can be downloaded here — and an Executive Summary can be read here.

“The EU and the Commons” describes how treating many types of knowledge as commons could not only promote greater access to knowledge and social justice, it could help European economies become more competitive. If EU policymakers could begin to recognize the generative capacities of knowledge commons, drug prices could be reduced and climate-friendly “green technologies” could be shared with other countries. “Net neutrality” could assure that startups with new ideas would not be stifled by giant companies, but could emerge. And scientific journals, instead of being locked behind paywalls and high subscription fees, could be made accessible to anyone.

Bloemen and Hammerstein write that:

many of the economic and legal structures that govern knowledge and its modes of production – not to mention cultural mindsets – are exclusionary. They presume certain modes of corporate organization, market structures, government investment policies, intellectual property rights and social welfare metrics that are increasingly obsolete and socially undesirable. The European Union therefore faces an urgent challenge: How to manage knowledge in a way that is socially and ecologically sustainable? How can it candidly acknowledge epochal shifts in technology, commerce and social practice by devising policies appropriate to the current age?

EU policies generally focus on the narrow benefits of IRP-based innovation for individual companies and rely on archaic social wellbeing models and outdated models of human motivation. The EU has failed to explore the considerable public benefits that could be had through robust, open ecosystems of network-based collaboration. For example, the EU has paid little serious attention to the enormous innovative capacities of free, libre and open source software (FLOSS), digital peer production resulting in for example Wikipedia, open design and manufacturing, social networking platforms, and countless other network-based modes of knowledge creation, design and production.

Here’s a useful chart that summarizes key principles of the commons, policy designs, and outcomes that could be pursued through a knowledge commons agenda.

The report concludes with an agenda that the EU (or any government) could adopt to promote knowledge commons.  It includes such ideas as non-exclusive licensing of research so that biomedical innovations could have greater impact and more benefit for taxpayers; new support for knowledge commons through such things as patent pools, data sharing, the sharing of green technologies, and biomedical prizes that would make discoveries more widely available.  Muiltilateral trade treaties could be designed to promote investment in R&D and knowledge sharing among countries, producing enormous social benefits for people through expanding the global knowledge commons.  Net neutrality policies for the Internet could have similar catalytic benefits.

Will the EU stand in the way of the “collaborative economy” that is emerging, giving protectionist privileges to the big, politically connected digital corporations – or will it stand up for the great benefits that can be generated through open platforms, collaborative projects and knowledge sharing?  It’s great that this new report is stimulating this long-overdue debate.

For a broader overview of how the commons is going mainstream in Europe – most notably, via the new commons Intergroup in the European Parliament — here’s an insightful article by Dan Hancox that recently appeared in Al Jazeera English.

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Posted in Activism, Commons, Commons Transition, Copyright/IP, Culture & Ideas, Ethical Economy, Featured Essay, Open Access, Open Content, Open Models, Original Content, P2P Development, P2P Ecology, P2P Healthcare, P2P Legal Dev., Peer Property, Politics | No Comments »

Essay of the Day: Italian Precarious Workers Between Self-Organization and Self-Advocacy

photo of Michel Bauwens

Michel Bauwens
29th August 2015


* Essay: “Inspire and conspire”: Italian precarious workers between self-organization and self-advocacy. Annalisa Murgia and Giulia Selmi. Interface: a journal for and about social movements, Volume 4 (2): 181 – 196 (November 2012)

From the abstract:

“The scenario we see today in the labor market in Italy is composed of a progressive proliferation of non-standard contracts. This involves first and foremost a problem of citizenship and welfare, due to the lower or almost nonexistent possibility of access to social rights associated with these types of contracts. Faced with this situation, over the last ten years, Italy has seen the emergence of a complex social movement to counter precariousness. This movement at first concentrated its efforts in the rewriting of the symbolic vocabulary and imagination at work, in an attempt to consolidate the precarious as a collective subjectivity beyond its traditional representations.

In recent years, however, this process of “self-representation” in terms of a collective narrative is matched by a process of “self-advocacy”: an effective self-organization of temporary workers to handle the conflict in the workplace. In a scenario of no confidence in political parties and trade unions in addressing the issue of precariousness, these movements refuse the delegation of the conflict, promoting instead a modality of action based on the organizational form of the network, sharing knowledge and direct representation. This paper explores two particular movement experiences in the Italian context.”

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Posted in Featured Essay, P2P Labor | No Comments »

Feminist Theory and Free Software

photo of Michel Bauwens

Michel Bauwens
25th August 2015


Excerpted from Katja Mayer and Judith Simon:

“Feminist scholars and feminist expertise are rarely mentioned in the context of FS studies, and if so, relating mainly to topics such as the “gender gap” (Kelty 2008) or the “coproduction of gender and technology” (Faulkner 2001; Oudshoorn et al 2004)3. However, we claim that instead of merely assessing the gender ratios in the free software community, feminist theory can help to better understand the epistemology of free software – or more precisely the entanglement of epistemology, ethics and ontology; of knowing, being and acting. That is, while we agree that the free software movement has had profound effects on the epistemic practices involved in software creation, i.e. the ways in which software if produced, improved and modified collectively, it is insufficient to focus only the epistemic dimension. Instead, a performative understanding of knowledge requires us to understand and account for the fact that epistemic practices are inherently ethical practices because a) instead of merely representing what is there, they are also generative and b) they may have differential effects on different agents.

Feminist theoreticians have proposed a broad and diverse range of epistemologies.

Yet, there are two aspects that are prevalent and particularly conducive to understand the epistemology of free software:

a) the performativity of epistemic practices and

b) the entanglement of epistemology, ontology and ethics.

One approach that appears particularly useful for apprehending FS is Karen Barad’s “agential realism” (AR) (2003, 2007), an “[…] epistemological-ontological-ethical framework that provides an understanding of the role of human and nonhuman, material and discursive, and natural and cultural factors in scientific and other social-material practices” (Barad 2007:26).

Departing from Niels Bohr’s unmaking of the Cartesian dualism between objects and subjects in quantum physics, Barad challenges dualistic understandings of subject-object, nature-culture, human-technology. Reality, in Barad’s understanding, is a verb rather than a noun, it is a process in which the observer, the observed, the practices, methods and instruments of observation are entangled and intra-act with one another. This radical shift forces her to rethink and reconsider received meanings of notions such as agency, materiality or discourse.

Apart from her non-dualistic perspective, another aspect of Barad’s approach is of particular importance for the understanding of FS we propose: her defense of performativity over representationalism. Both terms are meant to denote different ways of understanding the relationship between reality and discourse. While in representationalims discourse is meant to merely represent the world out there, Barad’s posthumanist performativity acknowledges the interrelation between discourse and materiality, between knowing, acting and being. “Agential realism is not about representations of an independent reality but about the real consequences, interventions, creative possibilities, and responsibilities of intra-acting within the world.” (Barad 1998: 8).

So far so good – but hasn’t the FS community always been about reality shaping? Aren’t FS activists the perfect agential realists? After all, isn’t FS all about shaping and changing reality through material-discursive practices? The crucial twist that we need to take in understanding the critical power of FS as well as some of its (potential) failures consists in taking power seriously. Power asymmetries, power effects – and their ethical counterparts injustices, biases, discrimination have been core topics in feminist theory. Concordant with Foucault and Butler, Barad argues that “power is not an external force that acts on a subject; there is only a reiterated acting that is power in its stabilizing and sedimenting effects” (Barad 2007: 235). Yet, a crucial aspect of AR consists in emphasizing the material dimension of power. Power refers to “overall materializing potential “ (Barad 2007:230), i.e. it must be thought of terms of who/what matters and who/what is excluded from mattering. Accordingly, power asymmetries refer to differences in materializing potential, to differences in matter/ing amongst human and non-human agents within socio-material practices.

As a performative and critical theory, AR emphasizes the possibility to reconfigure who/what comes to matter as well as the responsibility to act in case of unjust power asymmetries/injustices (Barad 2007:35).

Combining such a performative material-discursive understanding of power with the acknowledgement of the fundamental entanglement of epistemology, ethics and ontology opens the possibility for an “ethics of mattering”. If we concede that acting, knowing and being are related, but that different agents have different chances of mattering, then this implies a duty to watch out for injustices or marginalizations with respect to the potentials for mattering. Acknowledging our intra-relatedness, we need to critically engage in material-discursive practices in order to reconfigure the socio-material topology of which we are part in case of injustices with respect to mattering. If we agree upon the necessity to critically engage in material-discursive practices, which strategies can be used for these reconfigurations? How can we engage to change socio-technical epistemic environments for the better? We think that Helen Longino’s norms for transformative criticism can offer some guidance (even if Longino focuses merely on the social dimension while neglecting the socio-material entanglement).

In her book “The fate of knowledge”, Helen Longino develops a socio-epistemological approach that is […] responsive to the normative uses of the term knowledge and to the social conditions in which scientific knowledge is produced (Longino 2002: 1). In her analyses of epistemic practices Longino strives to be descriptively adequate– a goal that Kelty also stresses in his conclusions – but she moreover emphasizes the normative component of epistemology: i.e. epistemology goes beyond just assessing how knowledge practices are conducted but it also draws conclusions on how knowledge practices should be conducted.

To understand Longino’s social epistemology, it is important to note that “social” does not denote common, collective, or shared, but rather should be understood as interactive. The crucial sociality of knowledge lies in being in a dialogue about issues at stake; it is about interacting in producing situated, partial and provisional knowledge that is bound to revisions, debate, and critical questioning. This interactive aspect is also visible in her definition of knowledge as epistemically acceptable content. According to Longino “(s)ome content A is epistemically acceptable in community C at time t if A is or is supported by data d evident to C at t in light of reasoning and background assumptions which have survived critical scrutiny from as many perspectives as are available to C at t, and C is characterized by venues for criticism, uptake of criticism, public standards, and tempered equality of intellectual authority (Longino 2002c: 135)”.

It should become obvious from this definition, that the community of knowers is the central focus of attention in Longino’s social epistemology. This is not too surprising given that only through a communal process of reviewing, criticizing and finally vetting epistemic content, knowledge can be created, i.e. knowledge depends on effective socio-rational processes. The crucial term here is “effective” and by Longino already offers the criteria, which distinguish effective communities from their ineffective counterparts: venues for criticism, uptake of criticism, public standards, and tempered equality of intellectual authority.

These four criteria are explicated in Longino’s four norms for effective transformative criticism, which she proposes as ideals that communities should strive for if they wish to improve their knowledge-producing capacities.

“1. Venues. There must be publicly recognized forums for the criticism of evidence, of methods, and of assumptions and reasoning. […]

2. Uptake. There must be uptake of criticism. The community must not merely tolerate dissent, but its beliefs and theories must change over time in response to the critical discourse taking place within it. […] Uptake is what makes criticism part of a constructive and justificatory practice. […]

3. Public Standards. […] Participants in a dialogue must share some referring terms, some principles of inference, and some values or aims to be served by the shared activity of discursive interaction. […] A community‘s standards are themselves subordinated to its overall cognitive aims […] Finally, standards are not a static set but may themselves be criticized and transformed […] There is no particular act of adopting or establishing standards. […]

4. Tempered Equality. Finally, communities must be characterized by equality of intellectual authority. (Longino 2002: 129ff)”

* LEARNINGS

There are several crucial insights to be taken from Longino’s social epistemology. First of all, it is important to note that communities are essential for knowledge in a very fundamental sense: without communal evaluation of content, there is no knowledge. Second, communities differ with respect to their epistemic effectiveness and the better they are in adhering to the before mentioned norms, the higher the likelihood that they will end up generating different forms of knowledge. Third, (cognitive) diversity benefits epistemic processes and products. This point is particularly important, because it explains why having diverse communities of knowers is not merely an ethical, social or political nice-to-have, but epistemically beneficial.

We think that both Longino and Barad’s epistemologies offer valuable insights for a critique of the critical power of free software. First of all, Longino’s four norms for transformative criticism can serve as criteria to evaluate the FS community itself. To what extent does the FS community adhere to or strive for the fulfillment of these norms? Are there sufficient venues for criticism? Is there tempered intellectual authority? And how are the norms changing and transformed in regard to social dynamics and shifting standards (e.g. the transformation of OSS markets, uptake of mobile social media by social movements and its interest to regimes of control, …)? Secondly, Longino’s social epistemology convincingly shows that cognitive and epistemic diversity is an ethical just as much as an epistemological requirement for sound, well-functioning and effective epistemic communities in a learning society as paradigmatically denoted by the FS movement. How is FS dealing with diversity of epistemic cultures and different identity politics? Thirdly, Longino’s emphasis on the performative and productive value of norms explains why it may be essential to always and repeatedly relegate to certain paradigms, such as the freedoms, in order to incite and harvest the critical power of FS – norms can serve as tools for transformation.

Barad’s contribution has been to remind us that our practices of knowledge do not merely represent what is there, but shape and create what is and what will be there. While this insight may be almost trivial in the context of FS, where the generative power of epistemic practices is well understood, it may be nonetheless necessary to remind ourselves that in the process of producing new artifacts we also create new distinctions, new differences. And we may also create new biases or injustices. The reaction to this danger however, cannot reside in escapism – we do not have the possibility to back out and abandon this material-discursive mess. Even if our actions are neither independent nor innocent, we have duty to make expand our frames of analysis, to make accountable cuts (Suchman 2007), to engage in critical practices striving for just socio-material configurations.

A fundamental insight from both feminist theories concerns the role of power. Adopting a performative understanding of power as differential potential for mattering may sharpen our senses for what is at stakes if we focus on mere knowledge processes and give debates about the relationship between knowledge and power in FS a deeper and more profound meaning.

What else can such feminist approaches do for us in this debate? It can further focus our attention on the realization of transformational processes, especially in fluid socio-technical settings. We can follow the various enactments of epistemological, ontological and ethical entanglements in software culture, approach the “agential realism” (Barad) of the FS movement in terms of how it has changed over time and in specific configurations. Tracing strategies of keeping up inter- and intra-activity to gather “effective” communities, looking for their relationships within certain knowledge regimes.

“When it is rooted in culture, software development becomes a discipline distinct from engineering, and social and cultural values are invested in the work.” (Medosch 2005: 177). The FS movement has always transgressed disciplinary boundaries of traditional expertise and authority. It was understood that very valuable things could be produced collaboratively. Making valuable things easily accessible and sharable proved to be hazardous to conventional, rigid concepts of intellectual property and privacy. We can ask what we have learned so far from the FS culture, and how those learnings have manifested themselves in ever shifting environments, e.g. when masses of people are protesting against ACTA (Anti-Counterfeiting Trade Agreement) or SOPA (Stop Online Piracy Act), to demonstrate that they are not (radical) pirates, but active advocates of free access to certain cultural resources.

The “critical power” or to speak with Longino the “transformative criticism” of FS is more than just a “copyfight” (Kelty). It has already shown more potential then to “only” radically transform markets and content-sharing practices. The FS movement has touched and transformed our understanding and handling of knowledge. FS strategy has taught us how to keep and protect openness and interaction in many realms besides the digital, even though we see effects of commodification, control and closure everywhere. This is not necessarily always very “radical” (Kelty) or “revolutionary”, just because it is transformative.

The FS movement serves as an inspiration for transforming publishing, teaching, and scientific practices (cf. Kelty 2008), and it has stimulated the idea of peer production, free culture (Lessing 2004), free flows of information and free/open networks, and it has shown us the capacity to approach freedom as something in the making, as something mutable that must continuously be negotiated and adapted. Besides adding new challenges to traditionally institutionalized markets of knowledge production, it is about to co-transform norms of “socially robust knowledge” (Nowotny et al. 2001). We owe this – inter alia – to the constant and consequent demarcation of the values and norms coming with the terminology “free” – and its sensitivity for power constellations. Therefore, let us conclude our argument by stating that free software is a rich and challenging field to study how matters and meanings are mutually constituted. We agree with Kelty that free software is constantly “becoming”. With its transgression to free culture and similar practices it is not only problematizing relations of power and knowledge, it is coproducing and transforming them, code being just one of many socio-cultural practices it its context. It has the potential to reconfigure the socio-material topology of the very assemblage it is embedded in. Hence, the crucial questions are: how is it becoming? What are matters of concern? How to make a difference?”

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Essay of the Day: Quantifying the Value of Open Source Hardware Development

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Michel Bauwens
25th August 2015


* Article: Pearce, J.M. (2015) Quantifying the Value of Open Source Hardware Development. Modern Economy, 6, 1-11. doi: 10.4236/me.2015.61001. open access

From the abstract:

“With the maturation of digital manufacturing technologies like 3-D printing, a new paradigm is emerging of distributed manufacturing in both scientific equipment and consumer goods. Hardware released under free licenses is known as free and open source hardware (FOSH). The availability of these FOSH designs has a large value to those with access to digital manufacturing methods and particularly for scientists with needs for highly-customized low-volume production products. It is challenging to use traditional funding models to support the necessary investment of resources in FOSH development because of the difficulty in quantifying the value of the result. In order to overcome that challenge and harvest the current opportunity in both low-cost scientific equipment and consumer products, this article evaluates the following methods to quantify the value of FOSH design including: 1) downloaded substitution valuation; 2) avoided reproduction valuation and 3) market savings valuation along with additional benefits related to market expansion, scientific innovation acceleration, educational enhancement and medical care improvement. The strengths and weaknesses of these methods are analyzed and the results show that the methods are relatively straight-forward to institute, based on reliable freely-available data, and that they minimize assumptions. A case study of a syringe pump with numerous scientific and medical applications is presented. The results found millions of dollars of economic value from a relatively simple scientific device being released under open-licenses representing orders of magnitude increase in value from conventional proprietary development. The inescapable conclusion of this study is that FOSH development should be funded by organizations interested in maximizing return on public investments particularly in technologies associated with science, medicine and education.”

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Essay of the Day: Re-Commoning Food to Crowd-Feed the World

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Michel Bauwens
23rd August 2015


* Article: Transition towards a food commons regime: re-commoning food to crowd-feed the world. By JOSE LUIS VIVERO POL

From the abstract:

“This paper analyses the main fault lines of the industrial food system and the consequences of the absolute commodification of food. Then, using the food regime theory and exploring the developments in the industrial food system (mainstream) and the urban alternative food networks and rural food sovereignty movement (innovative niches), the author proposes a transition pathway (the re#commonification of food) towards a food commons regime in which primacy rests in its feature as human beings$ absolute need and the different dimensions of food are properly valued, in opposition to the corporate mono#dimensional valuation of food as a commodity. %n order to crowdsource this transition, this paper argues the food sovereignty movement and the need to grow together, beyond individual organisations, to knit a different and bigger food web capable of confronting the industrial food system for the common good. This ongoing transition that will span decades is to be steered by a tricentric governance system (urban and rural civic collective actions for food, partner states and social private enterprises) that enables access and promote food in all its dimensions through a multiplicity of open structures and sustainable peer#to#peer practices aimed at sharing, co#producing and trading food and knowledge. Unlike the market, the food commons are about cooperation, sharing, stewardship, equity, self#production, sustainability, collectiveness, embeddedness and direct democracy from local to global. shifting the dominant discourse from the private sphere to the commons arena will open up a whole new world of economic, political and societal innovations, not least the Universal Food coverage.”

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Essay of the Day: Transforming the Productive Base of the Economy Through Distributed Manufacturing

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Michel Bauwens
19th August 2015


* Article: Transforming the Productive Base of the Economy Through the Open Design Commons and Distributed Manufacturing. By George Dafermos. Journal of Peer Production, 2015

From a special issue of the JPP journal, dedicated to the FLOK Society Project proposals, which are now continued by the Commons Transition Project.

Summary:

“This policy document examines the application of social knowledge economy principles to the secondary sector of the economy, with an emphasis on manufacturing. The Introduction dissects the concept of the knowledge economy, highlighting the role of access to knowledge as the fundamental criterion for determining its character: In contrast to capitalist knowledge economies that block access to knowledge through the use of patents and restrictive IP rights, social knowledge economies use inclusive IP rights to provide free access to knowledge. In the next section, A critique of cognitive capitalism, we look at how the use of restrictive IP rights has been theoretically justified: In short, IP rights are supposed to promote innovation and productivity. However, the available empirical evidence on the effect of IP rights on innovation and productivity furnishes no such proof. On the contrary, looking at the way in which capitalist firms actually use IP rights reinforces the conclusion that they do not promote innovation, but are in fact hindering it.

The next section, Alternatives to capitalist models, introduces the FLOK (Free, Libre and Open Knowledge) model, which has emerged in the course of the last two decades as a powerful alternative to cognitive capitalism and describes briefly its main features: (a) the practice of free sharing of knowledge undergirding it, (b) the pervasive involvement of the surrounding community and (c) the use of the Internet as a platform for distributed collaboration.

In the follow-up section, Knowledge commons in the secondary sector of the economy, we illustrate the FLOK model and its features through two case studies based on the RepRap 3D printer and the Wikispeed car project, respectively, which are paradigmatic of how the secondary sector could be transformed in the direction of a post-fossil fuel economy through the development of distributed manufacturing structures enabled by the open design commons.

In the next section, General principles for policy making, we sum up the conclusions drawn from the case studies in the form of general policy principles, which, as the section demonstrates, are aligned with the international policy framework, as reflected in the universally-endorsed policy objective of developing a knowledge-based economy. The concluding section develops these policy principles into a set of policy recommendations for the development of a collaborative knowledge economy founded on the knowledge commons of science and technology.”

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Essay of the Day: The More-Than-Human Commons: commoning is caring

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Michel Bauwens
28th July 2015


A really excellent and well-written (draft) essay on the implications of the commons for how we relate to each other and to other natural beings:

* Source: The More-than-Human Commons : From Commons to Commoning. Patrick Bresnihan. Forthcoming Chapter in Space, Power and the Commons, Routledge.)

Excerpted from Patrick Bresnihan:

“Where the more-than-human commons departs from other interpretations is in recognizing how the starting point is not an individual subject separated from other people and the world around them, but a relational subject who is always already caught up in a world that is intimately shared . This understanding is not based on an ideal but on the materially and socially constituted relations and practices that tie humans and non-humans together within a particular collective or territory. If we talk of ‘use-rights’ in the commons then these must be contingent on ongoing participation in the production and care of the commons understood as the entire collective of humans, animals, artifacts, elements that are necessary to maintain life processes. This meaning can already be found in the roots of the word ‘commons’: ‘com’ (together) and ‘munis’ (under obligation). First, this tells us that the commons is produced together, reflecting our inter-dependence, the assumption that our world is already shared. Second, and arising from this, the obligation that such inter-dependence demands of us. The commons is not a ‘thing’ that we have access to because we hold a title deed or authorization, but something that is ours because we produce and care for it, because we common.”

The Social Commons as a perspective on the commons:

“A second perspective on the commons that has become popular within and outside the academy shifts attention away from the so-called ‘natural’ commons, focussing instead on the emergent possibilities of the ‘social’ or ‘immaterial’ commons. These include the knowledge and cultural commons (Hyde 2010), the digital commons and peer-to-peer production (Bauwens 2005) and the biopolitical commons (Hardt & Negri 2009). While the political perspectives that inform these analyses differ, they all assume an analytic distinction between the ‘immaterial’ commons and the ‘material’ commons. In his article ‘Two Faces of the Apocalypse’, for example, Michael Hardt describes the difference between anti-capitalist activists and climate change activists at the United Nations Climate Change Conference (COP 15) in Copenhagen (Hardt 2010). While the former insist that ‘another world is possible’, the latter adopt the slogan: ‘There is no Planet B’. Hardt traces these different political positions to their contrasting notions of the commons. On one hand, anti-capitalists consider the commons as a social/economic commons, representing the product of human labor and creativity, including ideas, knowledge and social relationships. On the other, environmental activists speak for the ecological commons, identified as the earth and its ecosystems, including the atmosphere, rivers, forests and forms of life which interact with them. Hardt argues that the former does not operate under the logic of scarcity, while the latter does. While the first perspective on the commons emphasizes the natural resources on which we all rely, the second emphasizes the social resources that have become increasingly central to contemporary forms of capitalist accumulation. In the first case, nature (commons) is a stock of bio-physical resources which, as Hardt identifies, is subject to the logic of scarcity, bringing us into the domain of liberal political economy and the institutions of formal and informal property rights. In the second, nature is no longer represented as a material background limiting human activity but becomes something malleable and infinitely reproducible, subject to re-combinant technologies and human creativity. This is the domain of neoliberal political economy and the fantasies of contemporary capitalist (re)production (Cooper 2007). The problem with this distinction is that we end up with one form of the commons that appears to be asocial (excluding the socially productive and reproductive labor of humans involved in caring for the ÔnaturalÕ resources they rely on), and another that appears to be anatural (excluding the material limits and properties of more-than-human bodies involved in the (re)production of the ‘social’ commons). While the distinction between the material/natural commons and the immaterial/social commons can be analytically helpful it tends to be over-stated, obscuring the continuity and inseparability of the material and the immaterial, the natural and the social.” (https://www.academia.edu/11778318/The_More-than-Human_Commons_From_Commons_to_Commoning)

The commons is not a resource, but a relation:

“A third perspective on the commons does not admit such a distinction and thus takes us in a different direction. From feminist scholars (Federici 2001; Mies & Bennholdt-Thomsen 1999, 2001; Shiva 2010; Starhawk 1982), geographers (Blomley 2008; St. Martin 2009) and historians (Barrell 2010; Linebaugh 2008, 2011; Neeson 1996; Thompson 1993) we learn that the commons was never a ‘resource’. The commons is not land or knowledge. It is the way these, and more, are combined, used and cared for by and through a collective that is not only human but also non-human. That the commons can continue to be identified as a ÔresourceÕ and not as a complex of relations between humans and non-humans attests to the long history of invisibility associated with Ònonrepresentational, affective interactions with other-than-humansÓ (De la Cadena 2010 : 346). The ÔinvisibilityÕ of peasant and indigenous cultures and forms of life has been well documented by historians and anthropologists (Brody 2002; Bird Rose 2006; De la Cadena 2010; Escobar 1995; Linebaugh 2008; Thompson 1993); colonialism begins with the erasure of any existing claims to territory or history on the part of those who are being colonized. The concept of terra nullius refers to the identification of ÔwasteÕ land, or land that has not been inscribed with human culture and production. This term was not just used in the conquest of territories in the ÔNew WorldsÕ but also in the enclosure of common lands, moors and heaths, that took place in Britain during the eighteenth century (Goldstein 2013). Silvia Federici, for example, argues that enclosure relies on the epistemological separation of the social and the natural spheres, the productive and the reproductive. She reads this separation-through-enclosure as something far more fundamental than simply the privatization of land. The relegation of ‘women’s work’ (childbirth, child rearing, cleaning, cooking, caring) to the domestic sphere outside of the ‘productive’ economic sphere represents the ‘naturalizing’ of this kind of labour : “[a]ll the labour that goes into the production of life, including the labour of giving birth to a child, is not seen as the conscious interaction of a human being with nature, that is a truly human acivity, but rather as an activity of nature, which produces plants and animals unconsciously and has no control over this process” (Mies 1998: 45). While reproduction is most often associated with human reproduction and the management of the ‘household’, from childbirth, to childcare and healthcare, cleaning and cooking, reproduction also extends beyond the confines of the house narrowly construed as four walls. Federici herself describes how her time in Nigeria observing and documenting the labor and activity of women in mostly subsistence economies led her to extend the notion of reproduction (Federici 2012): the household, or oikos, was not just a home or family but a wider sphere of communal reproduction that involved direct relations with the land, water, plants and animals, for exampleii. The conclusions that are drawn from these insights is that capitalist enclosure and biopolitical control necessarily involve the de-valorizing and ‘invisibilizing’ of those myriad, situated relations and practices of (re)production that exist between people and the manifold resources they rely on (De Angelis 2007; Federici 2001; Shiva 2010). What is significant is that this understanding of the commons focuses on the particular relations and practices that are characterize the commons as a different mode of (re)production.

As Peter Linebaugh explains, “[t]o speak of the commons as if it were a natural resource is misleading at best and dangerous at worst, the commons is an activity and, if anything, it expresses relationships in society that are inseparable from relations to nature. It might be better to keep the word as a verb, rather than as a noun, a substantive” (Linebaugh 2008: 279). This is why the noun ‘commons’ has been expanded into the continuous verb ‘commoning’, to denote the continuous making and re-making of the commons through shared practice. In this way the commons is not a static community that exists a priori or a society to come a posteriori but something that is only ever constituted through acting and doing in common. At the heart of this relational, situated interdependence of humans and non-humans is not an impoverished world of ‘niggardly nature’, nor an infinitely malleable world of Ôtechno-nature,Õ but a more-than-human commons that navigates between limits and possibilities as they arise (Bresnihan forthcoming). Nor is the more-than-human commons a pre-modern ideal that has been lost or marginalized. It arises wherever there is an immediate and intimate understanding that the world is shared, that human and non-human life is interdependent. This not an ideal norm but a materially and socially constituted reality that has been documented in many different settings (Linebaugh 2008; Scott 1990)

There are new fields of research that can help us to decipher what is going on in the more-than-human commons. These include the work of anthropologists examining indigenous cosmologies and relations with nature and territory (De la Cadena; Escobar 1999; Viveiros Castro 1998; Rose 2004), as well as post-humanist and vital materialist theory (Barad 2003; Bennett 2010; De la Bellacasa 2010, 2012; Papadopolous 2010, 2010a) that help shift the methodological and epistemological lens away from subjects and objects to the relata, the relations that constitute our world (Barad 2003). These rich literatures can help us disrupt the liberal humanist epistemologies that both individualize and place humans at the centre of world-making processes. In terms of the more-than-human commons this also means making an intellectual leap into contexts where social and material resources are already immediately and intimately shared between humans and non-humans.”

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Essay of the Day: Open Source Finance Hacking

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Michel Bauwens
27th July 2015


“The hacker drive for de-alienated self-empowerment throws up tricky issues. As people with a hacker impulse gain confidence, they can become increasingly intolerant towards conventions, but also towards institutions like large welfare systems, which are viewed as being alienating in their own way. When combined with the individualistic streak, this can make for a libertarian political impulse. At its best, that can be a left-leaning libertarianism concerned with how to empower the underdog from the bottom up, showing solidarity with those in less empowered positions, similar to anarchist mutual aid. In its negative incarnation, though, hacker culture can fetishise personal liberty, a conservative ‘don’t tell me what to do’ libertarianism associated with people who already have power and who do not particularly go out of their way to help spread it. We see this in the likes of libertarian activist Adam Kokesh, who says ‘fuck you’ to authorities, but without really offering much empathy to those who are not empowered, skilled, or connected enough to be as bold as he.”

* Article: Open source finance hacking: The potentials and problems. Brett Scott. Spanda Journal, Special Issue: Spanda Journal special issue on “Systemic Change”, VI, 1, June 2015. Edited by Helene Finidori.

This essay is part of a throroughly excellent special issue of the Spanda Journal on systemic change edited by Helene Finidori, In case of more interest for the issues in this essay contact the author at please contact the author at Twitter https://twitter.com/Suitpossum and or check the blog at: http://suitpossum.blogspot.co.uk/

An excerpt from the introduction, by Brett Scott:

“The global financial system is a notoriously opaque and alienating complex. The system is implicated in social injustice and ecological destruction around the world, and the key financial institutions, such as banks and funds, wield unhealthy levels of political power. The financial sector – that cluster of institutions that sit in the centre of the financial system – have at least five problematic dimensions.

Firstly, the financial sector routinely steers money into projects that are hardwired to breach planetary ecological boundaries. It is thus premised on ecological unsustainability. Secondly, it is an active agent of inequality. Not only do financial professionals reap outlandishly large salaries, but financial instruments like shares and bonds are conduits for powerful cartels of investors to direct money into the powerful corporate sector, often in ways that do not benefit ordinary people.

Thirdly, even if you do not believe that the sector creates inequality, it exhibits high levels of complexity and opacity, which, when combined with the fact that the system is highly interconnected, translates into high levels of systemic risk, the ability for financial crashes in one country to shake the entire global economy.

Fourthly, the sector hosts a particular culture of finance. This tends to be portrayed in the press by pictures of obnoxious traders swilling champagne, but the much deeper issue is the pervasive denial of agency and responsibility found in the sector: Financial institutions like to portray their profession as an apolitical agent of economic efficiency, rather than accepting the highly political nature of allocating credit and facilitating investment processes around the world.

Fifthly, there is the process called financialisation. In basic terms it is the creeping sense that the culture and drives of the financial sector are taking over many aspects of life previously untouched by it, turning everything into investable and tradable commodities. Thus, land and atmospheric pollution rights become parcelled into land investment funds and commodity investment baskets, while people’s life insurance policies get parcelled into structured investment products for hedge funds to speculate on.

These trends, when taken together, have a way of creating ever more alienating and obscure financial phenomena, which appear incomprehensible and uncontrollable to the average citizen. Take, for example, high-frequency algorithmic trading, portrayed by those involved as a force for rational efficiency, but creating hitherto unknown levels of systemic risk.”

* Discussion: Applying the concept of open source to finance

Brett Scott:

Open source culture thus might be a useful way of framing the initial broad changes we might want to see in the financial system. After all, we are stuck within a massively powerful incumbent system, and need to find ways to build anew from that starting point.

Software code is used to build rule systems that steer energy into activating hardware towards particular ends. So, extending this as an analogy, what might financial ‘code’ look like? A financial system, in a basic sense, is supposed to distribute claims on human energy and resources (‘money’), via financial instruments (often created by financial intermediaries like banks), into new economic production activities (‘investments’), in exchange for a return over time.

Here, for example, is a rough financial circuit: A person manages to earn a surplus of money, which they deposit into a pension fund, which in turns invests in shares and bonds (which are conduits to the real world assets of a corporation), which in turn return dividends and interest over time back to the pension fund, and finally back to the person.

Shares and bonds are extractive financial conduits that plug into a corporate structure, but if you look for how they are coded, you’d discover they are built from legal documents that are informed by regulations, acts of parliament, and social norms. They are supported by IT systems, payments systems and auxiliary services.

But it takes more than clearly-worded documentation to be able to create financial instruments. The core means of financial production, by which we mean the things that allow people to produce financial services (or build financial instruments), includes having access to networks of investors and companies, having access to specialist knowledge of financial techniques, and having access to information. It is these elements that banks and other financial intermediaries really compete over: They battle to monopolise relationships, monopolise information, and to monopolise specialist knowledge of financial techniques.

And indeed, that is why production of financial services mostly occurs within the towering concrete skycrapers of the ‘financial sector’, spinners of webs of financial code that is mostly unknown to most people. We have very little direct access to the means of financial production ourselves, very little say in how financial institutions choose to direct money in society, and very little ability to monitor them. We have, in essence, an intense concentration of power in financial intermediaries, who in turn reinforce and seek to preserve that power. And while I may be happy to accept a concentration of power in small specialist industries like Swiss watchmaking, a concentration of power in the system responsible for distributing claims on human society’s collective resources is not a good thing. It is systematically breaking our planetary hardware, whilst helping to fuel a culture of bland individualistic materialism in increasingly atomised communities.”

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Essay of the Day: Reconsidering the University Invention Ownership Model

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Michel Bauwens
24th July 2015


* Essay: Reconsidering the Bayh-Dole Act and the Current University Invention Ownership Model. By Martin Kenney and Donald Patton.

From the abstract:

“The current model within which universities own the inventions made by their researchers was enshrined in the Bayh-Dole Act of 1980. This paper finds that the current system, in which universities maintain de jure ownership of inventions, is not optimal either in terms of economic efficiency or in advancing the social interest of rapidly commercializing technology and encouraging entrepreneurship. We demonstrate that this model is plagued by ineffective incentives, information asymmetries, and contradictory motivations for the university, the inventors, potential licensees, and university technology licensing offices (TLOs). We suggest that these structural uncertainties lead to delays in licensing, misaligned incentives among parties, and delays in the flow of scientific information and the materials necessary for scientific progress. The institutional arrangements within which TLOs are embedded have encouraged some of them to become revenue maximizers.

We suggest two invention ownership models as superior alternatives to the conventional model. The first alternative is to vest ownership with the inventor, who could choose the commercialization path for the invention. For this privilege the inventor would provide the university 5 percent ownership stake in any returns to the invention. The inventor would be free to contract with the university TLO or any other entity that might assist in commercialization. The second alternative discussed is to make all inventions immediately publicly available through an open source strategy or, through a requirement that all inventions be licensed non-exclusively. Both alternatives would address the current dysfunctional arrangements in licensing university technology .”

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