Written Steven J. Vaughan-Nichols for Linux and Open Source, originally posted on ZDNet on August 28, 2018

Most people wouldn’t know an open-source license from their driver’s license. For those who work with open-source software, it’s a different story. Open-source license fights can be vicious, cost serious coin, and determine the fate of multi-million dollar companies. So, when Redis Labs added a new license clause, Commons Clause, on top of Redis, an open-source, BSD licensed, in-memory data structure store, all hell broke loose.

Why? First, you need to understand that while you may never have heard of Redis, it’s a big deal. It enables real-time applications such as advertising, gaming financial services, and IoT to work at speed. That’s because it can deliver sub-millisecond response times to millions of requests per second.

But Redis Labs has been unsuccessful in monetizing Redis, or at least not as successful as they’d like. Their executives were discovering, like the far more well-known Docker, that having a great open-source technology did not mean you’d be making millions. Redis’ solution was to embrace Commons Clause.

This license forbids you from selling the software. It also states you may not host or offer consulting or support services as “a product or service whose value derives, entirely or substantially, from the functionality of the software”.

If that doesn’t sound like open-source software to you, you have lots of company.

Simon Phipps, president of the Open Source Initiative (OSI), snapped on Twitter: “Redis just went proprietary, which sucks. No, this is not just ‘a limitation concerning fair use,’ it is an abrogation of software freedom.”

In an email, Phipps added, “Adding a significant clause to an existing license that has been approved by OSI instantly renders it non-approved, and the text of the so-called ‘Commons Clause,’ which actually fences off the commons, is clearly intended to violate clause 1 of the Open Source Definition and probably also violates clauses 3, 5 and 6. As such adding this clause to a license would be a major abrogation of software freedom removing essential rights from any affected open-source community.”

Software programmer Drew DeVault made his stance clear from his opening words: “Commons Clause will destroy open source.” Commons Clause, he continued, “presents one of the greatest existential threats to open source I’ve ever seen. It preys on a vulnerability open-source maintainers all suffer from, and one I can strongly relate to. It sucks to not be able to make money from your open-source work. It really sucks when companies are using your work to make money for themselves. If a solution presents itself, it’s tempting to jump at it. But the Commons Clause doesn’t present a solution for supporting open-source software. It presents a framework for turning open-source software into proprietary software.”

Bradley M Kuhn, president of the Software Freedom Conservancy and author of the Affero General Public License, blogged, “This proprietary software license, which is not open source and does not respect the four freedoms of free software, seeks to hide a power imbalance ironically behind the guise ‘open source sustainability.’ Their argument, once you look past their assertion that the only way to save open source is to not do open source, is quite plain: If we can’t make money as quickly and as easily as we’d like with this software, then we have to make sure no one else can as well.”

Andrew ‘Andy’ Updegrove, a founding partner of Gesmer Updegrove, a top technology law firm, and open-source legal expert, found it no surprise that many open-source supporters hate Commons Clause. He rejects the conspiracy theory, “that the Commons Clause will be some sort of virus that will deprive innocent developers of the ability to make a living, and will persuade businesses owners to avoid buying or using code that has any commons clause in it.”

Updegrove believes this is because Heather Meeker, a partner at O’Melveny law firm who drafted it, “is a respected attorney and long-term participant in open-source legal circles, so IMHO the conspiracy theory can be ignored. Note also that Kevin Wang [founder of FOSSA]and Heather have both offered the clause as text to initiate a discussion, and not something to be wholesale adopted as it stands.”

That didn’t stop Redis Labs, which is applying Commons Clause on top of the Apache license, to cover five new Redis modules. Redis is doing this, said its co-founder and CTO Yiftach Shoolman in an email, “for two reasons — to limit the monetization of these advanced capabilities by cloud service providers like AWS and to help enterprise developers whose companies do not work with AGPL licenses.”

On the Redis Labs site, the company now explains in more detail that cloud providers are taking advantage of open-source companies by repackaging their programs into competitive, proprietary-service offerings. These providers contribute very little — if anything — back to those open-source projects. Instead, they use their monopolistic nature to derive hundreds of millions of dollars in revenues from them.

Redis Labs contends that “most cloud providers offer Redis as a managed service over their infrastructure and enjoy huge income from software that was not developed by them. Redis Labs is leading and financing the development of open source Redis and deserves to enjoy the fruits of these efforts.” Shoolman insisted that “Redis is open source and will remain under a BSD license.”

Salvatore Sanfilippo, Redis’ creator, added the change just “means that basically certain enterprise add-ons, instead of being completely closed source as they could be, will be available with a more permissive license,” Commons Clauses with Apache.

Software Freedom Conservancy executive director Karen Sandler isn’t so sure. Sandler emailed that Commons Clause “highlights the fundamental problems connected to the wide adoption of non-copyleft licenses, but I think it doesn’t really solve the problem that it seeks to solve. What we really need is strong copyleft licenses where the copyrights are held diversely by individuals and functional charities to make sure that software remains free and that societally we have the rights we need to have confidence in our software in the long run.”

In an email, Wang defended Commons Clause as “mostly used to temporarily transition enterprise offering counterparts of open-source software projects to source-available”. Wang continued: “Open-source software projects are mainly funded by a proprietary offering/service counterparts. Anything to help this layer monetize is good — the fate of the OSS is directly funded by it.

“The world has changed a lot and the open-source software/cloud ecosystem has a lot too,” Wang added. “The Open Source Definition is an immensely [valuable] set of ideals, but maybe it’s outdated to the modern state of the world. … Licensing follows intent, and I certainly don’t think the clause inspires people to close their source. But sometimes people need to change their license.”

Be that as it may, Updegrove wrote Commons Clause is “simple in concept: basically, it gives a developer the right to make sure no one can make money out of her code — whether by selling, hosting, or supporting it — unless the Commons Clause code is a minor part of a larger software product”.

“In one way, that’s in the spirit of a copyleft license (i.e., a prohibition on commercial interests taking advantage of a programmer’s willingness to make her code available for free), but it also violates the ‘Four Freedoms’ of free and open-source software as well as the Open Source Definition by placing restrictions on reuse, among other issues.”

But, “adding the Commons Clause to an open-source license makes it no longer an open-source license,” Updegrove added. And, were the Commons Clause to catch on, “it could give rise to an unwelcome trend”.

“The wide proliferation of licenses in the early days of open source was unhelpful and a cause of ongoing confusion and complexity, since not all licenses were compatible with other licenses. That means that before any piece of open-source code can be added to a code base, it’s necessary to determine whether its license is compatible with the licenses of all other software in the same product. That’s a big and ongoing headache.”

That’s a big reason, Updegrove wrote, why “Bruce Perens and Eric S. Raymond created the Open Source Definition and the Open Source Initiative so that there would be a central reference point and authority to determine what was and was not an ‘Open Source License’. That definition and process has held now for 20 years — an eternity, in open-source history.”

Therefore, Updegrove sees Commons Clause as a step backward from a process point of view. Worse, “it would be a very disturbing development if the release of the Commons Clause inspired more people to come up with their own license ‘extensions’, especially if they are also not compliant with the Open Software Definition and the Four Freedoms.”

The result? Companies and programmers veering away from using any Commons Clause licensed software. That was not its creators’ intent, but it’s a realistic concern.

Updegrove adds, “Speaking as a lawyer, the fact that someone can still charge for a product that includes Commons Clause software so long as the value does not ‘derive[s], entirely or substantially, from the functionality of the software’ is certain to invite disputes. The most obvious is what does ‘substantially’ [mean]? There is no bright-line for guidance.”

Georg Greve, co-founder and president at Vereign, a blockchain-secured communication company and founder of Free Software Foundation Europe, also worried, “Overall it seems purposefully vague & misleading, probably overreaching and terribly one-sided to establish Fear, Uncertainty, and Doubt for any professional use of software licensed under it while making it terribly easy to ‘accidentally’ incorporate such components.”

Still, Updegrove thinks Commons Clause may be “a useful addition to the licensing menu, but not one that will be appropriate for use in all situations. … Developers should be clear in advance what their goals are when they’re put their fingers to their keys. Commons Clause-licensed software is not likely to get the same amount of reuse as might otherwise be the case.”

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Mattei is the noted international law scholar, lawyer and activist who has been at the center of some of the most significant commons initiatives in Italy. His chapter is a welcome synthesis of how the commons discourse in Italy arose from the misty-eyed imagination of a few far-sighted legal commoners, to become a rally cry in critical fights against the privatization of water, the Teatro Valley theater in Rome, and other cherished shared wealth. The concept of the commons has since gone mainstream in Italian political culture, animating new initiatives and providing an indispensable vocabulary for fighting neoliberal capitalist policies.

Ugo’s piece is called “Institutionalizing the Commons: An Italian Primer.” (PDF file) In it, he describes the history of the commons in Italy as “a unique experiment in transforming indignation into new institutions of the commons,” adding, “perhaps this praxis ‘Italian style’ could become an example for a global strategy.”

The story starts in 2005 with a scholarly project at the Academia Nazionale dei Lincei, which examined the many ways in which public authorities were routinely privatizing public resources, often with no compensation or benefit to the public. This project later led to a national commission headed by Stefano Rodotà, a noted law scholar and politician. In April 2008, the Rodotà Commission delivered a bill to the Italian minister of justice containing, as Mattei puts it, “the first legal definitions of the commons to appear in an official document” in Italy.

The Rodotà Commission defined the commons (in Italian beni comuni) by dividing assets into three categories – commons, public properties, and private properties. Resources in commons were defined as

such goods whose utility is functional to the pursuit of fundamental rights and free development of the person. Commons must be upheld and safeguarded by law also for the benefit of future generations. The legal title to the commons can be held by private individuals, legal persons or by public entities. No matter their title, their collective fruition must be safeguarded, within the limits of and according to the process of law.

Specific common assets mentioned included “rivers, torrents and their springs; lakes and other waterways; the air; parks defined as such by law; forests and woodlands; high altitude mountain ranges, glaciers and snowlines beaches and stretches of coastline declared natural reserves; the protected flora and fauna; protected archaeological, cultural and environmental properties; and other protected landscapes.

This early (modern) legal definition of the commons is rooted more in state law and its recognition of certain biophysical resources as public, than in the sanctity of self-organized, customary social practices and norms. The definition nonetheless has provided a valuable language for challenging privatization, most notably, the alarming proposal by the Italian Senate in 2010 to sell Italy’s entire Italian water management system.

This outrage led to the collecting of over 1.5 million signatures to secure a ballot referendum to let the public decide whether the state should be allowed to privatize the water commons. In June 2011, Italian proto-commoners prevailed by huge margins and helped make the commons – beni comuni – a keyword in Italian politics. As Mattei puts it, the commons provided “a unifying political grammar for different actions.”

Over the past eight years, the commons has continued to gain currency in Italian politics as the economic crises of capitalism have worsened. The language of enclosure showcased how government corruption, neoliberal trade and investment policies, and state subsidies and giveaways were destroying the common wealth.This was underscored by parallel protests by the Indignados in Spain, the Occupy movement, and the Arab Spring protests, which also focused on inequality and enclosures of the commons. Mattei’s short book Beni comuni: Un Manifesto helped bring these themes to further prominence and connecting many single-issue struggles that had long been seen as separate, but which in fact share common goals, adversaries, and values.

I like to think that most towns, cities and regions of the world could and should begin to write their own modern-day histories of their distinctive commons. It’s imperative that we recover and learn these histories if we are going to learn from the terrible disruptions and struggles of the past, and invent new forms of social practice, culture and politics.

The post A Short History of the Commons in Italy (2005-present) appeared first on P2P Foundation.

About This Episode

In 2010, The American Bar Association named Janelle Orsi a Legal Rebel, for being an attorney who is remaking the legal profession through the power of innovation. We agree- Janelle is a rebel with a cause, transforming the way we think about leadership in this shifting economy. From participatory leadership to salary transparency, Janelle is leading by example to expand our definition of leadership. In this episode, Janelle shares examples of how her organization’s leadership practices create opportunities for every level of staff to be engaged in contributing to the organization.

About Janelle Orsi

Janelle Orsi is a lawyer, advocate, writer, and cartoonist focused on cooperatives, the sharing economy, land trusts, shared housing, local currencies, and rebuilding the commons. She is Co-Founder and Executive Director of the Sustainable Economies Law Center (SELC), which facilitates the growth of more sustainable and localized economies through education, research, and advocacy. Janelle has also worked in private law practice at the Law Office of Janelle Orsi, focusing on sharing economy law since 2008. Janelle is the author of Practicing Law in the Sharing Economy: Helping People Build Cooperatives, Social Enterprise, and Local Sustainable Economies (ABA Books 2012), and co-author of The Sharing Solution: How to Save Money, Simplify Your Life & Build Community (Nolo Press 2009), a practical and legal guide to cooperating and sharing resources of all kinds.

Janelle’s cartoons include Awkward Conversations with Babies, The Next Sharing Economy, Economy Sandwich, Share Spray, The Beatles Economy, The Legal Roots of Resilience, Housing for an Economically Sustainable Future, Transactional Law Practice for a Sharing Economy, Governance is Life, and Citylicious.

Janelle is an advocate for a more open, inclusive, and accessible legal profession, and you can see her 10-minute presentation on transforming the legal profession here. Janelle supervises two legal apprentices — co-workers who are becoming lawyers without going to law school. Janelle and her apprentices are blogging about the process at LikeLincoln.org. 

In 2014, Janelle was selected to be an Ashoka Fellow, joining a robust cohort of social entrepreneurs who are recognized to have innovative solutions to social problems and the potential to change patterns across society.  In 2010, Janelle was profiled by the American Bar Association as a Legal Rebel, an attorney who is “remaking the legal profession through the power of innovation.” In 2012, Janelle was one of 100 people listed on The (En)Rich List, which names individuals “whose contributions enrich paths to sustainable futures.”

In her words…

“I’ve come to realize, if we cultivate the right conditions, we can end up with communities and organizations where, a lot of people, or even all the people, feel that they have power and agency to just shape the world around them.” “I have a lot of hope and optimism for what I think we can do in this world. I think a lot of my role as a leader has just been to help impart that same enthusiasm. I do that. I really hone my skills as a communicator and I do a lot of speaking, I draw a lot of cartoons, I do a lot of writing in ways that I hope inspire other people. What ends up happening is that when other people are inspired, they’re highly intrinsically motivated to get involved. That’s my form of leadership, it’s spurring a lot of voluntary and intrinsically motivated participation in this work as opposed to coercive. I almost never want somebody to do something if they don’t feel intrinsically motivated to do it. For me, my style is to create the vision and communicate it in a way that people are going to want to and feel really driven to get involved in.” “I think we need to start young and just get everybody used to having more power in agency. I think most people walk around their cities or their neighborhoods and they watch things happen. They see, ‘Oh, that building got bought up by a big developer,’ or, ‘That building’s being torn down.’ They watch things happen and it just sort of washes over us, but we don’t always necessarily feel like we have the power or opportunity to change things or shape the world around us. To the extent that we can start practicing that in small ways and creating opportunities for people everywhere to practicing that in small ways, it’ll, I think, ultimately lead to people doing it in bigger ways and having a bigger impact.” “Sometimes I hear people say, ‘there are too many nonprofits,’ or ‘there’s too much redundancy.’ You know, we don’t need more nonprofits, but in a way, I think that we do, because every organization or every program within an organization is a space in which people are able to have a lot of agency and power and to take things on and to achieve a lot. And the degree of social change that we need, if we really are gonna make it through this next 10 years, we have the UN predicting that 2030 is the year in which basically climate change is gonna be irreversible. These are huge problems to take on and of course, the inequality’s been getting worse. Racism’s been getting worse. We’re on a trajectory where things are getting worse, and so to really turn things around, it’s gonna take a lot. A lot of people really focusing on making that change.” “I think the nonprofit sector will grow and that it should grow and that there should be a diversity of organizations working in the same sector. A lot of people say, ‘don’t just duplicate efforts’. But I think we should duplicate efforts. We need a lot of people doing the same kind of work, but doing it in their unique communities, in their unique ways, trying innovative things. And so I think a plurality and diversity and multiplicity of nonprofits emerging in coming years I think will be important. And I think the highly participatory leadership structure is gonna be really critical to that in order to create that leaderful society.” “I just think the passion and the dedication and the intrinsic motivation of nonprofit workers is perhaps the most valuable resource that we have for social change. That it’s the workers themselves and the drive and the motivation that we bring. That’s what’s really going to make change. And then in order to tap into that drive and into that motivation, we have to be thinking about our organizational structures and our organizational culture. So it could really come down to that. Maybe this is my way of saying that nonprofits that aren’t really thinking deeply about their structure and their culture right now are missing an opportunity to tap into that incredibly valuable resource.” 

Questions Answered on this Episode

• What is shareable leadership?
• Why do you think it is beneficial in the nonprofit sector?
• What issues or opportunities do you see in traditional structures of leadership?
• Cooperatives and shared economy models are seeing a surge in popularity. In many ways, cooperatives, in particular, are creating new economic opportunities for people who may have been previously counted out. How do we invest in those leaders and groups to prepare them as their organizations grow?
• How would you describe your leadership style?
• What has been the overall response to the concept of shareable leadership?
• Are there specific conditions under which the model will thrive or fail?
• What response does “shareable leadership” get from funders? Have they embraced the concept?
• Our current political climate has birthed leaders that haven’t followed the typical trajectory but felt the need to lead in order to create something better. Do you have any predictions about leadership structures and what we may see in the next 5 or 10 years?

The post Janelle Orsi on transforming the way we think about leadership appeared first on P2P Foundation.

Knowledge, Spirit, Law is a de facto phenomenology of scholarship in the age of neoliberal capitalism. The eleven essays (plus Appendices) in Book 1: Radical Scholarship cover topics and circle themes related to the problems and crises specific to neoliberal academia, while proposing creative paths around the various obstructions. The obstructions include metrics-obsessed academia, circular and incestuous peer review, digitalization of research as stalking horse for text- and data-mining, and violation by global corporate fiat of Intellectual Property and the Moral Rights of Authors. These issues, while addressed obliquely in the main text, definitively inform the various proscriptive aspects of the essays and, via the Introduction and Appendices, underscore the necessity of developing new-old means to no obvious end in the production of knowledge — that is to say, a return to forms of non-instrumentalized intellectual inquiry. To be developed in two concurrent volumes, Knowledge, Spirit, Law will serve as a “moving and/or shifting anthology” of new forms of expression in humanistic studies. Book 2: The Anti-Capitalist Sublime will be published in Autumn 2017.

About the author

Gavin Keeney is an editor, writer, and critic. His most recent books include Dossier Chris Marker: The Suffering Image (2012) and Not-I/Thou: The Other Subject of Art and Architecture (2014), both produced as part of PhD studies conducted in Australia and Europe from 2011 to 2014. He is the Creative Director of Agence ‘X’, an editorial and artists’ and architects’ re-representation bureau founded in New York, New York, in October 2007.

Photo by La caverne aux trésors

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Mukelani Dimba: The beauty of the northern Italian town of Bellagio on Lake Como transcends all natural elements. It is beautiful when the temperature drops and white snow caps the early Alps and fog is suspended between the quiet lake and the mountains. It is also beautiful when warm sun rays that blanket the entire Larian triangle bringing out the mallard ducks to come out and frolic on the lake. Bellagio provided the backdrop last week (sometimes literally, see picture) for a global meeting of data scientists, political theorists, academics and open governance practitioners to consider risks, benefits and opportunities for CrowdLaw, a cutting-edge idea for using technology to enhance public participation in urban law making. CrowdLaw is about informing, consulting involving, collaborating with, and empowering the public in the work of lawmaking bodies at local government levels. It is a technology-enabled participatory lawmaking mechanism.

Democracy is whole lot like Bellagio. Throughout the vicissitudes of democratic practice, the highs and lows, democracy remains the best form of governance (of all the ones that have hitherto been tried, to paraphrase Churchill). But democracy is a lot more than voting for public representatives every four or five years. Real democracy is about people’s participation in decision making about matters that affect their daily lives. Participation is the currency we use to enjoy the benefits of democracy. Without participation, we lose democracy.

However, that which does not transform with the changes in the environment is bound to become extinct. This is true for living organisms and ideas alike. Technological advancement is influencing every aspect of our lives, from how we interact with those around us to how we work, how we play, how we perceive the world and events around us. Likewise, technological advancement is transforming entire industries, professions and areas of knowledge. However the one area that seems still unsure about how to respond to change brought about by technological innovation, is the governance field.

I use the term “governance field” as the broad rubric that encompasses fields such as democratic practice, policy formulation and law making. While mobile banking, artificial intelligence (AI)-supported infrastructure design and usage of virtual reality in medical procedures have become standard features of modern life, there is still only minimal uptake of electronic or online voting during national elections, to give one example. While there are hundreds of examples and recorded best practice on how governments are using online and offline mechanisms to promote participation in policy formulation, the incorporation of new technologies into the entire law-making circle (problem identification, options identification, drafting, decision, implementation and review) at local levels of government are few and far in between but there are good examples (that will be elaborated on in subsequent blogs in this series). In some instances, existing legal frameworks have often been slow to respond to swift and sudden technological changes, rendering them — at least in part — unable to fully accommodate the areas they are meant to regulate.

There are strong arguments that technology is not the only (or even preferred) medium for enhancing public participation in law making. However, it is also true that traditional, mostly offline, mechanisms for public participation tend to favour those “in the know” and those that have access to information and resources to enable them to send their positions to legislative authorities or travel to seats of government to engage with lawmakers. The rapid growth of the rates of penetration of mobile phones globally,¹ means there are now greater opportunities to enable broad-based participation in law-making processes using technology. In instances of inequality technology can be a great leveler and can have a democratising effect and thus enabling more inclusive lawmaking.

If the governance area of knowledge and practice fails to adopt technological change, might it also fray, wither and become extinct? The concept itself cannot be said to be vulnerable to extinction but different approaches to governance could become irrelevant over time if they are not modernised. I believe that this is the case with the practice of democracy.

Fortunately there are many individuals, organisations and governments that are working together to experiment with how technology can be used to enhance the practice of democracy. These experiments are coming at the right time as the world experiences a sharp decline in public trust of governments. Multi-stakeholder initiatives such the the Open Government Partnership (OGP) working with governments, civil society groups and civic tech proponents are creating exciting new platforms that seek to enable deeper and more impactful engagement between the public and their governments on the conduct of public affairs and management of shrinking public resources. Governments across the globe are piloting new forms of engagement and feedback mechanisms to better understand and meet the needs of citizens, be it through online consultations, community score cards or e-services, to name a few.

The group convened at Bellagio by Professor Beth Noveck, head of The Governance Lab considered ways of nurturing a movement that will drive this important work through global project mapping, research into the effectiveness of these initiatives and development of norms and standards for implementing CrowdLaw. According to Prof. Noveck,²

“Technology offers the promise of opening how lawmaking bodies work and making lawmakers accountable to the public more than just on Election Day. CrowdLaw offers an alternative to the traditional method of lawmaking, which is typically done by professional staff and politicians working behind closed doors and with little direct input from the people legislation affects. Instead, we start from the hypothesis that, designed right, with the aim of improving the quality of outputs, there are opportunities at each stage of the lawmaking process, including problem definition, solution identification, research and drafting, subsequent crafting of implementing regulations, and monitoring of outcomes, to introduce greater expertise into the legislative process efficiently. At the same time, we acknowledge that, designed wrong, without regard for outcomes, engagement may only hamstring decision-making and deepen distrust of government.”

Prof. Noveck’s warning about some of the potential pitfalls of CrowdLaw is important. Implementing CrowdLaw comes at a cost in time, resources and, most importantly, ordinary people’s wishes and expectations. The value proposition for implementing and participating in CrowdLaw initiatives for both governments and the public has to be well articulated and based on evidence from pioneering initiatives.

While the case for the benefits of CrowdLaw for the public is easily made, more work needs to be done to demonstrate how CrowdLaw can strengthen existing public participation processes and how it can help governments graduate up the continuum of public participation by moving from informing, consulting and involving the public to collaboration with, and empowerment of, the public. The position of CrowdLaw within the broader ecosystem of governance-enhancement concepts, for example participatory budgeting and legislative openness, will also require more analysis. CrowdLaw champions will further need to grapple with the question of limitation of access (to information and participation) as a legally recognised provision in public law. While the CrowdLaw ideal is to place the public throughout the vein of legislative process, the contours of the limitations to public participation will need to be articulated and guidelines must be offered to CrowdLaw implementers on the government side.

With 76 Open Government Partnership (OGP) countries and subnational entities (municipal, provincial, state or devolved governments) currently drafting their action plans, OGP is an ideal incubator for CrowdLaw — especially with a view to curating knowledge and early lessons on “how technology can facilitate more participatory lawmaking in cities, and the benefits potential, risks and metrics”, as Prof. Noveck puts it.

There are clear synergies between the intentions of CrowdLaw and OGP’s stated agenda of promoting parliamentary/legislative openness. The CrowdLaw concept presents OGP participating countries and subnational entities with a tool to test the possibilities of innovation in making legislative process more open and collaborative.

It could well be that an idea hatched in a quiet little corner of Lake Como will resound around the world and fundamentally transform law-making processes forever. This is a good thing — perhaps a fundamental shake up is what is needed to restore the public’s faith in democracy and government.

*Mukelani Dimba is the civil society co-chair of the Open Government Partnership

Lead image: A breakout session at the three-day CrowdLaw conference hosted at the Rockefeller Foundation Bellagio Center in Italy. Picture by Beth Simone Noveck

FOOTNOTES:

The post CrowdLaw as a tool for open governance appeared first on P2P Foundation.

While Ostrom’s work revealed that legal relations governing resources invisibly structure the commons, what those legal relations in fact reveal is our social and economic relations about resources: Who makes what? How much of what? And who gets what?

In the commons, the answers to these questions are embedded in a social logic according to community norms and values. In market societies, the source of these answers are to be found in the non-social economic logic of capitalism. The catalyst for this non-social economic logic, according to social theorists like Karl Polanyi and others, was the separation of people from their means of subsistence through the enclosure of the commons: throwing people off their land, separating them from the basics of life — food, water, and shelter — and charging rent for access. In the feudal commons, access to the means of subsistence was guaranteed by one’s inclusion and social status in a community and territory. In the transition to market economies, one’s subsistence became a matter of one’s ability to pay rent and/or labor for a wage. This new system unleashed a logic of competition for productive land and work, the accumulation of capital to reinvest into labor and time saving technologies, and the expansion of instrumental relations and commodification into every space and sphere of life.

As Polanyi said: “Instead of economy being embedded in social relations, social relations are embedded in the economic system.” Or to put it simply, instead of profit serving the needs of people, people came to serve the needs of profit. Polanyi’s optimistic outlook was that through property, welfare and finance regulation — through law — the market could be embedded once again to serve human and social purposes.

So, from this perspective, law is a tool for lawyers, judges, legislators, and most importantly citizens, to wield against the market, to combat the inequities that it produces in its unfettered wake-both top down and bottom up. And law can be utilized beyond property, welfare, and finance law to other domains. Law can be used towards decommodifying our means of subsistence by guaranteeing access to fundamental resources that are crucial to human life, both top down, by naming things like healthcare, education, and housing (just to name a few) as a right, to which access should be guaranteed, but also from the bottom up, by changing the structure of property and contract entitlements, for instance to allow for simultaneous use of shared resources, and curb unrestricted transfer rights. Law can also be used to reorganize work away from wage labor and towards workers’ ownership, by enacting through legislation the recognition of new legal entities like the Cooperative Corporation or the B Corporation that place non-market values at their center, or bottom up through the creation of workers cooperatives (a rapidly growing movement throughout the world). Law can also be used to alter the structure of intellectual property rights in ways that encourage sharing, collaboration, and innovation, top down by policymakers refusing to create certain kinds of property rights in these resources, but also bottom up through legal innovation and resistance through individuals adopting the Creative Commons license or “copyleft” policy over other proprietary forms of copyright.

In this new series on Shareable, “Law: The invisible architecture of the commons,” we will showcase new and emerging legal institutions that offer an alternative system of incentives for encouraging cooperation, sharing, and sustainability. These legal institutions demonstrate how citizens, working together with lawyers and policymakers, can successfully design legal institutions for themselves to decommodify our access to fundamental resources, alter the wage labor relationship through new types of legal entities, and create new ways of stimulating ownership, innovation, and collaboration around knowledge goods.

Cross-posted from Shareable

Photo by Sinéad McKeown

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Since Bitcoin appeared in 2009, the digital currency has been hailed as an Internet marvel and decried as the preferred transaction vehicle for all manner of criminals. It has left nearly everyone without a computer science degree confused: Just how do you “mine” money from ones and zeros?

Don’t miss this forthcoming book, co-authored by P2P Foundation affiliate Primavera De Filippi. The following is taken from the publisher’s page:

Since Bitcoin appeared in 2009, the digital currency has been hailed as an Internet marvel and decried as the preferred transaction vehicle for all manner of criminals. It has left nearly everyone without a computer science degree confused: Just how do you “mine” money from ones and zeros?

The answer lies in a technology called blockchain, which can be used for much more than Bitcoin. A general-purpose tool for creating secure, decentralized, peer-to-peer applications, blockchain technology has been compared to the Internet itself in both form and impact. Some have said this tool may change society as we know it. Blockchains are being used to create autonomous computer programs known as “smart contracts,” to expedite payments, to create financial instruments, to organize the exchange of data and information, and to facilitate interactions between humans and machines. The technology could affect governance itself, by supporting new organizational structures that promote more democratic and participatory decision making.

Primavera De Filippi and Aaron Wright acknowledge this potential and urge the law to catch up. That is because disintermediation—a blockchain’s greatest asset—subverts critical regulation. By cutting out middlemen, such as large online operators and multinational corporations, blockchains run the risk of undermining the capacity of governmental authorities to supervise activities in banking, commerce, law, and other vital areas. De Filippi and Wright welcome the new possibilities inherent in blockchains. But as Blockchain and the Law makes clear, the technology cannot be harnessed productively without new rules and new approaches to legal thinking.

Reviews

“At long last—a deeply researched, thoughtful, and measured analysis of blockchain technology and the policies that could help us harvest its opportunities and avoid its pitfalls. Blockchain and the Law should be required reading for anyone serious about understanding this major emerging element of our technological ecosystem.”—Yochai Benkler, author of The Wealth of Networks

“A well-written and comprehensive book that cuts through the blockchain hype. It not only highlights the powers and limitations of blockchain technology, but solidly grounds it in a larger social and legal context.”—Bruce Schneier, author of Data and Goliath

“Blockchain and the Law perfectly links technical understanding with practical and legal implications. Blockchains will matter crucially; this book, beautifully and clearly written for a wide audience, powerfully demonstrates how.”—Lawrence Lessig, Harvard Law School

Table of Contents

• Introduction
• I. The Technology
  • 1. Blockchains, Bitcoin, and Decentralized Computing Platforms
  • 2. Characteristics of Blockchains
• II. Blockchains, Finance, and Contracts
  • 3. Digital Currencies and Decentralized Payment Systems
  • 4. Smart Contracts as Legal Contracts
  • 5. Smart Securities and Derivatives
• III. Blockchains and Information Systems
  • 6. Tamper-Resistant, Certified, and Authenticated Data
  • 7. Resilient and Tamper-Resistant Information Systems
• IV. Organizations and Automation
  • 8. The Future of Organizations
  • 9. Decentralized Autonomous Organizations
  • 10. Blockchain of Things
• V. Regulating Decentralized, Blockchain-Based Systems
  • 11. Modes of Regulation
  • 12. Code as Law
• Conclusion
• Notes
• Acknowledgments
• Index

Photo by Jennifer Stylls

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Nicos Poulantzas Institute in cooperation with transform! europe organized an open lecture of David Bollier, researcher, activist and writer of a series of books concerning Commons. Find here the short report of the event on 14 February.

Our colleague David Bollier speaks about Law for the Commons at an event co-organised by the Nicos Poulantzas Institute & Transform! Europe. The text below was written by Theodora Kotsaka and was originally published in the Transform! Europe blog.

Theodora Kotsaka: Nicos Poulantzas Institute is working on Commons during the last four years, focusing on areas as water and its management as a common good, digital commons and applied policies on Commons related to productions model transformation. D. Bollier’s speech was organized in order to complete the picture by referring to the argent need of reinventing a law for the Commons.

In countries around the world, Bollier noted, a burgeoning ‘Commons Sector’ is developing effective, ecological alternatives to the increasingly dysfunctional market/state system. Commons are developing new types of food-growing and -distribution systems, alternative currencies to retain community value, platform co-operatives for online sharing, multistakeholder co-ops, open design and manufacturing systems, land trusts, co-learning projects, and much else. The goal in most instances is to meet essential human needs through inclusive participation, the decommodification of relationships, collaborative social organization, and long-term stewardship that links responsibilities and benefits.

The growth of the Commons Sector faces significant barriers from conventional law, however, because the state privileges individual property rights and market exchange, and even criminalizes commoning. Fixated on extractive economic growth, state policies do not recognize the actual value created through Commons. This reality that has forced commoners to devise ingenious ‘hacks’ on the law, as possible, to protect their ability to collectively manage seeds, water, farming, housing and much else.

To legalize and support commoning, Bollier calls for a new field of legal inquiry to validate and develop new forms of commons-based law. We need new types of effective legal mechanisms to help incubate, maintain and defend commons. Bollier argues that this is an essential challenge to meet if we are to imagine and invent fair economic and governance systems that can work for everyone.

David Bollier is cofounder of the Commons Strategies Group, an international advocacy project, and Director of the Reinventing the Commons Program at the Schumacher Center for a New Economics (US).”

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Introduced in 2008 as the technology underpinning Bitcoin, a digital currency that is created and held electronically without any central authority, blockchain is a secure digital ledger for any kind of data. It simplifies record keeping and reduces transaction costs.

Its range of applications in commerce, finance and potentially politics continues to widen, and that has triggered a debate around how to regulate the tool.

Goodbye middleman

Because it does not require a centralised authority to verify and validate transactions, blockchain enables people who may not trust each other to interact and coordinate directly.

Diagrams showing how the blockchain electronic currency system works and how it could be adopted by the world of banking. Reuters

With blockchain, there is no middleman in peer-to-peer exchanges; instead, users rely on a decentralised network of computers that interact through a cryptographic, secure protocol.

Blockchain has the ability to “codify” transactions by deploying small snippets of code directly onto the blockchain. This code, generally referred to as a “smart contract”, executes automatically when certain conditions are met.

An early example of smart contracts are the corporate-oriented digital rights management (DRM) systems limiting uses of digital files. Having DRM on your ebook may restrict access to copying, editing, and printing content.

With blockchain, smart contracts have become more complex and, arguably, more secure. In theory, they will always be executed exactly as planned, since no one party has the power to alter the code binding a given transaction.

In practice, however, eliminating trusted brokers from a transaction can create some kinks.

One high-profile smart-contract failure happened to the DAO, a decentralised autonomous organisation for venture capital funding.

Launched in April 2016, the DAO quickly raised over US$150 million via crowdfunding. Three weeks later, someone managed to exploit a vulnerability in the DAO’s code, draining approximately US$50 million worth of digital currency from the fund.

The security problem originated not in the blockchain itself but rather from issues with the smart-contract code used to administer the DAO.

The DAO’s crowd-funding page in May 2016.

Questions arose about the legality of the act, with some people arguing that since the hack was actually permitted by the smart-contract code, it was a perfectly legitimate action. After all, in cyberspace, “code is law”.

The DAO debate raised this key question: should the intention of the code prevail over the wording of the code?

A new legal realm

Blockchain proponents envision a future in which entire companies and governments operate in a distributed and automated fashion.

But smart contracts pose a series of enforceability issues, which are outlined in a recent white paper by the London law firm Norton Rose Fulbright.

How can we resolve disputes arising over a self-executing smart contract? How do we identify what types of contractual terms can be properly translated into code, and which ones should instead be left to natural language? And is there a way combine the two?

It is not yet clear that code can address the necessary levels of complexity to replace legal language. After all, the vagueness inherent in the language of law is a feature, not a bug: it compensates for unforeseeable cases that must be assessed on a case-by-case basis in a court of law.

Traditional contracts acknowledge that no law can index the entire complexity of life as it is, let alone predict its future development. They also precisely define terms that can be enforced by law.

Smart contracts, by contrast, are simply snippets of code both defined and enforced by the code underpinning the blockchain infrastructure. Currently, they do not have any legal recognition. This means that when something goes wrong in a smart contract, parties have no legal recourse.

The DAO’s founders painfully learned this lesson last year.

The creative friction of the law

If blockchain technologies are ever to go mainstream, governments will have to set up new legal frameworks to accommodate such complexities.

Positive law prescribes behaviour and penalises non-compliance. It can encapsulate the normative ideal that a respective government seeks to achieve, demonstrate an ethical vision for society or reify the power structure of the current regime.

Technological developments, on the other hand, are often oriented toward profit and change.

There’s an inherent tension here. Laws may delay the development of technology and hence hurt the competitive advantage of an entrepreneur or even a state.

Take the case of nanotechnology regulation in the European Union versus in the United States. European law so mitigates risks that it may end up limiting the technology’s potential, losing its competitive edge against the US.

That’s another fact about the law: slow and reactive, it can be a gross annoyance.

But ever since technological advances began speeding along on an exponential curve last century, the law has played a critical role in helping societies maintain certain previously negotiated standards for cohabitation.

Our legal system may sometimes seem antiquated in today’s fast-moving world. But before changing our laws to accommodate new technologies that may (re)define our lives, it is important to have room for debate and time for social struggles to take place.

The law serves this function of creative friction. It can restore human agency against fierce technological development.

Given all the excitement over blockchain technologies, it is probable that interested parties will soon enough seek legal recognition and state-sanctioned enforceability of smart contracts.

These emerging technologies are still too new to have been subjected to a sufficiently thorough analysis of their social, economic and political implications. More time is also needed to assess how blockchain could be deployed in a socially beneficial way.

Blockchain technology seems poised to constitute an important component of tomorrow’s society. The legal system – slow-paced as it is – might be just what we need at this juncture to ensure that this new tool is deployed in a way consistent with established principles and values, with the common good at its core.

Cross-posted from The Conversation.

Lead Image: Name Coin/Flick

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When I started volunteering for the Sustainable Economies Law Center in 2011, I was under-employed and struggling to pay rent. A friend of mine and I were operating an underground supper club hoping to earn some extra cash to make ends meet. Having previously worked in commercial kitchens, I had witnessed firsthand some of the pitfalls of our food regulatory system. That’s why I was so energized to become one of the architects of the California Homemade Food Act, aka the “Cottage Food Law.”  As I started working on a bill proposal and putting the word out that I was working on a cottage food law for California, I was thrilled to meet so many other people who were as passionate about creating thriving local food systems as I was. We organized a truly grassroots campaign around the state. After the Homemade Food Act was passed, literally thousands of new businesses were lawfully permitted in California within the first year. The passage of the law was incredibly empowering for low income community members and under-employed folks to start their own micro-food business with very little overhead. We’ve always envisioned a future law that would allow a greater variety of foods to be made in a home kitchen and sold on a neighborhood scale, furthering community-ownership of the food system.

However, the bill introduced in February is “sponsored” by a Bay Area tech company that operates a platform for advertising and payment processing of homemade meals. We are both intrigued by the power of new tech platforms to transform the economy and also nervous about the unintended side effects of apps like Uber, Lyft, and Airbnb with regards to evasion of employment laws, various safety laws, and tax laws, plus the concentration of profits and power in the hands of a few elite tech entrepreneurs and investors. Our mission is all about creating people-powered economies, not absentee shareholder-owned economies. It’s important to us that any homemade food legislation be about creating thriving local food economies and empowering food system workers and eaters.

We are worried that this homemade food legislation may ultimately be designed to meet the needs of tech companies above the needs of home cooks, eaters, and other stakeholders, but we are optimistic that if we work hard to share our vision for a better food system with lawmakers, that we can help ensure the bill works for the people of California, not just a few tech companies and their investors.

What our Law Center is proposing is for California to adopt a greatly expanded homemade food law with a stipulation about management of sales channels similar to California farmers’ market law, but tailored to the realities of the internet age. We are proposing that any web platforms selling homemade food under a new regulatory landscape would have to be legally structured as nonprofit organizations, government entities, or as cook-owned or eater-owned cooperatives.

Check out our new policy proposal overview and background here.

We’ll continue to write and speak out about our vision for a community-controlled food economy. I hope you’ll join us.

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