Legal Innovations in Beating the Bounds: Part II of Law for the Commons


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Below, a continuation of yesterday’s post from the strategy memo, “Reinventing Law for the Commons,” Part II of the four-part piece.

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

Part II surveys the enormous amount of legal innovation going on in various commons-related fields of action.  The point of this section is to identify specific initiatives that are trying to transform the legal paradigm or carve out new “protected zones” of enforceable rights within existing legal frameworks.  I have identified nine major “clusters” of interesting experimentation and ferment:

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

Today’s post focuses on the first four “clusters”; tomorrow’s deals with #5 through #9.  And the final day will deal with Part III:  The Strategic Value of Developing Law for the Commons, and Part IV:  Next Steps.

The list of clusters and examples in Part II is not comprehensive.  It is merely a first attempt to assemble the fragments of commons-based legal innovation into a new mosaic that makes key, unifying themes more visible.  (I invite readers of this memo to inform me of any worthy additions by contacting me at david/at/  Some examples may belong in two or more clusters, which I’ve tried to indicate with cross-references.  In Part III, I will reflect on the political and philosophical implications of the examples of Part II, followed by a discussion in Part IV of practical steps that might be taken to consolidate and extend Law for the Commons as a coherent body of legal activism.

Most of the examples in Part II are attempts to secure new legal recognition, support or protection for various sorts of commons through statutes, court rulings, public policies, municipal ordinances, or private law “hacks” of existing bodies of law.  Some attempt to use digital technologies and new organizational forms to reinvent governance and reliably enforce commons-based rules.  A separate class of projects is seeking to reinvent or realign state authority, an effort that is obviously a more visionary, mid-term proposition.

1.  Indigenous Commons

The legal rights of the world’s 300 million indigenous peoples[1] is of particular interest to commoners because both face similar philosophical and strategic challenges in coming to terms with (unresponsive, sometimes hostile) national and international law.  In that sense, the legal fights of indigenous peoples may be a bellwether for commoners and a source of guidance.  In general, indigenous peoples are seeking to protect their own distinctive identities, collective resources, cultural commitments to collective law (both formal and informal) and to group stewardship of resources.  Some of the more contested aspects of indigenous peoples law include conflicts with nation-states over self-determination (vs. state sovereignty); the preservation of cultural traditions (vs. western consumerism); the preservation of their languages and agroecological practices (vs. intellectual property rights); and compensation (or repatriation) for theft of collectively shared land and property (vs. conventional claims of individual property rights).[2]

Biocultural rights represent a new legal jurisprudence that aims to protect natural ecosystems and indigenous knowledge and ways of life, especially from the threats of trade treaties. The rights – based on the 1993 Convention on Biological Diversity, which has been ratified by 193 nations – have been developed by legal advocates such as Natural Justice in South Africa to give legal protection to a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape.  This bold departure in human rights law gained particular momentum during negotiations over the Nagoya Protocol, at which African countries supported the idea of “biocultural community protocols” as community-led instruments for recognizing and supporting “ways of life that are based on the sustainable use of biodiversity, according to customary, national and international laws and policies.”

Kabir Sanjay Bavikatte, a cofounder of Natural Justice, writes:  “The emergence of biocultural rights forces a rethink of the conventional understanding of property as private property. Instead biocultural rights make a case for the right to commons by arguing that property need not be perceived purely as a thing that one has absolute rights over, but can also be viewed as a network of use and stewarding relationships amongst a number of rights holders. Within a rights discourse, biocultural rights can be contextualized as a subset of the third-generation group solidarity rights. The notion of stewardship is critical for a discourse of biocultural rights, for it provides the ethical content for these rights – whereby rights to land, culture, traditional knowledge, self-governance, etc. are informed by a set of values that are not anthropocentric but biocentric.”  [3] Bio-cultural rights are still a nascent legal concept, but variations on the idea have been incorporated into a number of international treaties and they have a solid grounding on many familiar legal principles.

A major international effort to facilitate “fair and equitable exchanges” of indigenous knowledge and culture is directed by the Intellectual Property Issues in Cultural Heritage (IPinCH) research project, an international collaboration of archaeologists, indigenous organizations, lawyers, anthropologists, ethicists, policy makers, and others.[4] Based at Simon Fraser University in British Columbia, Canada, IPinCH explains that its focus is on “archaeology as a primary component of cultural heritage; however, this project is ultimately concerned with larger issues of the nature of knowledge and rights based on culture – how these are defined and used, who has control and access, and especially how fair and appropriate use and access can be achieved to the benefit of all stakeholders in the past.”  The project includes fifty researchers and twenty-five partnering organizations from Canada, Australia, United States, New Zealand, South Africa, Germany, England, and Switzerland.

The Potato Park is a sui generis legal regime that empowers indigenous Quechua indigenous peoples in an area near Cusco, Peru, to act as stewards of a rich biodiversity of more than 900 genetically distinct potatoes that they have managed for millennia.  The Quechua joined with a nonprofit group ANDES in the 1990s to develop a legal regime to recognize the Indigenous Biocultural Heritage Area (IBCHA), 12,000 hectares of traditional lands that the Quechua regard as essential to the agrobiodiversity of the region and to conserve their traditional culture, knowledge and livelihoods.  Besides assuring a community-led and rights-based approach to conservation (rather than market development), the Potato Park seeks to prevent biopiracy of genetic knowledge by agro-biotech corporations. Although the Potato Park does not have state recognition within either Peruvian national law of the International Union for the Conservation of Nature, the IBCHA agreement is legally compatible with existing systems of national and international law, and is seen as an inspiration for similar projects to protect agrobiodiversity in the Andes.[5]

The Traditional Knowledge Digital Library (TKDL) is an India-based database launched in 2001 that documents the knowledge and usage of traditional biomedical knowledge, plants and practices such as yoga, so that such knowledge cannot be patented.[6]  The goal of the project, as its website explains, is to “give legitimacy to existing traditional knowledge and enable protection of such information from getting patented by the fly-by-night inventors acquiring patents on India’s traditional knowledge systems. It will prevent misappropriation of Indian traditional knowledge, mainly by breaking the format and language barrier and making it accessible to patent examiners at International Patent Offices for the purpose of carrying out search and examination.”

Although defensive in character, aimed at preventing market enclosures of traditional knowledge, TKDL points toward more affirmative legal strategies for protecting useful agricultural or scientific knowledge as a commons.  One example is the release of Open Source Seed Initiative (see section #5 below).  Others include open-source-inspired technologies and licenses developed by the Australian nonprofit research institute CAMBIA and its BiOS project (“Biological Innovation for Open Society”),[7] and the biohacking / DIY biology movement that is devising commons-based systems for the responsible, ethical and safe research in synthetic biology.[8]

2.  Subsistence Commons in the Global South

There are many subsistence commons (not necessarily managed by indigenous peoples) that rely upon self-governed access and use of forests, fisheries, farmlands, coastal lands, bodies of water, wild game, and other natural resources.  As mentioned earlier, an estimated two billion people around the world depend on natural resource commons for their everyday (nonmarket) needs.[9]  It is not only important to protect these vital subsistence commons from enclosure, but to improve their governance and functioning.  This may require certain legal frameworks or selective, light-touch state support to help regularize self-governance; it may require new types of local dialogues and collaboration to get beyond entrenched corruption, patriarchy and adversarialism.

Subsistence commons in India may be the largest, most salient arena in which state law has formally recognized commons qua commons.  This stems from a landmark ruling by the Indian Supreme Court in 2012 that legally recognized subsistence commons and ruled against a real estate developer whose buildings had enclosed a village pond functioning as a commons.  The political and legal repercussions of this ruling are still reverberating in India, but it is symbolically and perhaps substantively an important legal victory for commoners trying to protect their traditional, collective uses of forests, farm land, bodies of water and other “unowned” resources long regarded by conventional law as “wastelands.”  The Indian commons advocacy group, the Foundation for Ecological Security (Jagdeesh Rao, director), is actively tracking the dozens of judgments and orders about the commons that have since emerged from Indian courts and state governments.  (See its biomonthly e-publication, “The Case for the Commons.”)

The Forests Act in India (1997) is one of the more significant legislative acts authorizing commons-based management of forests.  The Act explicitly empowers village panchayats to act as commons-based stewards of forests, an authority that has not been faithfully respected by the government’s Forest Department.  Still, many panchayats have mobilized to assert their authority to manage village forests as a more effective traditional method of conservation and stewardship.[10]  It is therefore a active “contested zone” that often pits conventional bureaucratic authority and expertise against participatory governance and local knowledge.

Land tenure systems that recognize subsistence commons could help stop the massive global land grab now underway in the global South (an estimated 8.54 million hectares), which is destroying tens of thousands of commons that people have relied upon for generations.  There are, fortunately, some efforts to formally recognize customary rights to land use, which could be helpful in resisting the investor-privileged terms of national laws and international treaties. Liz Alden Wiley, a land reform expert and specialist based in Africa, reports:  “In light of the fact that most allocations to investors are in the form of renewable medium-term leases of up to 99 years, it may be expected that loss of common properties will remove these lands from meaningful access, use and livelihood benefit for at least one generation and potentially up to four generations.” This is a recipe for decades of famine, poverty, political turmoil and additional forms of fossil-fuel-intensive “development.”  Wiley and others are pushing for legal reforms of the sort adopted by some African and Latin America states, which do not require property rights in land to be fungible, based on individual ownership, or formally registered in order for land to be recognized as real property.[11]

Cooperative governance of public forests in Oregon.  For decades the timber industry in the US did great harm to forest ecosystems through the clear-cutting of forests, re-seeding with tree monocultures, and the building of roads – all with the sanction of the US Forest Service. The political and legal hostilities between environmentalists and the timber industry reached a peak in the Pacific Northwest of the US in 1991, when a federal court shut down timber operations in the entire region.  In the aftermath, the US Forest Service improbably initiated a remarkable experiment in collaborative governance for the Siuslaw National Forest. As told by the film “Seing the Forest,”[12]the government abandoned its standard bureaucratic processes, which were generally driven by congressional politics, industry lobbying and divisive public posturing.  Instead it convened a “watershed council” of the region’s stakeholders and anyone who was interested in participating.  The goal was to manage the forest through an informal process of open commoning, which included the all-but-formal power to allocate federal funds, with the Forest Service hovering in the background as the final arbiter.  It took many years, but the informal dialogues and pragmatic, consensus-based decisionmaking resulted in a significant restoration of the forest ecosystems and a radically different mindset toward forest stewardship.  This history raises an urgent socio-legal challenge:  How to adapt formal state law and regulation to authorize new sorts of locally empowered decisionmaking and commoning?

The System of Rice Intensification (SRI) is an agro-ecological system for improving the productivity of irrigated rice by changing the mix of plants, soil, water, and nutrients.  While SRI is not a system of law, it is a self-organized social network of farmers in several dozen countries that has been tremendously empowering and productive.  SRI collaborations in cyberspace have helped farmers boost rice yields by 20 to 100%; reduce the seed required by 90%; and reduce water usage by up to 50%. The project is notable for blending the use of online platforms with physical resource management – a trend exemplified by other “eco-digital commons.”[13]

3.  Digital Commons

Open networks are a natural hosting infrastructure for commons.  As augmented by commons-generating governance, rules, social practices, etc., open platforms have spurred a vast proliferation of rich and varied commons.  The more notable ones include free and open source software, Wikipedia in dozens of languages, more than 10,000 open access scholarly journals, the open educational resources movement (OpenCourseWare, open textbooks, etc.), the open data movement, open design and manufacturing commons, and much else.  A recurring challenge for people working on open networks is to find ways to prevent businesses from treating the shared resources of commoners – code, information, images, videos, product design, etc. – as “free” feedstock for their proprietary market machines.  For-profit corporations can mobilize enormous capital and other resources to convert socially generated wealth into marketable products and service, essentially privatizing the shared community wealth or at least its market rewards.

A variety of legal and technological innovations are now starting to address the structural limits of open platforms as vehicles for commoning.  Among the more prominent initiatives:  new types of copyright-based licenses to protect commons and new digital architectures and software systems that provide a “network-based polity” for consensual governance, production and allocating benefits.  One example of the latter are new systems that democratize the ability of collectives to authenticate digital identity without having to rely on Google, Facebook, and other tech giants who use their power to data-mine people’s personal information.  Other examples include digital currencies that enable communities to capture and manage the value that its members create; “smart contracts” that enable self-executing contractual agreements on networks; a system of open-source modules of legal boilerplate that can be used on open platforms to minimize the need for expensive lawyers; and data-sharing commons that allow only stipulated usage of shared pools of data.  Below, a brief review of these new commons-friendly legal innovations in digital spaces.

Copyright-based licenses have long and respected history in digital spaces, of course, starting with the General Public License that originally enabled free software (especially Linux), and moving on to the Creative Commons licenses in 2003, among dozens of variants.  To deal with the corporate appropriation of work from open platforms, the P2P Foundation, working with Primavera De Filippi, Lionel Maurel and others, are seriously exploring the idea of “commons-based reciprocity licenses” that would allow no-cost sharing among members of a commons, but require payment by any commercial  users of the community’s work.[14]  Unlike the Creative Commons NonCommercial license, which absolutely stops commercial development of a line of information or creative work, the CopyFair license would allow commercialization, but on the basis of mandatory (monetized) reciprocity.

The blockchain ledger, a software innovation that lies at the heart of Bitcoin, is a breakthrough that could be of enormous importance to the future of commoning on open network platforms.  Although Bitcoin itself has been designed to serve familiar capitalist functions (tax avoidance, private accumulation through speculation), the blockchain ledger is significant because it can enable highly reliable, versatile forms of collective action on open networks.  It does this by validating the authenticity of a digital object (for now, a bitcoin) without the need for a third-party guarantor such as a bank or government body.

This solves a particularly difficult collective-action problem in an open network context:  How do you know that a given digital object — a bitcoin, a legal document, digital certificate, dataset, a vote or digital identity asserted by an individual – is the “real thing” and not a forgery?  Blockchain technology can help solve this problem by using a searchable online “ledger” that keeps track of all transactions (i.e., bitcoins). The ledger is updated about six times an hour, each time incorporating details of the latest transactions (the “block”) into the ledger – a record that is shared by everyone on the network using the Bitcoin software. The ledger acts as a kind of permanent record maintained by a vast distributed peer network, which makes it far more secure than data kept at a centralized location. The authenticity of a given bitcoin is assured because it’s virtually impossible to corrupt a ledger that is spread across so many nodes in the network.

A recently released report suggests that blockchain technology could provide a critical infrastructure for building what are called “distributed collaborative organizations” (sometimes “distributed autonomous organizations”).[15]  These are essentially self-organized online commons.  A DCO could use blockchain technology to give its members specified rights within the organization, which could be managed and guaranteed by the blockchain.  This set of rights, in turn, can be linked to the conventional legal system to make those rights legally cognizable.

One rudimentary example of how the blockchain might be used to facilitate a commons:  former FCC Chairman Reed Hundt has proposed using blockchain technology to create distributed networks of solar power on residential houses coordinated as commons.  The ledger would keep track of how much energy a given homeowner generates and shares with others, and consumes.  In effect the system would enable the efficient organization of decentralized solar grids and a “green currency” that could serve as a medium of exchange within solar microgrids or networks, helping to propel adoption of solar panels.[16]  The blockchain amounts to a network-based architecture for enabling commons-based governance, which helps explain why the blockchain ledger was a topic of extreme interest at the Ouishare festival in Paris in May 2015.

A more generic aspect of this field of experimentation is smart contracts, which are dynamic software modules that may soon enable new types of group governance, decisionmaking and rules-enforcement on open network platforms.  We are already familiar with rudimentary – and corporate-oriented versions – of this idea, such as Digital Rights Management (DRM), an encryption/authentication system that attempts to constrain how users may use their legally purchased technologies (DVDs, CDs, etc.).  As the power of collaborative networks has become clear, some tech innovators have recognized that the real challenge is not how to lock up and privatize digital artifacts, but how to assure that they can be shared on open platforms in legally enforceable ways. Hence the many active efforts now underway to devise technical systems that would act as “smart” legal agents whose transactions would also be enforceable under conventional law.  (The “transactions” could, of course, be used to invent new types of markets, but they also could be used to create new types of commons; ultimately, the two realms may bleed into each other and create social hybrids that conjoin community commitments and market activity.)

Another variation on this theme is a Terms of Service contract for peer production that would turn the one-sided “contracts of adhesion” customarily used by websites, into a contract among multiple users to legally authorize peer sharing among themselves.  Thus instead of using a ToS to assert strict proprietary rights for business purposes, this envisioned ToS would assert legal terms for automatic access, use and sharing of collectively “owned” digital resources, perhaps with customizable options for specific needs.  This peer production ToS is now being developed by Intrinsic, a startup company that is building an open-source architecture for online collaboration.[17]

Yet another fascinating attempt to exploit open platforms to promote commons-based law is Common Accord, a fledgling project that is attempting to apply open source principles to the inefficiencies and costs of conventional lawyering.[18] The goal is to decentralize the writing of legal documents and empower users by developing a massive global inventory of standard legal forms, libraries of legal clauses and specific use-cases in civil law.  The many modular elements can then be mixed-and-matched by users to apply to their specific needs.  Specific legal modules would be rated, annotated and commented up by recognized legal experts, in an open-source fashion, helping to provide a measure of credibility and trust in the legal draftsmanship of legal documents.  While the system would not necessarily eliminate the need for a real lawyer in a given situation, it could automate, simplify and reduce the legal costs for many standard commercial and civil transactions.[19] Common Accord is also involved in devising machine-readable legal consent forms for contributors to peer production projects, such as open source software projects, data sharing by municipalities, patients who share their genetic information with hospitals and pharmaceutical companies, and musicians eager to collaborate on collective pieces of music.[20] Such collaborations are often plagued by legal terms that favor the data-using institutions and by incompatibilities among national legal systems and digital technical standards.

New software platforms to enable participatory online deliberation are experimenting with better ways to ascertain group opinion and critically discuss issues – a development that could have important implications for new types of governance.  The more notable experiments include Loomio,[21] DemocracyOS[22] and LiquidFeedback.[23]  The point of such systems is to enable direct, sustained and somewhat complicated discussions that can then clarify group sentiment and foster commitments that participants see as legitimate and meaningful.

Ubiquitous Commons, a project headed by Italians Salvatore Iasconesi and Oriana Persico, is attempting to overcome impediments to data-sharing in cities and develop better ways to use data to improve social research and governance.[24] Ubiquitous Commons is trying to develop new systems that can creatively use enormous flows of data on social networks and public databases for public purposes, especially via maps of urban spaces.  The idea is to enable citizens, city governments, scientists, health researchers and others to use dynamic data flows to understand actual social behaviors and design appropriate services and policies, while protecting individual privacy rights.  Prototypes have been launched in Rome, Sao Paulo, and New Haven, Connecticut.  The project has obvious implications for improving the quality of self-governance and participation.  Common Accord, mentioned above, is also involved in developing data-sharing agreements that are suitable for municipalities.[25]

FairCoop is a recently founded project closely related to Cooperativa Integrale Catalana (CIC), an “omni-commons” based in Barcelona (see section #8 below).  It is attempting to build a new set of free economic tools that will “promote cooperation, ethics, solidarity and justice in our economic relations.” FairCoop was founded by some CIC members (along with other partners) and it has taken over and improved an existing cryptocurrency, Faircoin, a descendent of an earlier digital currency, Peercoin. The basic idea of FairCoop is “to hack the foreign exchange market” by developing a new currency that fosters cooperation over private competition. (Faircoin relies less on “mining” new coins than on “minting” them in more ecologically responsible ways and distributing them to those who want them.)

The system aims to be “fractal” in character, meaning that “from the experience in the root platform, it can be moved and replicated at different regional and local scales around the globe, with interoperability at different levels for the entire ecosystem….,” as CIC founder Enric Duran has explained.[26] While the project is unabashedly ambitious, FairCoop correctly recognizes that the existing monetary system and private banks pose insuperable barriers to reducing inequality and ensuring productive work and wealth for all. The only “realistic” alternative to existing fiat currencies and foreign exchange is to invent a new monetary system!  FairCoop intends to use Faircoin to help build a larger ecosystem of economic institutions, which will include Faircredit, a worldwide mutual credit system for exchanging goods and services via Faircoin; and Fairfunds, a group of Faircoin donation vehicles for various types of projects.

New state policies to enable digital commoning are emerging, fitfully (see section #9 for more on this topic), but they remain a bit on the margin of mainstream politics and policymaking.  The most significant initiative in this area was the 2013-14 research project of the FLOK Society – Free/Libre Open Knowledge Society – in Ecuador, which sought to “envisage an economy that would no longer be dependent on limited material resources, but on infinite immaterial resources.”[27] The project, headed by Michel Bauwens of the P2P Foundation, developed a policy framework to promote online commons-based peer production in its many diverse forms, resulting in more than eighteen legislative proposals including a dozen pilot projects, which were validated in the Buen Conocer Summit at the end of May 2014. The FLOK project’s detailed research paper that addressed the challenges of building commons-oriented productive capacities (sustainable agriculture, distributed manufacturing and energy), social infrastructure and institutional innovation (the social economy, the partner state, open government), open technical infrastructures (free software, free hardware, cybersecurity), and policies to protect traditional and ancestral knowledge and biodiversity, among other topics.  The general FLOK Society agenda, which has larger implications beyond Ecuador, is now continuing under the auspices of the Commons Transition Initiative, also headed by Bauwens.[28]

A notable new form of commons-based peer production, open value networks, is described below in #8, “New Organizational Forms.”

4.  Stakeholder Trusts

The stakeholder trust, inspired by the Alaska Permanent Fund, is a species of large-scale commons that distributes revenues from a shared asset, typically a natural resource, and distributes it to citizens with a recognized “stake” in the resource.  The archetypical example is the Alaska Permanent Fund, a state-chartered trust that is authorized to collect, manage and distribute revenues from oil drilled on state land, on behalf of Alaska residents.  Each household gets a dividend of between $1,000 to $2,000 per year from corporations that extract oil on Alaska state lands.  These revenues for individual citizens are praised by both progressives and conservatives as a welcome display of citizen sovereignty over “what we own” and a source of non-wage income for ordinary people that can reduce inequality.  Stakeholder trusts are also touted as “common wealth trusts” that can safeguard natural and social resources that are our collective inheritance.

In his 2014 book, Liberty and Dividends for All,[29] Peter Barnes has extended the idea of stakeholder trusts to wide variety of “common assets” that could be responsibly monetized and revenues shared via common wealth trusts. The trusts would act as trustees for revenues collected from various commercial users of common assets (where monetization is appropriate):  industries that use the atmosphere for their wastes (and thus must buy air pollution rights to use that scarce resource); banks and stock sellers who must pay a financial transaction tax (in recognition of public support for the financial infrastructure); copyright-, trademark- and patent-based industries that rely on government-created property rights and enforcement systems; and broadcasters and other users of the public’s electromagnetic spectrum.[30]  Stakeholder trusts could be applied at the state or provincial level.

In Vermont, a 2008 report outlined the various state assets that could be managed via stakeholder trusts – forests, rocks and minerals, water used in bottling, broadcast spectrum, land, wind.[31] In 2011, a bill was introduced in the Vermont state legislature to establish a “Vermont Common Assets Trust” for a variety of natural resources; the bill was never enacted but the idea is still viable in Vermont and other legal jurisdictions.  Versions of the stakeholder trust governance/management model have also been proposed the atmosphere (“Earth Atmospheric Trust”), oceans, and the human genome.[32]

Working with Peter Barnes, the Sustainable Economies Law Center[33] (Janelle Orsi, director) is currently exploring ways to extend and adapt the stakeholder trust idea to different contexts.  For example, local commons trusts could serve as a steward of local forests, watersheds or open spaces (e.g., community forests or the cooperative management of a public forest described in section #2 above).  Interested citizens and legislatures could use model versions of government-chartered trusts as standard organizational forms for creating commons-managed trusts.[34] SELC is currently exploring the Agrarian Trust model – the idea of putting farm land into trusts as a strategy to help retiring farmers sell their farms while preserving the land for agricultural uses.[35]

SELC is also exploring new legal and financial structures to provide universal basic incomes and to create “Baby Bonds” – “child trust funds” in the UK[36] – which consist of assets that appreciate in value and pay dividends to children when they become 18 years old.[37]  All of these trust forms seek to protect common wealth from marketization, especially over intergenerational periods of time, and promote greater social equity.

Tomorrow:  The rest of Part II, with “clusters” #5- #9.

[1]  Broadly defined as peoples whose societies and cultures predated the nation-states that have come to engulf them.[2]  An extensive overview of indigenous peoples’ law can be found in a web document by Steven C. Perkins, “Researching Indigenous Peoples’ Rights Under International Law,” at

[3] “Biocultural community protocols and the Future of Conservation,” September 14, 2014, at… See also Kabir Sanjay Bavikatte and Tom Bennett, “Community Stewardship:  The Foundation of Biocultural Rights,” Journal of Human Rights and the Environment 6(1) March 2015, pp. 7-29.


[5]  Alejandro Argumedo, “The Potato Park, Peru:  Conserving Agrobiodiversity in an Andean Indigenous Biocultural Heritage Area,” in Protected Landscapes and Agrobiodiversity Values, ed. Thora Amend et al.  (Gland, Switzerland: International Union for the Conservation of Nature, 2008), 45-58.  The IBCHA agreement does empower the Quechua societies to control scientific studies in the region and the Potato Park database can be used to thwart patent applications for indigenous medicinal plants and knowledge.



[8]  Among the notable “participatory biology” networks and groups are DIYbio, BioBricks Foundation, Genspace, a community-based lab in Brooklyn, New York, and Bricobio, a biotech biohacker space in Montreal.

[9] “Securing the Commons:  Securing Property, Securing Livelihoods,” International Land Alliance website,  Since these commons do not generally involve market activity and do not contribute to GDP, they are ignored by conventional economists as insufficiently interesting or as a deficiency to be remedied by “development.”

[10]  See, e.g., Soma K P and Richa Audichya, “Our Ways of Knowing:  Women Protect Common Forest Rights in Rajasthan,” in Patterns of Commoning (Off the Common Books, 2015).

[11] Liz Alden Wiley, “The Global Land Grab:  The New Enclosures,” in David Bollier and Silke Helfrich, The Wealth of the Commons:  A World Beyond Market and State (Levellers Press, 2012), available at global-land-grab-new-enclosures.  See also Wiley’s report for the International Land Coalition, “The Tragedy of Public Lands:  The Fate of the Commons Under Global Commercial Pressure,” January 2011, at

[12] The film was produced by produced by writer and filmmaker Alan Honick, with support from Forest Service Employees for Environmental Ethics  .

[13] System of Rice Intensification, at  See also Erika Styger, “The System of Rice Intensification and Its International Community of Practice,” in Patterns of Commoning (Off the Common Press, 2015).

[14]  See also….

[15] See the report, “Distributed Collaborative Organizations:  Distributed Networks & Regulatory Frameworks,” written by people associated with Swarm, the Berkman Center for Internet and Society, New York Law School and the MIT Media Lab, in March 2015, available at  See also Rachel O’Dwyer, “The Revolution Will (Not) Be Decentralized,” Commons Transition website, June 11, 2015, at… and Morgen E. Peck, “The Future of the Web Looks a Lot Like Bitcoin, IEEE Spectrum, July 1, 2015, at….

The blockchain and related legal issues are being actively discussed in a series of global workshops known as “Blockchain (R)evolution,” convened by Primavera De Filippi, Constance Choi and John Clippinger. ?mc_cid= c156eab3de&mc_eid=8b6e25fdc0.  For a broader introduction to this general topic, see John H. Clippinger and David Bollier, From Bitcoin to Burning Man and Beyond:  The Quest for Identity and Autonomy in a Digital Society (ID3, 2014), available at 

[16] Reed E. Hundt, Jeffrey Schub and Joseph R. Schottenfeld, “Green Coins:  Using Digital Currency to Build the New Power Platform,” in Clippinger and Bollier, From Bitcoin to Burning Man and Beyond, available at….

[17] This project is an outgrowth of work done by ID3, a Boston-based nonprofit headed by John H. Clippinger that was building an ambitious open-source program for authentication of digital identity and trustworthy sharing of resources on digital platforms.

[18] The three active contributors to Common Accord are James Hazard, an American lawyer based in Paris; Primavera De Filippi of the Harvard Berkman Center and CERSA/CNRS; and Marc Dangeard of

[19] As described on the P2P Foundation wiki:  “The goal is to make the documents so modular that much of the text disappears, leaving parties with only specific deal points and clear relationships. These relationships can be ‘rendered’ at any time into full legal documents, for verification and enforcement. Technically, this is a data-model for text, an extremely simple and expandable data-model that consists of a series of nested lists that render into texts. The texts can be improved, extended and forked by the community. As such, CommonAccord is expected to play the same role in facilitating and accelerating collaboration on legal texts as git has played for code.”

[20] See, e.g., a model contract Form/; patient consent forms,; municipal data sharing,; and




[24] and

[25] Common Accord is working with the City of Kansas City, the UMKC Law School, Code for America, and MIT Media Lab on model data sharing agreements for municipalities.

[26]  See also /enric-duran-introduces-fair-coop/2014/09/18.


[28] See the Commons Transition Plan website at, and also Bauwens’ assessment of post-FLOK priorities, at….

[29] Peter Barnes, With Liberty and Dividends for All:  How to Save Our Middle Class When Jobs Don’t Pay Enough (Berrett-Koehler, 2014).

[30] Barnes recently published an essay on the Great Transition Initiative website, which includes numerous comments and criticisms:

[31] Vermont Green Tax and Common Assets Project [MPA Program and Gund Institute, University of Vermont], “Valuing Common Assets for Public Finance in Vermont,” November 2008, available at….

[32] Barnes et al., “Creating an Earth Atmospheric Trust:  A System to Control Climate Change and Reduce Poverty,” 319, no.  5864 (March 2008): 724; Peter H. Sand, “Public Trusteeship for the Oceans,” in Law of the Sea, Environmental Law and Settlement of Disputes, eds. Tafsir Malic Ndiaye and Rudiger Wolfrum(Boston: Martinus Nijhoff, 2007), 521; David E. Winickoff and Richard N. Winickoff, “The Charitable Trust as a Model for Genomic Biobanks,” New England Journal of Medicine 329 (September 2003): 1180; David Bollier, “The Vermont Common Assets Trust,” (Blog), March 10, 2011,; and Peter Barnes, forthcoming book, 2014; See also Burns H. Weston and David Bollier, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons (New York: Cambridge University Press, 2012), 245-248.


[34] In such a scheme, as Barnes explains, “Outwardly, the shells [of trusts] would be not-for-profit corporations with state charters, self-governance, perpetual life and legal personhood.  Inwardly, they’d be coded to protect their assets for future generations and to share current income.”



[37] See, e.g. Will Paxton and Stuart White, “Universal Capital Grants:  The Issue of Responsible Use,” in Will Paxton and Stuart White, with Dominic Maxwell, The Citizen’s Stake:  Exploring the Future of Universal Asset Policies (Bristol, UK: Policy Press, 2006), pp. 121-134.

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