Chapter 4: Introduction – Of Commoners and Criminals

Proud to be Flesh Cover

Introduction to Chapter 4 of Proud to be Flesh – Of Commoners and Criminals

What do the themes of this chapter – the Great Enclosures of the 18th century, free/libre open source software, climate change, slavery and development – have to do with each other? You may well ask! The answer entails the ongoing battle to defend people’s right to access the means of survival (the commons) from capitalism’s ongoing looting of natural and human resources. This chapter draws a zigzag line between various historical eruptions of this battle, while tracing Mute’s shifting interest in the stakes of the commons as they are presently conceived and struggled for.

Mute’s interest in the commons was initially piqued by the movement to preserve a ‘public domain’ during an era of aggressive intellectual property (IP) enforcement, provoked by the increased ease of digital copying. With the hardwiring of IP protection into the international trading system in 1994, by way of a piece of WTO-orchestrated legislation called Trade Related Aspects of International Property (TRIPS), the difficulty of enforcing IP rights across borders was substantially resolved. Dreams of a free culture, underpinned by the internet, in which information could be freely circulated and shared across borders and beyond the reach of the law, was seriously imperilled.

In Summer 2001, we first addressed this area in an issue entitled ‘The Digital Commons’, which contained an interview with Duke University law professor, James Boyle, who had recently helped to initiate a campaign to protect the public domain called Creative Commons (CC). Following the example of the GNU General Public Licence (written by Richard Stallman in 1989, and adopted by Linus Torvalds to protect the Linux operating system as a free resource in ’92), Boyle, together with law professor and author Lawrence Lessig and other liberal lawyers, had developed a series of CC licences to protect creative production in general from the threat of enclosure. Copyleft turns copyright law inside out, inverting its power to enforce restrictions on use to defend the work against the misuse of restriction. Creative Commons licences, however, adulterate this pure concept of copyleft by reserving certain rights and adding caveats.

Ted Byfield’s interview with James Boyle in Mute was one of the earliest pieces to expose CC’s underlying free market politics. Boyle explains quite matter-of-factly how the intention of CC is to counteract IP’s ability to ‘mess […] up processes of beneficial competition.’ The commons, here, is understood as a necessary adjunct to the market, not as a proto-communist phase of development. However, Boyle’s willingness to entertain the idea that the Great Enclosures saved lives and helped to build contemporary democracy, by freeing people from feudal ties and vastly increasing the productivity of the land, is not entirely divorced from Marx’s own position. For Marx, the dissolution of the commons was an important step in the transition to capitalism (hence, ultimately, to communism, for which it serves as the precondition), by freeing people from subsistence production and allowing them to produce socially, i.e. as part of a totality of producers. But, Boyle’s admission does put clear blue water between CC and the autonomist politics of another notorious commons enthusiast, Peter Linebaugh, who is also included in this chapter.

Paying no heed to the digerati’s latter-day romance with the commons, social historian Linebaugh is interested here in the crisis of the enclosures of the 1720s, and their contravention of Magna Carta and the Charter of the Forest – medieval laws which had prevailed since the 13th century. These charters formed the basis of English law, not only by setting out the principles of justice, but also by defining ‘subsistence commoning’ – the use rights of the commons; rights that would be overturned as the medieval means of subsistence were swept away in the storm of finance capital known as the South Sea Bubble. As Linebaugh relates, new forms of financial liquidity in this period made possible the distributed investment of surplus value which had arisen largely from slaving. The ‘capitalist commoning’ of the slave trade was partly responsible for the increased pressure on other freely abundant resources; commoners were thrown off the land to enable the felling of trees for ship building and the supply of labour to the colonies. In the process, commoners were criminalised and racialised, described as ‘Arabs’ and ‘banditti’; and so, argues Linebaugh, was born a common global and multi-racial struggle.

The notion that contemporary digital commoners are really indulging a ‘post-materialist luxury limited to those on the sunny side of the digital divide’ while having nothing in common with their historical namesakes, is addressed by Soenke Zehle in his article on free software and Africa. The availability of a free software resource is more than a lifestyle choice for the creative workers of the developed world. While acknowledging the strong arguments for the adoption of pirated proprietary software over Free/Libre Open Source Software (FLOSS), he also emphasises the barrier to development presented by IP for countries in Africa. Where the Asian Tigers in the Cold War period were able to ‘disembed the technology from its capital base’, by simply copying other people’s ideas or reverse engineering, TRIPS has now kicked away this particular ladder to development. FLOSS, however, does offer some possibility for African countries to gain the IT base required to compete in the global economy. So, as Zehle is keen to point out, FLOSS should not necessarily be understood as an anti-capitalist philosophy, but as anti-monopolistic practice equally attractive to capitalists and states.

In this chapter’s concluding article, on climate change, Will Barnes argues that, by confronting the Earth’s natural resources as raw material, capitalism is destroying the very basis of life on which it so obviously depends. The ‘tragedy of the commons’ – the scenario in which freely given resources are destroyed by those who selfishly profit from them – appears, then, to be a better description of capitalism’s appropriation of free inputs than ancient commoning, whose use rights are clearly defined and whose culture is one of life’s sustenance. The danger with contemporary, digital varieties of commoning (especially those reliant on the logic of property) is that they end up sustaining the life of capitalists, often providing them with free inputs. Equally, it is impossible to envisage an anti-capitalist culture that can flourish in the absence of free and shared resources, resources that are needed to fight the continual erection of new enclosures.


Proud to be Flesh


James Boyle, professor of law at Duke Law School, has provided footsoldiers in the war on escalating intellectual property (IP) rights with some explosive weapons. His crucial comparison of IP to that other precious commons – the environment – has spread with viral speed. But if an ‘intellectual commons’ was to find formal recognition, would it then be best left running out of control? Here, Nettime co-moderator and net critic Ted Byfield talks Boyle into nailing his political and philosophical colours to the mast.



Ted Byfield: I have two general lines of enquiry. The first has to do with your ideas about ecology and the environment as an analogy for informatic politics; the second with your practice within the framework of US law, a field that many people view as itself a hegemonic threat. Does it offer the best overarching forms of analysis for what’s going on?

James Boyle: Well, no claim there – it’s not the best. Important battles are being fought through there, but sadly, much of what we’re doing is slowing down train wrecks. Still, the US legal framework has more resources than people give it credit for: it’s a complicated, multifaceted, philosophical-political tradition with lots of abandoned pathways to be explored. But the best? That would be silly.

TB: Is that why you adopt, in some cases, an explicitly Marxist or Marxian analytical framework? It does come as a bit of a shock to see a US legal theorist doing that.

JB: Certainly, there are a lot of ideas from Marxist, neo-Marxist, or post-structuralist work that are incredibly useful. How could anyone who thinks about social theory and property systems, or the relationship of ideology to social structure, not be influenced by these ideas? They’re some of the richest traditions we have in social theory. And a lot of mainstream work is simply a version of Marxist or neo-Marxist ideas with normative indicators turned from plus to minus – or from minus to neutral!

TB: Well, I agree, as would lots of others. But isn’t the role these sorts of ideas play within the practice of US law limited at best?

JB: Well, if I was working on an amicus brief <1> , I certainly wouldn’t be citing the Grundrisse or An Analysis of Alienated Labour, so, yes, there are limitations on what kinds of political theory you can overtly bring into work directed towards a court. But American legal academia is surprisingly broad and open to a variety of viewpoints; if it has a problem, it’s not one of simple exclusion but of omnivorousness – everything is grist for its mill.

As to American legal practice, there’s the legal system in the sense that people outside of law think of it: rules, courts, expectations about how officials behave, and so forth. But even there, there are very explicit arguments which appeal to different visions of the ways that societies can malfunction: “We need to worry about majorities tyrannising minorities,” or “No, we need to worry about powerful elites pursuing factional ideals,” and so forth. These ideas form a large portion of American law, which tends to be much more explicitly policy-oriented and politically regarding than other common law systems. And people do fairly quickly appeal to them.

But I won’t romanticise it: there are lots of ideas that don’t get discussed, and overall it does t end to focus on the dangers of rampant populist majorities more than on the dangers of disenfranchised, alienated, and passive majorities. It’s not a completely open field.

TB: How has that field changed, in your experience?

JB: During the 1980s and 1990s there was a revival of a republican – with a small ‘r’ – tradition, which no longer spoke of a constitutional tradition devoted to a liberal image of a State envisioned simply as a neutral and transparent framework in which atomistic individuals pursue their own individual value preferences without any possible rational assessment. Rather, this other tradition holds that the goal is to build a well-functioning republic, which depends on democratically active citizens; and that, in turn, implies many other things – for example, state intervention to shape the media and responsibilities to fund education.

Now, that’s a different rhetorical tradition than the Democratic Socialist tradition in Europe, although it shares themes with it: the belief that well-functioning citizens are not completely cut off from their economic circumstances, that the republic does not function very well with massive wealth disparities, that there are certain material requirements for things to work, and that the State sometimes needs to intervene to produce something which is affirmatively seen as good – in this case a democracy-enhancing, participation-enhancing politics.

That’s a theme or a strand in American law: you can see cases here, lines of thought there. When you make an argument, both academically and to a court, which plucks on those themes, it’s not alien: you won’t hear, “What on earth are you talking about?!” It may not win the day, but it’s not seen as completely beyond the pale. So my own view of law is that there’s a lot of room for making arguments like that, even narrowly, to decision-makers, that is, to courts or legislatures – although always acknowledging the massive constraints there!

More broadly, though, legal ideas have so permeated political space in the United States. Often this is not a good thing. For example, the idea of viewing politics as ‘rights’– there are real problems with this. But one works from where one is; and in a political sphere which has been ‘legalised’, so to speak, legal arguments can have influence far beyond their actual domain of applicability.

As an example of that, you’ll often hear people complain, “That company can’t tell me what to say when I work there because I have a First Amendment right!” Well, of course you have no First Amendment right against a private actor. Nevertheless, the idea has floated free of its narrow legal incarnation and become a more general notion that speech ought not to be regulated by powerful entities – which is far from the actual legal rule.

TB: OK, so legal practice is very heterogeneous: legislatures that craft laws, various courts in different kinds of jurisdictions, and all manner of relations within a broadly based legal community. But isn’t theoretical work influential only at the highest levels? How does one go about presenting a provocative idea, for example, ‘ecology’ or ‘environmentalism’ as an analogue or homologue for the digitalisation of culture? Where does the rubber meet the road?

JB: At every level. It would be a huge mistake to concentrate one’s energies merely on making clever arguments to Appeals Court judges or to court clerks. One of American liberalism’s dead ends has been the notion that if we just come up with a really great rights theory, all we have to do is convince five out of nine people in a building in Washington, D.C., and we win automatically, we win ‘everywhere’. <2>


This is why I think the environmental movement is a good analogy. If you look at the kinds of ideas produced by the environmental movement, you’ll find people arguing at quite high levels of discourse: discussing the extent to which ecology, or our understandings of ecology, shows how limited is our ability to map changes to a physical system which rapidly become quite chaotic – and how this prevents us from predicting consequences very far down the road.

Say you start by clearing out a harbour, and it turns out to cause a parasite population to explode, which in turn destroys shellfish, which in turn undermines otters...fairly quickly, the whole thing spins out of control. Now, these are arguments made at one level, a very ‘fancy’ level, to people in the [US] Environmental Protection Agency. But the argument also functions on a very common-sense level. People who are considering whether, for example, a new power plant should be constructed may say, “Well, they claim such-and-such, but they don’t really know, do they?” That’s hardly an elitist argument.

One of the many things to learn from the environmental movement – not just the environment but the environmental movement – and one of the reasons I picked it as an analogy is that it didn’t locate itself at any one level. But nor did it fantasise some set of powerful policymakers and make highly idealised arguments to them in the belief that one day someone would read an article and translate it into State policy. Both of those approaches strike me as dead ends.

And, after all, there’s a lot of stuff between those extremes: mid-level policy analysis, or purely technocratic economic arguments, to mention only two examples. I’m making the latter kind of argument for a reason, namely, that the economic discourse doesn’t capture it all; you can point out that even on its own terms this makes no sense.

TB: What’s a good example of an environmental idea that’s undergone such a development?

JB: Take Pigouvian externalities – the notion that unless you’re forced to internalise the cost of your actions then you won’t make optimal use of resources, and frequently will exploit them in ways that will despoil your environment. Sixty or seventy years later, we hear this on talk shows: somebody will say, “Well, shouldn’t gun manufacturers, or tobacco manufacturers, or producers of acid rain be forced to pay for the related costs? If they don’t, they’ll just get away with doing it for free!” Well, that’s the Pigouvian idea brought to a level where it makes sense to many people. If you’d said in 1920 or 1930 that this idea, then being presented in a highly abstract economic argument, would one day be a sort of a commonplace in popular culture, people would have said that was ridiculous.

However, it’s not just a question of producing accessible versions of fancy ideas; there’s movement both ways. Popular fights over Love Canal, over burning rivers and so forth, produce the policy discourse needed to articulate these ideas.


TB: You’ve written about the commons, on the one hand, and environmentalism, on the other. Historically, these two ideas are quite distinct: they arose in different regions with dramatically different social and political conditions. Do you see any contradictions between the notion of an ecology and a commons?

JB: Contradictions? Well, one of the most exciting things about these analogies are the multiple parallels.

Take the Enclosure Movement and viewing our current circumstances as a kind of second enclosure movement. In both cases, private groups appeal to the State, saying, “Help us to fence this off, and change the property rules to allow us to do it – only thus can we move to higher, more efficient form of production.” So many dimensions of the Enclosure Movement have been written about: what it did in terms of social structure, of future politics, of concentrations of wealth, how it disrupted our relationship to the land, with attendant changes in meaning and semiotics. All these dimensions seem to be applicable to our current condition: questions about our relationship to our own genes, to cultural changes as culture becomes commodified...

Some contemporary economic historians have argued – and it’s a very important point – that the Enclosure Movement saved lives and helped to build contemporary democracy by producing groups no longer tied in a feudal way to the land. And it did, by vastly improving the productive power of inefficiently run land systems. Now, this is the kind of claim being made by big pharma: private property saves lives. It’s extremely important to take that argument seriously; what’s more, it may actually be right in some cases. If one could grant a monopoly right to someone for twenty years on a drug which cures a disease affecting millions, there are worse things than having to pay through the nose for it –if, after twenty years, it will be available for pennies. It doesn’t quite work that way, of course: we end up with more stuff for obesity and male pattern baldness than we do for sleeping sickness or malaria – and then the drugs get evergreened. But, still, we must at least take claims of this kind seriously.

We tend to think about the commons mainly in terms of the tragedy of the commons – the claim that it fosters inefficient resource use. That notion has driven a lot of remarkable environmental scholarship: there’s a counterweight of scholarship arguing that commons can run quite well. For example, Carol Rose at Yale has written a great article called ‘The Comedy of the Commons’ <3> arguing that, in some cases, a commons may in fact be more efficient. However, that speaks only of efficiency terms; it leaves aside many other values. Another example is Elinor Ostrum, who has written about management of the commons, examining whether it’s true that we must move to a neoliberal model in which everything is commodified. n=4 Neoliberals say that the problem is there aren’t enough property rights, that we’ve gone only halfway – and that once we go all the way the market will clear. Ostrum and others like her have argued that it’s not true that all commons are tragedies: they develop interesting, complicated mechanisms, both informal and formal, for governing themselves – and sometimes they work better than formalised, top-down control systems marked by a single controller of the resource in question.

Now, Ostrum isn’t writing about the free software movement; she’s writing about the management of traditional water systems, air rights, and so forth. But it’s a very interesting notion that, in the free software movement, we effectively have a management of a kind of commons. Clearly, it has lots of rules: some are legal – the GPL – some purely contractual, some are customary, like prestige or shame-based economies.

So, to return your question, if there is a line between the Enclosure Movement and the commons and the fights of the fourteenth century through the nineteenth century, on the one hand, and the environmental movement, on the other, it’s not a straight line.

The story of the Enclosure Movement is retold by economists as the story of the tragedy of the commons; and the tragedy of the commons, in turn, is at the heart of many environmental problems that have produced all kinds of possible solutions.

TB: So it sounds as though ‘importing’ ideas – the commons – into American law as ‘alien objects’ is a fairly powerful way of generalising US law. At the same time, though, that kind of generalisation is happening anyway for other reasons: say, absurd situations in which the proverbial Inner Mongolia are concerned about the ‘First Amendment rights’ because ideas like that have become so predominant on the Net.

JB: Oh, and in other ways, too. There’s been some remarkable historical research that breaks these ideas down inside the United States as well. For example, Betty Mensch at the State University of New York at Buffalo has written about colonial property regimes in New York. As it turns out, the colonists assumed that we all own the land, and they divided it into private parcels; but contrary to what we may have thought, when new arrivals came, it was re-subdivided to account for the new arrivals, lest they be excluded. So, as is always true when you step up the power of the microscope, apparently homogeneous things aren’t so homogeneous.

Another example – with a very different normative valence – is the open range, and the fights between the ranchers and the farmers. There are a few different notions at work here: one holds that the land is infinite, so it doesn’t matter how big a claim someone stakes, the other is that it’s not owned by anyone. Each reflects a different kind of romanticism. And these romanticisms aren’t the same as that associated with the lovely commons, where we all play around the maypole – though it does have similar features. So it’s certainly good to import ideas in order to shake things up a bit; but you also need to look closely at indigenous traditions.


TB: These constellations of issues are largely drawn (or forced) together by ‘technology’, or at least by theories of technological determinism, which are very hard to evaluate. Several years ago there was a spate of books about how things are ‘out of control’ – Kevin Kelly, Manuel De Landa, and so on – which presented the condition as an extremely fruitful and creative; but now we seem to be more retrospective, or at least willing to consider whether it’s instead a dangerous condition. In part, these evaluations are defined by how we periodise our circumstances. When and how does one ‘stop’ a system in order to assess its dominant dynamics? And don’t those initial choices determine the outcome of one’s analysis?

JB: Well, funny enough, at least half of the libertarian-anarchist types I’m aware of – Kevin Kelly, the Cato Institute, the Progress and Freedom Foundation, and so forth – totally agree with my work. In their view, a wonderfully chaotic, spontaneous, decentralised system was forming until the State came along and mucked things up by imposing regulations like copyright, patent, etc. These, in their view, were just the same old things the State’s been doing badly – massive rents being handed over to moneyed interests – messing up processes of beneficial competition. Yet we gave these expansive property rights, along with many others – for example, to polluters – without forcing them to pay for the costs of their pollution. This could be seen as the result of control rather than the result of lack of control. It’s up for grabs whether things like copyright and intellectual property are seen as sacred property, as the foundation for a spontaneously operating decentralised market, or, rather whether the danger is that the absence of any regulation tends to push things out of control.

TB: So perhaps the question of periodisation as such has become a battleground and we’ve ended up in a systemic situation where there’s no consensus about ‘when’ we are.

JB: If so, I see that as a good thing. A lot of the bad things going on now rely on triumphalist neoliberalism, with its beliefs that we’re at the end of history, that market democracy has won, and so forth. It irritates me immensely that not only do a lot of people accept this story blindly, but that they haven’t even looked back to the extremely good arguments made about market triumphalism the first time it appeared: the response to the Gilded Age, the contributions of welfare economics, and so forth. These responses still make a lot of sense; it's amazing how they’ve dropped out of popular consciousness. Part of my work, then, is simply a rediscovery of the work of people like the Legal Realists and the institutional economists of the 1930s.

It’s easy to see doom and gloom in intellectual property and the march of commodification; there are certainly lots of negative things going on. And yet there’s also an amazing openness in these debates. People are actually asking if it’s better to have property or not. And seventeen-year-olds are saying, “No, you probably end up with better stuff in the absence of property rights” – and not because they’ve been reading Kropotkin. They’ve been reading Richard Stallman or Linus Torvalds. That’s important, and not because free software is important, although it is; rather, it suggests that there is not any inexorable historical logic to this particular moment – and that our particular ideas about property are very much up for grabs. The Internet, the Ensemble Project <4>, the Human Genome Project may represent a story in which we end up better off with less centralised control, one in which strong property rights might actually be bad.

TB: These shifts sound as though they’ll present some serious predicaments for the Left, or political liberals, or progressives, or whatever one wants to call them.

JB: Well, it’s pushing the Left if not exactly toward a libertarian position then towards a position which is more sceptical of these technologies of control, whether imposed by governments or by private parties. How often do you find yourself agreeing with libertarian ideas? I find myself agreeing with libertarians more often in terms of the Net much than in terms of other communications media. And why is that? It could be that I’ve been completely taken over by the power of the discourse – in fact, that probably is part of it. But another reason is that arguments about regulation often take the form of a normative, conceptually driven slippery-slope argument: “If we start by doing this, then that will inevitably lead to doing other things.” Technology doesn’t change everything in the way the techno-fantasists believe it does; but Larry Lessig’s <6> work is absolutely right with regard to the Net and the universalising power of code. With the Internet, the slippery slope isn’t so much a normative slippery slope anymore: A is conceptually like B, so if you do it to A you must do it to B. Rather, it’s a technical slippery slope. The technology that would give us the power to enforce, for example, municipal ordinances related to what some regard as ‘pornography’ would also allow the Taliban to filter extremely effectively for women’s education. And that tends to make you wonder if the game’s worth the candle.

However, we also need to ask what this does to traditional libertarianism. Libertarians argue, “Well, we’ll hand over to you an absolute property right, and whatever you want to do within that property right is your thing and we can’t interfere.” But intellectual property rights are the problem case for that view, because they make it very clear that these rights are not ‘natural’, and that they have powerful impacts on what others can do – in all kinds of contentious ways. And there are no clear lines demarcating harm.

TB: How else is this affecting the political landscape?

JB: Well, for example, through most of the 1980s and 1990s, I agreed that the US Federal Communications Commission (FCC) should be able to exercise some pathetic little fragment of control over broadcasting in the United States – to impose, for example, requirements that some kind of non-commercial children’s television should be available. Their justification, both practical and constitutional, was that broadcast was based on scarcity: spectra are scarce, and they have to be allocated on the basis of scarcity. But with new techniques like frequency-hopping, that argument becomes problematic: what scarcity are we talking about?

Yochai Benkler <7> has pointed out that now liberals and conservatives are both lining up to support privatising and propertising – selling, not just issuing temporary licenses for – the airwaves: liberals because they like the prospect of the government getting the money, conservatives because they like the idea of everything being turned into private property. The FCC agrees that they can sell it off, but they still maintain their belief in scarcity and insist on acting as the boundary police. Well, should we support that, or should we instead acknowledge all the new possibilities f or building something like the Internet in the wireless spectrum? Such a system would probably include smart terminals acting as senders and receivers, using packet switching and allocating spectrum dynamically. In effect, we’d all have our own little radio station: no one entity would have 93.5 on the radio dial.

Now, that’s going to lead to a lot of Rush Limbaughs. But is this a vision which might lead us to say we need less control? Or should we maintain the last pathetic gasp of a role for the interventionist State in seeking to regulate this allegedly scarce resource? Now suddenly, we’re sounding rather libertarian, which is not the position that the Left has always taken. It’s not that the State has no role; the State has a very important role – but it’s a different role than it had in the static, finite-spectrum, one-to-many communications. These questions pose challenges to the ideologies of both Left and Right. I have no easy answer; but we cannot just go on finding arguments to support the positions we took last year.

Ted Byfield <tbyfield AT> [] co-moderates Nettime, teaches at the Parsons School of Design and wrote ‘Exporting the Apocalypse’ on Lawrence Lessig’s work in Mute16. His new ‘boy scout pledge’ is Mute’s objective – as diagrammised in ‘ceci ne’st pas un magazine’ (Mute19).

James Boyle []

>> Photography by Daniel Jackson

Proud to be Flesh

Goatherds in Pinstripes

Free marketeers who argue against private property rights on the internet, intellectual property lawyers trying to emulate the environmental movement – what could possibly account for such peculiar behaviour? Gregor Claude digs up the digital commons

Digitopia seems to have died. A couple of years ago received wisdom had it that the internet was a new realm of freedom, unbound by the regulations and restrictions that controlled life offline. The internet seemed to exist in the absence of law, outside of any particular state’s jurisdiction. It was as if law had been transcended through information technology. But more recently we have seen a string of copyright-related lawsuits, legal intimidation and legislation. Napster was shut down by a judge and then bought by one of the plaintiffs; Princeton computer science academic Edward Felten was threatened with legal action by the Recording Industry Association of America if he published his research into encryption; Russian programmer Dmitri Sklyarov was arrested under the US Digital Millennium Copyright Act because he wrote software allowing people to read Adobe Software’s encrypted version of Alice in Wonderland, a text already in the public domain and legally available for free. These events have made it abundantly clear that the law had been there all along.

The latest project to come out of Washington, that legislative workshop of the world, is the Security Systems Standards and Certification Act (SSSCA), a proposed bill that would mandate built-in hardware copy-control protection in all new PCs and consumer digital media devices, from your walkman to your computer. According to Wired, who have obtained a draft of the SSSCA, the law would create new federal felonies, punishable by five years in prison and fines of up to $500,000, for ‘anyone who distributes copyrighted material with “security measures” disabled or has a network-attached server configured to disable copy protection.’ It would be illegal to create, sell or distribute any device capable of ‘storing, retrieving, processing, performing, transmitting, receiving or copying information in digital form’ unless they contained certified copy protection technology. Hang on to your old computer because it just might be more functional than next year’s model.

The law was drafted in close consultation with none other than global culture industry giant, the Walt Disney Corporation. Disney’s executive vice president Preston Padden claimed the law was an ‘exceedingly moderate and reasonable approach.’ Padden’s idea of reasonable and moderate is chilling; at an event in December 2001 he dismissed criticism of the SSSCA, saying ‘There is no right to fair use. Fair use is a defence against infringement.’ In copyright law, fair use means the right to use copyright material, regardless of the wishes or intentions of the copyright owner. This means that when you buy a book, you can quote it elsewhere, criticise it or cut it into bits and make a work of art if you are that way inclined. For Disney’s Padden, the fair use provisions of copyright law amount to an unfair tax on the copyright holder, as if public access to copyrighted knowledge or culture is some kind of pinko perversion. It’s as if montage was a criminal act. Next time you feel that cut and paste urge coming on, make sure you look over your shoulder and check if Big Mickey is watching you.

When this is what passes for reasonable in Washington and beyond, it comes as no surprise that the nucleus of an attempt to counter this copy protectionism is emerging. Increasingly, arguments against stronger intellectual property rights deploy the concept of the ‘digital commons’ (see Mute 20). November 2001 saw two key moments in this emergence. The first was the release of Lawrence Lessig’s The Future of Ideas: The Fate of the Commons in a Connected World. Following on from his 1999 book Code and Other Laws of Cyberspace, Lessig’s new book reads like a manifesto. It doesn’t pretend to hide its goal of doing for the digital commons what Rachel Carson’s Silent Spring did for the natural environment in the 1960s. The second key moment, the Conference on the Public Domain held at Duke University, was co-organised by the Center for the Public Domain and Duke’s James Boyle. The conference brought together the leading figures of the digital commons debate, focussing on Boyle’s keynote paper, ‘The Second Enclosure Movement and the Construction of the Public Domain.’

These two events bring into sharp focus the critique of intellectual property and defence of the public domain or commons, and could come to be seen as the founding moment of an important new campaign. Whatever their future, they have set the tone, established the language and introduced the concepts of a challenge to the privatisation of culture online. Yet both Lessig’s and Boyle’s approaches have significant weaknesses. But before discussing where they’re coming from… what are they talking about?

THE COMMONS: FROM GOATHERDS TO SERVER FARMSSo what is the digital commons? First, an important clarification: we are not talking about commons as in the Parliamentary House of Commons, but commons as in the village commons, a resource held in common. Even without peculiarly British confusions, Boyle acknowledges that the commons can be a ‘distressingly messy’ concept, subject to many different interpretations. Here is Lessig’s description:

It is commonplace to think about the Internet as a kind of commons. It is less commonplace to actually have an idea what a commons is. By a commons I mean a resource that is free. Not necessarily zero cost, but if there is a cost, it is a neutrally imposed, or equally imposed cost… No permission is necessary; no authorisation may be required. These are commons because they are within the reach of members of the relevant community without the permission of anyone else… The point is not that no control is present; but rather that the kind of control is different from the control we grant to property.Lessig goes on to give examples of commons: Central Park, public streets, Fermat’s last theorem, Linux source code. These resources exist outside the normal rules of property. It’s not that commons are the opposite of property, but they lack property’s key feature: the exclusive right to use or access the object owned.

In a world based on the production, circulation and exchange of privately owned commodities, the commons have always proven a bit of a headache for mainstream economists. Today’s discussion of the commons is informed by an influential paper published in Science in 1968 by Garrett Hardin, called ‘The Tragedy of the Commons’. In it, Hardin argues that resources held in common are doomed to inefficient misuse. ‘Picture a pasture open to all,’ begins Hardin. As the story goes, each herdsman will try to keep as many cattle as possible on the commons. Adding one more animal to his herd imposes a shared cost (goats gotta eat) on all the herdsmen, but the gain of the one extra animal belongs exclusively to its owner. Alas, all the herdsmen come to the same conclusion. As Hardin continues with the literary flair of a modern Ezekiel, ‘Each man is locked into a system that compels him to increase his herd without limit – in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom in a commons brings ruin to all.’

Now you might think this is a misanthropic and ahistorical Malthusian argument for restraint whose assumption that ancient goatherds can stand in for the modern, rational individual acting as a self-maximising subject could be dispelled by a look at some elementary anthropology, but never mind that now because the essay has been hugely influential in both the environmental movement and in economics. It is important here because it sheds light on why the digital commons is different.

Lessig spends the first hundred pages of his book detailing the ‘building blocks’ of the digital commons – he is providing an exhaustive account of why and how the internet functions as a commons. If you don’t know how the internet works and want to find out, start here. This is a fascinating tour of what makes the net a unique medium that will in places leave you awestruck at the untapped potential of this technology, and even more awestruck at the genius of the scientists and engineers who put it together. If you know this already, prepare to skim read. But for Lessig, the main point of going through this technological detail is to demonstrate how the physical network of the internet, as well as the open source software it runs on, is a common resource that all can access without discrimination.

This is not to say that everything on the net is free and uncontrolled. Servers and cables and so on are always owned by some entity; access to many files is restricted. Of course there are private roads, Lessig would argue, but the road network is still a common resource. Or take another example: the routers that send data packets across the internet don’t discriminate based on the content of the data packet, they treat all packets equally. This is a ‘dumb’ or ‘end to end’ network: all data processing takes place at the network nodes rather than in the network. It would be conceivable to run a more centralised network, where for example different data types would be routed according to different priorities. But with the internet today, all the network does is transmit data: it is a neutral network. So while the routers are not your property, you use them as a common resource when you connect to the network.

So the internet is a commons, but how can it escape the fate of Hardin’s greedy goatherds? The internet is what economists call a ‘nonrivalrous resource’. You can have your cake, eat it, and distribute a round for all your friends at the same time; a nonrivalrous resource is undepletable. Digital media on the internet is in a permanent glut; this is an economy not of scarcity but superfluity. Bottlenecks might occur in bandwidth or storage space, but not in content.

There is one final aspect to the digital commons, and one that provides the strongest argument in favour of maintaining the internet as a commons. As Lessig puts it, ‘all the stuff protected by copyright law… depends fundamentally upon a rich and diverse public domain. Free content, in other words, is crucial to building and supporting new content.’ The case can be made even more strongly: the raw material of culture is culture. Creativity always appropriates the results of past creativity. New culture continually re-purposes already existing culture, making it into something new. Digital media, in addition to allowing more perfect control, also allows more perfect appropriation.

This capacity for appropriation opens up new possibilities for culture. It also points to the internet as more than just a nonrivalrous common resource, but as a resource that actually increases in both quality and quantity the more it is used. The ability to exploit, repurpose, consume and appropriate digital content as a commons creates a virtuous cycle, acting as a cultural accelerator.

THE CHICAGO SCHOOL AND THE CASE FORMAXIMUM IP CONTROLDisney’s Padden and the SSSCA also use the language of innovation. But instead of seeing the locus of innovation at the level of a dispersed network, drawing on and contributing to a common digital resource, they see large culture corporations as the incubators of creativity. For them, tight copy protection is necessary to allow these creative corporations to flourish.

This view is informed by ‘Chicago School’ economics, the tradition of free market economics associated with Milton Friedman and others that emerged in the 1960s, shaped the Reagan-Thatcher years, and is still influential today. For the Chicago School, resources are always more efficiently used when distributed by the market. The legal wing of the Chicago School, initiated by judge and scholar Richard Posner, is known as the ‘law and economics’ approach and is today the most widely accepted doctrine among the US Judiciary. For law and economics, law is not seen as an instrument of justice or of social order, but above all as a tool to help markets run smoothly and to promote social wealth. Accordingly, all social phenomena could be understood as the result of rational choices based on costs and benefits, and law was no different. Ascendant in the 1970s and effectively institutionalised under Reagan in the 1980s, law and economics transformed the application of anti-trust law. What was once a populist measure to check the power of big business became a means of smoothing the path for US corporations.

Preston Padden really does think that his approach and that of the SSSCA is ‘exceedingly moderate and reasonable.’ From their point of view, the internet is an enormous risk. For ‘content companies’ like Disney, it is imperative to maintain exclusive control over their copyright material. They look at the internet and see an unstable and uncertain market they cannot trust. They cannot guarantee the integrity of their goods. The cost of this uncertainty, and of any potential losses, must be taken into account, and the consequence (threatens Disney) is that they will not be able to support the same levels of investment in developing new content.

From this perspective, the internet has created an imbalance in the market, and legislation is needed to restore market equilibrium. If the cost of copying has plummeted, then the strength of copy control should be increased in equal and opposite measure. The justification for this control is the free market assumptions of law and economics (though Judge Posner, infamous as a contrarian, has argued against such a conclusion). The logic of control today is not alien to the market, but rather emerges from it.

LESSING, THE FREE MARKET, AND THE INTERNET ANOMALYIt seems peculiar at first that there are so many similarities between this argument and Lessig’s. Indeed, as it turns out, he is something of a Chicago School prodigal son: Lessig was Posner’s clerk from 1989 to 1990. Though they evidently have plenty of disagreements, Lessig has conceded Posner’s influence: ‘We are all law-and-economists now.’

Lessig’s free market proclivities periodically pop up through his book like awkward spotty teenagers. ‘Though most distinguish innovation from creativity,’ he writes, ‘or creativity from commerce, I do not’. And there I was thinking that always casting culture and experimentation in terms of commerce was part of the problem. In a later example of failing to distinguish markets and innovation, he writes, ‘coders learn what free markets have taught since Smith called them free: that innovation is best when ideas flow freely’.

So how does Lessig square his passion for the market with the digital commons? In one of his important differences with the traditional Chicago School, he is strongly anti-monopoly. Lessig echoes the concerns articulated by free market theory of the late 1980s and early ‘90s. At that time, fashionable economic theory sought to re-emphasise the role of the entrepreneur in contrast to the situation J K Galbraith had described in the ‘The New Industrial State’. Galbraith’s analysis of the post-war ‘industrial system’ sketched a bureaucratic system in which businesses, governments and unions had all ceded control to a quasi-autonomous technostructure resistant to nearly all attempts to alter it. After the first wave of the Chicago School sought to deregulate corporations and cut them loose from this technostructure, later Chicagoans became frustrated with the notion that businessmen were paralysed by structure, and fell on the idea of celebrating the innovation of the entrepreneur. Lessig echoes this repeatedly in discussions of the role of the digital commons in ‘lowering the barriers to entry’ into a market. It is as if he aspires to an internet agora where intellectual and cultural producers are not held down at the neck by giant copyright corporations, but are rather cultural entrepreneurs or knowledge entrepreneurs who enter the marketplace of ideas or the marketplace of culture, whose barriers to entry are minimised by state regulation.

But most importantly for Lessig, the internet is the great exception to the market rule. He writes, ‘to the extent a resource is physical – to the extent it is rivalrous – then organising that resource within a system of control makes good sense. This is the nature of real-space economics; it explains our deep intuition that shifting more to the market always makes sense. And following this practice for real-space resources has produced the extraordinary progress that modern economic society has realised... But perfect control is not necessary in the world of ideas. Nor is it wise.’ He continues, ‘The digital world is closer to the world of ideas than to the world of things.’ In the end, then, the digital commons is a technical issue: it is only because digital media frees information from the ‘real-world’ printed page that it becomes inefficient to organise ideas as tightly controlled property like books.

Of course, it’s not that this diminishes Lessig’s campaign particularly, but it certainly gives us a better idea of what it is about. It is striking that underneath it all, Lessig’s digital commons is nothing more than a well functioning market. If the right laws are passed and the right code implemented, a harmonious free market will deliver innovation. At a time of severe ‘market creep’, when market relations persistently encroach on life, the case for campaigning for its extension through cyberspace is less than convincing.

BOYLE'S RHETHORICAL LOBBYJames Boyle is less hung up on the market; he is more likely to talk about market failure than about market efficiency. He comes from the ‘critical legal theory’ tradition, drawing on postmodernists like Michel Foucault and Stanley Fish to understand law as a ‘discourse of power’. But for all Boyle’s postmodernist references, his approach is much more like the traditional single-issue lobby that Washington knows how to work with.

His reference point and role model is the environmental movement. As he describes it, it is a loose coalition of groups and interests. Their aims, strategies and tactics diverge, but they share a unifying concept of ‘the environment’. It is a concept that is in many ways a fiction, notes Boyle, but it is a rhetorical strategy that alone can bring a large group of varied interests under one umbrella. Accordingly, the campaign for the digital commons for Boyle begins with its rhetorical invention: ‘the language of the public domain will be used to counter the language of sacred property’.

But the problem with the linguistic approach of the postmodernists that Boyle adopts is particularly stark when applied to the idea of a public domain. Can a public domain or common resource really be built on nothing more than a structure of belief and a rhetorical strategy? Conspicuously absent in this proposal is… the public. Public spaces, whether real or digital, are so easily enclosed or privatised because the public claim to them is so weak. The privatisation of public life began as a political process long before the internet hit the shelves, and it is no surprise this privatisation is reflected online. A linguistic postmodernism that reads all the world as text enables a rewriting around the problem of a diminished public and political sphere rather than addressing the problem and attempting to resolve it. For Lessig, the digital commons can exist because it is a technological anomaly not subject to market organisation. This allows him to ignore the thorny issue of the public. The danger is that Boyle’s linguistic first step may in the end be just as empty as Lessig’s technological one.

The environmental impulse could too easily echo the problem by creating a coalition to provide an interface between government and a minority lobby, perhaps with a broad base of passive public moral and financial support. The politics of the environment is too often that of self-appointed guardians of a resource that the general public and big business combine in ignorance and avarice to despoil and pollute. Again, this is a model dangerously conducive to building on public passivity rather than challenging it.

Boyle’s use of environmentalism reflects the limits of political possibility that exist today. Recognising the need for an information politics, he takes a prefabricated contemporary political form and wants to pour information politics into it. But to have real substance, the public domain can’t do without the public.

INFORMATION POLITICS - INFORMATION FOR WHAT?The digital commons debate opens up a field of possibilities, my criticism notwithstanding. Boyle and Lessig are two of the great pioneers of that opening. Many others have now begun to think about how these issues can be used politically. Most ambitiously perhaps, Michael Hardt of Empire notoriety has recently been working on intellectual property and other forms of what he calls ‘immaterial property’, arguing that they present the opportunity for making a new communist case against private property as a whole.

Whether or not any of this work leads anywhere, there is still an important unanswered question that the issue of information control runs up against: information for what? Why should anyone care who controls knowledge if there is no perception of a particular need for it? Programmers need the software source codes that the free software movement is fighting to make freely available because they are the tools of their trade. People get upset about the file-sharing issue, exemplified by the Naptser case, because the lawsuits and legislation pushed by industry lobbies are a barrier to the steady, cheap flow of their cultural consumption. The concern for control over biotech patents is rooted in either a precautionary fear of the possibilities of science, or from a different angle, a concern with the supply of medicine to, and the exploitation of, ‘underdeveloped’ countries. These are issues of concern, but nevertheless are a narrow focus. The missing question is, ‘knowledge for what?’

Gregor Claude <gregor AT> is at the Centre for Cultural Studies, Goldsmiths and is writing a PhD on digital media, copyright and the culture industries

Conference papers from the Conference for the Public Domain []

Drawing made in Mexico by Quim Gil, inspired in the rural life of states like Chiapas, in which traditional common resources and common activities are being pushed away agressively by the corporations' tentacles and the ‘public’ institutions (ignoring the public interests). He is travelling through Latin America in the context of an online journalism project: From América, With Love ( He is also participating in the design and development of collaborative projects compatible with the concept of 'digital commons' such as and (an open-sourced political party).

Follow-up on

Proud to be Flesh

Commercial Commons

Creative Commons advertise their licenses as the best-of-both-worlds between copyright and the public domain. But is the word 'commons' then a misnomer, and can such licensing be subjected to the same abuse as copyright? Saul Albert raises the question and a discussion within the University of Openess Wiki follows

The Creative Commons licenses have become a kind of default orthodoxy in non-commercial licensing. Every unpunctuated half-sentence spilled into a weblog, every petulant rant published by 'Free Culture' pundits, every square millimetre of Lawrence Lessig's abundant intellectual property is immediately and righteously staked out as part of the great wealth of man's 'Creative Commons'.

First off, this proposal still holds the basic assumption that everything I make and say is property which in most areas of 'creative' work is both ridiculous and reactionary, as well as generally objectionable. The logic that more politically aware CC. pundits use; that you can't ignore the reality of the market and you have to use copyright to fight copyright is fine in theory, but makes the assumption that every maker and sayer has equal recourse to legal process. Putting aside, for a moment, this little problem of economic and legal inequality, I am still suspicious of anything advocated strongly by clever, sleek, young lawyers. Are they really 'streamlining' the legal process? Cutting out the armies of jabbering middlemen in their patronising promotional movie? Or, are they waxing lyrical about a supposed 'commons' while making the convoluted mess of intellectual property ownership even more complex and impossible for lay people to negotiate? Imagine the process of making a new work with copyleft material:

'Hmm... let me see, I can reproduce this part of that lyric, but I have to credit it, and this bassline allows me to sell the piece, but means my tune has to have the same share-alike-non-commercial license on the whole track, and using this guitar riff means I have to make sure anyone who uses my tune abides by the Geneva Convention on Human Rights.'

Yes, some of these 'pick and choose' licenses even have such moralistic overtones. The 'Common Good' public license insists that the use of anything licensed by it must not be used in a way that contravenes the Geneva Convention. Everyone is in favour of the Geneva Convention, but this is so unimplementable as to be purely symbolic. Although the prospect of AC/DC suing the US military for blasting 'insurgents' in Fallujah with 'Hell's Bells' is appealing, there are many far more effective ways, both symbolic and material, to contribute to Human Rights causes. If I want other people to use my work and have already made the conceptual leap to contributing to a public domain, why would I want to impose arbitrary, untested restrictions on them? I certainly don't want their arbitrary restrictions imposed on me.

The public domain is about non-ownership, not more accurate descriptions and granularity of ownership. Licensing structures like the Creative Commons help copyright owners and their lawyer lackeys catch up with today's faster moving, smaller-scale and more intricate network of information exchange between 'prosumers', not by 'freeing' it, but by describing it as intellectual property more efficiently.

> Original Cartoon concept and design for above illustration by Neeru Paharia, original illustration by Ryan Junell, photos by Matt Haughey, licensed under a creative commons license

The clue to whose interest is served by that efficiency is in the cringe-makingly patronising spiel about 'human readable', 'lawyer readable' and 'machine readable' licenses. The solution to incomprehensible legalese is not to say 'oh, you poor little human, you shouldn't have to take responsibility for your own labour, let us take care of that'. The solution is to reform arcane legal language and customs so that everyone can understand them. If half the Creative-Commons-license-using bloggers donated half the money and time they spend on trendy haircuts to initiatives such as the Plain English Campaign, the 'lawyer readable' section could be obsolete within a year.

And the machine readable part? I can already see the software these shysters are going to build. You'll no longer need to call your lawyer when someone plagiarises you (or weaponises your music). There will be automated systems that will discover licensing inconsistencies, call the appropriate lawyers who, (as part of the Creative Commons service) will simply bill your credit card for their micro-legal-fee, and credit your account with an out-of-court micro-settlement. You might find out about the whole ordeal when checking your credit card bills at the end of the month, wondering why you're getting poorer and poorer while the solicitor next door has just installed a jacuzzi in his back garden.

There are some fights worth fighting - like the fight for someone to be able to make something that does not become intellectual property by default, the fight for an accessible and fair legal system, and the fight for someone's right to make a living from their work without having to sue anyone. That is what copyright is for. It works. It has been tried and tested in the courts for hundreds of years. The enemies in this fight are the greedy, powerful people and corporations have bullied copyright law into an absurdity, and will continue to abuse any other system that anyone comes up with until we make them stop existing.

Discussion among University of Openess Wiki users

To a point interesting but I think you have a fundamental misunderstanding of copyright law and the aim of Creative Commons licences (I am one of those lawyers).

CC aims to make explicit what pre-existing rights the author (well OK... not just authors, but it's a shortcut word) has chosen to waive, in a way which is easily accessible and understandable. The 'machine readable' part is simply trying to make those waivers explicit to search engines in order to increase the accessibility of work under the CC license. It's more about making life easier for people who might want to use Anita's work (cartoon above, which of course you wouldn't have been able to use without the waiving of rights) than about making life easy for Anita. There are of course people who take issue with copyright law, but that's not a reason to generalise the complaint to a licensing system designed to address some of the problems that result from the law.

Some thoughts:

- CC is not about tying up creative work in legal jargon. It doesn't introduce arbitrary restrictions - it can only introduce conditions to the relaxing of rights which already exist. - You are more free to use a CC licensed work than if no such licence was used. - The author does not have to use a CC licence but they have every right to choose to. - You do not have to use CC licensed work but you are bound by copyright law. - The average author may not have the knowledge to structure their own licence from scratch and might well not want to waste their time doing so. Like it or not, 'lawyer readable licences' are what courts look at. - Even if authors did have the knowledge and inclination, the likely result would be a mess of different licences each with its own separate conditions. That would be less accessible to you than the CC standardised forms.

I'm very surprised to see a rant against CC here [on the Wiki of the University of Openess]. I'd actually been thinking of pointing out the related Science Commons project as something Uo might be interested in looking into.


Some responses:

> I'm very surprised to see a rant against CC here.

I would just like to point to the UoClaimer [] here. I'm sure many in the uo are very interested in pursuing Creative Commons and Science commons approaches.

I fully understand the rhetoric surrounding the Creative Commons; what it says it does on the tin. Having heard the arguments, I am not convinced. Like many liberal reformist movements, the 'good' intentions of the Creative Commons are easily hijacked by the people who are currently exploiting existing copyright law and the original 'good' intentions for that. As soon as the dinosaur copyright holders and collecting organisations wise up to the world of micro-payments and infinitesimally divisible rights and waivers, the bureaucracy and compensation situation of compound-licensed works will become far more Byzantine than it is already.

> It doesn't introduce arbitrary restrictions - it can only introduce conditions to the relaxing of rights which already exist.

That may be true of the Creative Commons, but other attempts to map very successful Free Software licenses onto non-technical fields have often decided to impose arbitrary and sometimes absurd restrictions. Actually, I think you may be wrong about this anyway. Surely the 'share-alike' insistence that derivative works be licensed under the same agreement can be seen as an arbitrary restriction.

> You are more free to use a CC licensed work than if no such license was used.

But less free than if the work is in the public domain. If you want to play, contribute to the public domain. If you want to reserve your rights, do. Also, If I buy the right to use your work using existing copyright law, I can use it for anything I want and adopt whatever license I like for my derivative work. In this sense, freedom as in 'libre' for my derivative work is more attainable under default copyright law than if you impose a perpetual Creative Commons license, it just costs me some money. If you use a Creative Commons license, I can't use your 'non-commercial-share-alike' component for my commercial venture at all, ever, even if I want to buy that right.

> Like it or not, 'lawyer readable licenses' are what courts look at.

Then concentrate efforts on cleaning out the legal language, reform the application of copyright law and the legal processes in general - which most people are currently too scared of to get involved with unless under duress.

Lazy orthodoxy and co-opted reform is what's under attack here, and you haven't answered the meat of the questions raised. The implicit proposal of this attack on the CC is:

- Concentrate efforts on reforming abuse of existing tested systems. - Concentrate on making existing processes and infrastructures accessible to everyone. - Concentrate on expanding the public domain through education and campaign against default copyright.

In my opinion the CC hype is just a distraction from these older, harder and more important battles.


> In my opinion the CC hype is just a distraction from these older, harder and more important battles.

I think you both make good points, but would the logic of the above argument mean that Stallman should not have bothered with the GPL. Also I thought the CC approach was in part a response to the IP gold rush rather than its cause.


> Also I thought the CC approach was in part a response to the IP gold rush rather than its cause.

I'm certainly not arguing that CC is the cause, but that it's motivations and parameters do not depart from the market logic that results in abuse of IP law.

> would the logic of the above argument mean that Stallman should not have bothered with the GPL.

There is a distinction to be made between the GPL and the CC. The GPL was just good engineering methodology for years before Eric Raymond and others evangelised Free Software into venture-capital friendly 'Open Source'. The CC and the GPL are nothing more than efficient methods of regulating property and labour in an information economy. There's nothing wrong with that, but using the word 'commons', and associating this engineering / labour methodology with a pre-enclosure J.S. Mill-esque political 'freedom' is misleading. The GPL may have been evangelised, but at least it is honest about what it is: 'a licence'. The whole 'commons' crowd - Bollier, Lessig etc. scare me because they do not wear their colours as clearly as the Free Software people, whose radical libertarian politics are very openly progressive one minute, and openly disturbing (see Eric S. Raymond's Gun Nut page) the next.


Eric S. Raymond is not among the Free Software-people. He's an Open Source guy.


CopyCan and CopyCant

The first point about unequal recourse to litigation makes the rest of this discussion a moot point. The legal mediation of intellectual property as a mass market service product is a horrifying prospect. In the case of the Creative Commons, the rhetoric simply ignores the material reality that most people can not afford and would probably never want to engage in litigation of any sort, certainly not against powerful, rich companies with armies of lawyers.

At the same time, given current distribution media and formats, copyright is practically unenforcible. Punitive enforcement of copyright law in a few highly publicised 'example' cases in which individuals are persecuted for downloading copyright material is deeply irresponsible on the part of the rights holders. Irresponsible because they must bear some responsibility for the ease with which their material is duplicated and distributed; which is an intentional strategy on their part.

Take the example of commercial software. It is in the interests of the software company for their software to be easily pirated. Many specialist software titles are hard to 'crack', but in many cases 'industry standard' applications are easily pirated. If, for example, it were impossible to pirate Adobe Photoshop, this software would not occupy the position of market leader for photo manipulation. Students, learners, tiny companies that currently find it easy to download and use pirate versions of these warez, grow up to found established companies and businesses that are no longer 'under the radar' of the copyright holders, and so buy licences. If it were impossible to do so, they would use something else, and buy licences for that product if and when it became necessary and profitable for them to do so. Knowing this, Adobe maintains a relatively relaxed copyright enforcement and security implementation. They do not seem to prosecute individuals, although presumably they have the right to do so.

The same logic applies on another level to music distribution. Music becomes popular in some markets because it is easily distributable. If the only way for Bulgarians to listen to Britney was for them to spend 10-12 Leva (5-6 Euros) on a CD, they would not listen to Britney. Piracy created this market and many others.

There is a harsh duplicity in the way large multinational IP owners use copyability as a publicity strategy on one hand, and then on the other bully the public into paying extortionate prices for dead media by singling out individuals and persecuting them as examples for taking the bait of copying the 'property' they have made intentionally copyable.

If, as is constantly threatened, Digital Rights Management becomes a reality and it is then impossible to buy hardware, software and media that allow the reproduction and distribution of copyrighted information, punitive enforcement of redundant copyright law on individuals will no longer be necessary, because it will simply be impossible for them to copy and redistribute this property.

Thinking again about how to articulate copyright and copyleft, there seems to be a need for a functional articulation of the reality of how this law is applied rather than the legalistic, utopian fantasy of an IP 'commons'. For this purpose I suggest the principles of 'CopyCan and CopyCant'. Simply, it is possible to copy 'CopyCan' material, and impossible to copy 'CopyCant'. No lawyers necessary. It become the responsibility of the producer to prevent the copying of their material. If this entails the implementation of DRM, fine. If it requires cyborgs to register a serial number keyed to an iris print and a cochlear implant for every piece of commercial music that they buy that prevents others from hearing the uniquely signed secure transmission of this audio unless they also buy it, fine. See how many people buy Britney's albums on these terms.

Also see: 'Goatherds in Pinstripes' by Gregor Claude, in Mute 23, June 2002 (in the Metamute 'archive' section)

Links (with thanks to Rob Myers for these)

Broader critiques of FreeSoftware

Project Oekonux mailing listArticle and discussion on FOSS, IP Laws, and Expanding Legal Choices

Others of interest

Adina Levin, Commons-based peer production is not communism, 2004Johan Söderberg, Reluctant revolutionaries – the false modesty of reformist critics of copyright, 2004


Lawrence Lessig, Free Culture, Penguin, 2004Greg London, Drafting the Gift Domain, 2004Joshua Gay (ed), Free Software, Free Society: Selected Essays of Richard M. Stallman, GNU Press , 2002

Mailing lists

Creative-friends - For a truly free and accessible BBC Creative ArchiveCc-bizcom - A discussion of hybrid open source and proprietary licensing modelsCc-licenses - Discussion on the Creative Commons license draftsCommons-law -- A discussion list on law, culture and technologyOther links and references

'Content Flatrate' and the Social Democracy of the Digital CommonsDigital Rights Management


Proud to be Flesh

Charters of Liberty in Black Face and White Face: Race, Slavery and the Commons

The Magna Carta is renowned as the 'Charter of Liberty' which inspired modern constitutional safeguards against the power of the State. But its smaller companion, the Charter of the Forest, enshrining the customary rights of the commoners to land and resources, has been overlooked. Cutting between the political struggles of the early 1970s and the 1720s, Peter Linebaugh shows how the struggle against enclosures in the woods of England is inextricably linked with the struggle against slavery in the Atlantic

I am thinking about revolution and constitution, where the former means the overthrow of capitalism and the latter means the ways we re-constitute our governance. Capitalism is the accumulation of commodities, and the production of surplus value by means of unpaid labour. Government concerns the rule of the Many by the Few, a task solved by divide et impere and named the Constitution.

The legal cliché is that the American is a written constitution, while the English is unwritten. Yet strictly speaking this is untrue inasmuch as both have stemmed from the Magna Carta of 1215, 790 years ago.

The Norman and Angevin kings afforested as much as a quarter of England, making game reserves, monopolising hydrocarbon energy resources, in zones where the only law was the king’s pleasure. They were crusaders, in world competition with Jews and Arabs for the commerce of the Mediterranean, and to launch such crusades they forced marriages among the barony and took children hostage, pulled teeth of Jewish money lenders, as well as squeezing the serfs and villeins dry. Civil war was the result but cease-fire was obtained with Magna Carta. It revealed the contradictions: between state and church, between monarchs and barons, between them and merchants, between all those three and the commoners who were dependent on forest resources.

Magna Carta has 63 chapters. It is accompanied by a smaller charter, the Charter of the Forest with seventeen chapters. They belong together. They are the two documents printed first in the book of English law for over five centuries. The most esteemed commentators, Edward Coke who influenced the 17th century English Revolution and William Blackstone who influenced the 18th century American Revolution, always treated the two charters as one; the English charters of liberty. We can follow their precedent.


Image > Anja Kirschner

A word about each. The Magna Carta used to be well known and what was most well known in it was chapter 39, because four principles of justice are sometimes derived from it, viz., habeas corpus, trial by jury, prohibition of torture, and due process of law. All of these have been curtailed by the USA Patriot Act. The Charter of the Forest assumes a notion of the ‘commons’ or a practice of subsistence commoning in the hydrocarbon energy resources of the time. This important presupposition is indicated by technical terms, viz., herbage, assarts, pannage, chiminage, and estovers. Herbage means grazing for cattle; assarts means clearing trees and grubbing stumps for gardening or growing grains; pannage means letting pigs into the woods for mast and nuts; chiminage means no tolls on the roads and paths; estovers means getting wood for fuel, for housing, and for tools and implements.

Now, to express these theoretically we might say that they refer to use-rights rather than to exchange value and thus they refer to particular, concrete labours rather than abstract labour with its universal equivalent in money. From this formulation we might then say they refer to a pre-capitalist mode of production, or we might say they refer to those classes of people whose goal in economic life is the consumption of uses rather than the accumulation of money. In short, they refer to the Many not the Few.

Considering the two charters, some of their provisions concern subsistence and some concern government. Some are negative; they prevent or prohibit arbitrary behavior by armed forces of the king, such as bailiffs, sheriffs, knights and so forth. Others are positive; they provide fuel, travel, food, milk, clothing for commoners. So, like two baskets of law, panniers on the back of a mule, they have trudged down the centuries, sometimes hidden from view or apparently stuck in a slough, at others times requiring a goad to get going again.

There is a third point, the mule can turn around and go the other way. Both charters were committed to disafforestation, or the removal of the king’s sole law and the return to conditions prior to the afforestation of the Norman Conquest. Energy resources were to be returned or restored and reparations made for harm done. The King took what did not belong to him; two centuries later he was made to return it. Thus, they reversed two hundred years of history making it, so to speak, go backwards. So much for the self-serving bourgeois doctrine of progress!

The important difference between English and American constitutional development is not that one is unwritten and the other is written. The difference is Africa. American constitutional and revolutionary history depended, first, on taking Indian lands, and, second, on maintenance and expansion of unwaged labour on the plantation where slaves produced surplus value. This is an 18th century problem, as references to the Declaration of Independence and the American Revolution make clear, and as the references of the U.S.A. constitution of 1787 as amended subsequently also makes clear.

In England the protracted struggle to maintain subsistence by access to the commons, or (to express this dynamically) by making commons, or commoning, had the unintended consequence of closing England through the repressive response of the Parliamentary Enclosure Acts passed between 1760 and 1830. What was the relationship between, on the one hand, the expropriation from Africans by the slave trade and the resistance to enclosures and, on the other hand, the formation of the working class? This was the problem some of us of ‘the Warwick School’ set ourselves in the early 1970s. We saw it, at first, as a problem of ‘crime’. Then we saw it as a problem of ‘custom’. We did not see it as a problem of ‘colour’, nor did we treat it as a problem of ‘capitalism’. Certainly, we failed to see it constitutionally.

To see it as crime was easy enough. George Rudé taught us that revolutionary crowds were criminalised by counter-revolutionaries and their historians. E.J. Hobsbawn taught us that the romanticised criminal, Robin Hood, appears in the transition into capitalism but not during the transition out of capitalism. Plus were not the great revolutionaries imprisoned, and did not the prisons – Siberia, Kilmainham, Devil’s Island, Soledad, Robbin’s Island – become seminaries of truth?

We were conscious of colour, because unpaid labour in America depended on it. In 1963 James Baldwin published The Fire Next Time, an essay whose wrath anticipated the municipal rebellions of the future but with a title alluding to the rainbow sign.1 In 1963 the English translation appeared of Franz Fanon’s The Wretched of the Earth which expressed the hurricane-like energy of the Third World in general and north Africa in particular. It warned against black capitalism. That was also the year of E.P. Thompson’s The Making of the English Working Class whose version of the working class saved it from Cold War dismissals and whose call to human agency seemed to revive the nerve of change, as it showed the autonomous self-activity of workers in the past in strike, riot, mutiny, and commotion. These American, African, and English voices were anti-capitalist and anti-imperialist.

Between 1963 and 1968 occurred the great municipal rebellions in American ghettoes under the slogan of ‘Black power’. How was a revolutionary class analysis to be made? Though we understood Black, we were not yet aware of white. We did not yet understand the DuBois principle of ‘the wages of whiteness’.2

In 1968 after ‘the summer of love’ I drove across the country from Columbia University anti-war sit-ins to the Berkeley commune and the bulldozing of People’s Park. We stopped in Bloomington, Indiana, in whose rare books library I found a scholarly key to the contradictions besetting the world. It was yet another book by ‘anonymous’ who in my naiveté I thought was the most frequently mentioned ‘author’ in the library card catalogue. ‘Anonymous’ seems to have understood the problem and here was the answer called The History of the Blacks of Waltham in Hampshire (1723). I had it photocopied and then protected by some cardboard covers I made and hinged with band-aid tape, which I took with me to England where ‘criminality’, Black history, and the English working class were going to join, I thought, in a grand revolutionary project. Edward Thompson soon had us formed into a research collective and I gave Edward my treasured copy of The History of the Blacks which surely would introduce to England the ‘black power’ discussions which were rocking the USA. Some years later he returned it, with his marginalia, after it had helped him get started with Whigs and Hunters (1975) which was published with Albion’s Fatal Tree (1975).

He wrote a brilliant book about law and the ruling class, but it was not the book I had dreamed of. It did not lay the axe to the root. I wanted a book about Africans and commoners. I would put forward the fact that the poachers defended commoning, not just by disguising themselves but by disguising themselves as Negroes, and they did so at Farnham, near the heart of what became the quintessence of England as Jane Austen so gently wrote about it, or Gilbert White, the ornithologist, so carefully observed it, or William Cobbett, the radical journalist, so persistently fulminated about it.

Round about Farnham timber was wanted for the construction of men-of-war and East Indiamen which stopped in Portsmouth for repairs, or were built there from scratch for the purpose of the globalisation of commodity trade characteristic of the time. Here’s how a flashpoint in the episodes of the Waltham Blacks began: ‘Mr. Wingfield who has a fine Parcel of growing Timber on his Estate near Farnham fell’d Part of it: The poor People were admitted (as is customary) to pick up the small Wood; but some abusing the Liberty given, carry’d off what was not allow’d, which that Gentleman resented; and, as an Example to others, made several pay for it. Upon which, the Blacks summon’d the Myrmidons, stripp’d the Bark off several of the standing Trees, and notch’d the Bodies of others, thereby to prevent their Growth; and left a Note on one of the maim’d Trees, to inform the Gentleman, that this was their first Visit; and that if he did not return the Money receiv’d for Damage, he must expect a second from … the Blacks.’ This is not exactly tree-hugging or Indian chipko, though it did have warrant among local antiquarians in the nineteenth century who searched for a charter of such commoning. The leader of the Blacks and ‘15 of his Sooty Tribe appear’d, some in Coats made of Deer-Skins, others with Fur Caps, &c. all well armed and mounted: There were likewise at least 300 People assembled to see the Black Chief and his Sham Negroes….’

Charles Withers, Surveyor-General of Woods, observed in 1729 ‘that the country people everywhere think they have a sort of right to the wood & timber in the forests, and whether the notion may have been delivered down to them by tradition, from the times these forests were declared to be such by the Crown, when there were great struggles and contests about them, he is not able to determine.’ The Waltham Blacks, they said, ‘had no other design but to do justice, and to see that the Rich did not insult or oppress the poor.’ They were assured that the chase was ‘originally design’d to feed Cattle, and not to fatten deer for the clergy, &c.’ The central common right was pasture, ‘common of herbage’ as the Forest Charter says. Keeping a cow was possible on two acres, and less in a forest or fen. Half the villagers of England were entitled to common grazing. As late as the 18th century ‘all or most householders in forest, fen, and some heathland parishes enjoyed the right to pasture cows or sheep.’3 So, the Waltham Blacks were class conscious. There was also an awareness at the time that the keeping of a cow, essential to the material constitution of the country, was backed up by charter. Timothy Nourse denounced commoners at the beginning of the century. They were ‘rough and savage in their Dispositions.’ They held ‘leveling Principles.’ They were ‘insolent and tumultuous’ and ‘refractory to Government.’4 In September 1723 Richard Norton, the Warden of the Forest of Bere, wished to ‘put an end to these arabs and banditti.’ The commoner belonged to a ‘sordid race.’ The commoner was compared to the Indian, to the savage, to the buccaneer, and to the Arab.

The ‘Blacks’ defended the customs of the commoners; the commoners were both criminalised and racialised in the discourse of the enclosers, the privatisers, and the big wigs. There was even the suggestion that attacking them was a sort of crusade. The Waltham Black Act of 1722 thus became, among other things, a means of drawing a colour line and criminalising common right.5

We can put forward as evidence what was neglected in Thompson, the fact of the African slave trade. Blacking, wrote the anonymous historian in that treasured pamphlet history, commenced ‘about the times of general confusion, when the late pernicious schemes of the South Sea Company boure all things down before them, and laid waste what the industry and good husbandry of families had gather’d together.’6 The South Sea Company was a slave trading company, formed a few years earlier, to take advantage of the asiento or licence to trade to Spanish America. On September 11, 1713, Royal African Company congratulated itself on obtaining ‘such advantageous terms, as never were before granted to the people who undertook the furnishing of negroes to the Spanish West Indies.’ The crisis of the commons began as a financial crisis which itself arose from slaving.

The South Sea Bubble was the wreck of a kind of capitalist commoning. Thirty years earlier, this new form of commoning had been produced through developments within English constitutional governance. During the 1690s sovereign legal authority (King-in-Parliament) united with the financial form of value resulting in the Bank of England, Lloyd’s Insurance Company, the Coinage Act, &c. Money and other financial instruments liquefied the clumsy, cumbersome form of wealth as private property which was presented as use values in warehouses, docks, ships, shops, etc., and moreover placed it directly under fiscal state command. The creation of monetary liquidity permitted the distribution of surplus value as investment in various commercial and industrial enterprises according to the needs of capital as a whole without regard to rates of exploitation in individual enterprises. Investment and speculation appeared insubstantial, disembodied, atmospheric or gaseous. The South Sea ‘bubble’ popped owing to cupidity which seemed infinite and to anonymous Atlantic obstacles, namely, resistance, recalcitrance, and revolt.

The decade between 1716 and 1726 was the golden age of piracy, Marcus Rediker informs us.7 The significance of piracy during these years was twofold – it was multiracial and it was against the slave trade. They blockaded ports, disrupted the sea lanes. The pirate ship ‘might be considered a multiracial maroon community.’ Hundreds were African. Sixty of Blackbeard’s crew of a hundred were black. Rediker quotes the Negro of Deptford who in 1721 led ‘a Mutiny that we had too many Officers, and that work was too hard, and what not.’ They also prevented the slave trade from growing. This was the complaint of Humphrey Morice, MP, Governor of the Bank of England, owner of a small fleet of slavers, who led the petitioning to Parliament and who suffered severe losses in 1719, the year that serious blacking commenced. A naval squadron was sent to west Africa. Four hundred and eighteen pirates were hanged. The conjuncture of apparently very distant forces, struggle for common rights and the Atlantic slave trade, in fact met in intimate proximity.

Daniel Defoe, the most prolific prose writer in the English language, was preoccupied with the issues of Atlantic labour power. Coincidently, his writing transpired during the privatisation of the printed word by means of Queen Anne’s Copyright Act. He precisely combined the intimate conjunction of opposites with a trans-Atlantic background. Robinson Crusoe, Mariner was published in 1719. The book dramatises the labour theory of value, glories in the intricacies of the division of labour, and puts the European foot (Crusoe) on the African neck (Friday). Alexander Selkirk, the actual person who was the prototype of Robinson Crusoe, died in February 1721 as a sailor in a naval squadron that was sent to west Africa to extirpate the piracy interrupting the slave trade. The Adventures and Misadventures of Moll Flanders, published in 1722 treats the issues of criminalisation of the commons and large scale cooperative labour. Upward social mobility was not accomplished by ’affirmative action’ but negative criminality, as Moll Flanders hooked up with highwaymen on the first step of the ladder of success and whose final rung she at last attained – a Virginia tobacco plantation – so she too could put the boot to the African enslaved.

These are the classic fictional disquisitions on subsistence, survival, and surplus in that era of off-shore and homeland plunder; they also present heroic prototypes of the ‘white’ worker. Indeed, these novels coincided almost to the year with ‘the invention of the white race,’ to give the title of Ted Allen’s compelling thesis.8

A buffer stratum was to be created by offering material advantages to white proletarians to the lasting detriment of black proletarians. When and how did the ‘wages of whiteness’ originate? The first date DuBois gives in the protracted process is 1723 when laws were passed in Virginia making Africans and Anglo-Africans slaves forever. The bonded people objected in 1723 to the Bishop of London and the King ‘and the rest of the Rullers.’ ‘Releese us out of this Cruell Bondegg’ they cried. In the same year Richard West, the Attorney General, objected to the same law, ‘I cannot see why one freeman should be used worse than another, merely upon account of his complexion….’ But the Governor of Virginia understood the necessity of ‘a perpetual Brand’ – skin colour, or the phenotype, which marked the person as surely as the burnt flesh caused by the golden brands used by the South Sea Company. In this way, Ted Allen tells us, a ‘monstrous social mutation’ occurred, namely, that stratum within the American class structure which derives its hopes, security, and welfare from white skin privilege. It has been essential to the constitution of American class relations ever since.

This was not known to Thompson. The experience within England (though not Ireland) was different, where the policing of the wage relationship, or the exploitation of the Many by the Few, did not depend upon the colour line, and where therefore it was unnecessary to constitute that structure of white supremacy. Thompson wrote the famous ‘rule of law’ coda to Whigs and Hunters. ‘As the last imperial illusions of the twentieth century fade, so preoccupation with the history and culture of a small island off the coast of Europe becomes open to the charge of narcissism. The culture of constitutionalism which flowered here, under favoured conditions, is an episode too exceptional to carry any universal significance.’ Yet, even smaller than England was the island where Robinson Crusoe met Friday and that story spread world-wide.  

The colonists of the north American mainland, even at the time of Robinson Crusoe (1719), the Waltham Black Act (1722), and the South Sea Bubble (1722), had begun to graft some of that English constitutionalism to their own purposes. For example, The New-England Courant in its summer issue of 1722 sought to be rectify the stupidity of the colonists by quoting chapter 39 of Magna Carta and commented, ‘No Freeman shall be taken, &c. These words deserve to be written in letters of gold, and I have often wondred that they are not inscribed in Capitals in all our Courts of Judicature, Town-halls, and most publick edifices; they being essential to our English Freedom and Liberties…’ ‘No man ought to be put from his Livelyhood without answer’ rings hollow to the unemployed, or to the Indians who were proclaimed rebels in the same newspaper for attacking fifteen commercial vessels intruding on their fishing grounds and whose women and children were taken in captivity to Dunstable. ‘No man can be exiled or banished out of his native country’ is hypocrisy to the men and women and children from the west coast of Africa enslaved in America. The New England Courant’s sole advertisement reads ‘A likely Negro Woman to be sold by Mr. Thomas Selby at the Crown Coffee-House, the lower end of Kingstreet.’

Thompson, however, did not accept a ‘South Sea’ or Atlantic perspective, much less a planetary one in his references to constitutionalism. He reversed himself, moving from a mood of postcolonial narcissism to one of praise for the English ruling class as a whole: ‘… the inhibitions upon power imposed by laws seem to me a legacy as substantial as any handed down from the struggles of the seventeenth century to the eighteenth, and a true and important cultural achievement of the agrarian and mercantile bourgeoisie, and of their supporting yeomen and artisans.’ And when Thompson writes of the culture of constitutionalism, why does he exclude the charters of liberty?

Dorothy Thompson, many years later, attributed this coda to heated arguments that she had with her husband and co-worker, Edward, arguing that ‘he was leaning too far in the direction taken by some of the contributors to Albion’s Fatal Tree in dismissing the law simply as an instrument of class power.’9 The context of the discussions about these books took place in 1970 and 1971; when for instance Howard Zinn in November 1970 said ‘The Problem is Civil Disobedience’, and he ran down the law, how the bill of rights is publicised but not enforced, how the property laws are enforced but not publicised. He showed how decorum and propriety fool us and cause us to revere the law. He reminded us that often we have to go outside the legal framework – the Civil War, the Union drives, the American Revolution. He said ‘people in all countries need the spirit of disobedience to the state….’ The American and the English experiences were different. The Attica revolt was in September 1971, and the trial of the Mangrove Nine was finished in 1971. Internment without trial was introduced in 1971, and ‘Bloody Sunday’ was in January 1972. These events of state terrorism were not yet answered by similar violence of those taking an anti-imperialist stand. Furthermore, they still seemed part of an ancient constitution in which ‘race’ played trumps.

Our books were not published until 1975. During the interval the world changed direction. The PLO assassinated Israeli athletes at the Munich Olympics. The IRA brought the war to England. The Guildford pub bombing of October 1974 left five dead, a month later the Birmingham pub bombing killed twenty-one. While the political climate became more violent, the intellectual climate became more academic, more legalistic, more obscure. Critical Legal Studies (formed in 1977) stuck to the high theory of Frankfurt School and French post-structuralism, obtusely reluctant to engage English social history, or to raise the constitutional issues of race or the commons.

There is a vast amount of English social history since 1975 (and before) recording the importance of customary rights to common forest resources. Moreover, that story is now clearly understood to have happened all over the world. J.M. Neeson produced a great book about the commons from earlier discussions concerning custom. Called Commoners, it showed that subsistence use-rights remained a material basis of many English agrarian workers. Meanwhile, others of us adduced the evidence that the wage relation arose from the process of criminalisation and the process of criminalisation arose from custom. The irrationality of the wage concealed the unpaid labour. But could these aperçus attain constitutional importance or were they destined to dismissal as un-theorised ditty?

The law locks up the man or woman Who steals the goose from off the common But lets the greater villain loose Who steals the common from the goose

The violence and the terror, ‘the military option’ as the Italian Red Brigades put it, made it harder to see the Charters, or the commons, as anything other than a wild goose chase. Looking back now we can see that the issue was not the rule of law against terrorism: the issue was the preservation of commoning against new enclosures.

We could use some theory of the kind that transformed Magna Carta for the Levellers, of the kind that transformed Magna Carta for the abolitionists. In 1774 the former African-American slave, Olaudah Equiano, put on white face in London in order to obtain a warrant of habeas corpus. This is among the first actions by which Magna Carta was appropriated for the trans-Atlantic movement to abolish slavery. In the same year Granville Sharp wrote ‘The wisdom of ages has made [Magna Carta] venerable, and stamped it with an authority equal to the Constitution itself, of which it is, in reality, a most essential and fundamental part; so that any attempt to repeal it would be treason to the State! This glorious Charter must, therefore, ever continue unrepealed: and even the articles which seem at present useless, must ever remain in force.’10 Granville Sharpe used the charters against slavery, racial and otherwise, but, despite an obsession with the gothic frankpledge, he did not take his stand with the commons, unlike Thomas Spence or Gracchus Babeuf. Similarly with Frederick Douglass who said in 1854, ‘Let the engine of the Magna Carta beat against the Jericho walls of Slavery, and no seven days blowing of ram’s horns would be necessary,’ a reference to the jubilee which, while emancipating slaves, also restored the commons.


Film still > from  Polly II, Anja Kirschner Photograph: Alessandra Chila

Edward Thompson failed to mention Magna Carta and more strategically he omitted the Charter of the Forest. There was an opportunity to link the constitution to the commons at that point in time, Walpole 1720-1723, when some English and African commoners could be found together on the seven seas and in the wild wood. The moment passed: privatisation and slavery advanced together. We hear Blackstone crow as he defined private property as ‘that sole and despotic common which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.’ (He admitted in his Commentaries that there are elements such as light, air, and water which ‘must still unavoidably remain in common.’)

Today, the commons comes back to us from the South! Subcommandante Marcos provided the voice of the Zapatistas and the indigenous people of Chiapas calling for the return of Article 27 and the ejidos, or common land, while reminding us of the Magna Carta. As the Many demand water, energy, and wherewithal against the surplus value hogged by the Few, we must reprise those moments when the act of constitution showed not racist divide et impere but that old, old friend of all, the commons. This enterprise calls for our contemporary appropriations of both of the Charters of Liberty.


1 The title alludes to a slave song:  ‘God gave Noah the rainbow sign, No more water, the fire next time’. Editor’s note.

2 David Roediger, The Wages of Whiteness: Race and the Making of the American Working Class (Verso: New York, 1991). In the preparation of this essay I thank David Roediger and his colleagues at the University of Illinois, Champaign-Urbana

3 J.M. Neeson, Commoners: Common Right, Enclosure, and Social Change in England, 1700-1820 (Cambridge, 1993), p. 317

4 Timothy Nourse, Campania Foelix, Or a Discourse of the Benefits and Improvements of Husbandry (1700), pp. 15-16

5 ‘The Black Act was instituted in 1723... in response to the Waltham deer poachers. It made it a felony (that is, a hanging offence) to appear armed in a park or warren, or to hunt or steal deer, with the face blackened or disguised...’,

6 The History of the Blacks of Waltham in Hampshire, Anonymous, (1723)

7 Marcus Rediker, Villains of All Nations: Atlantic Pirates in the Golden Age (Beacon Press: Boston, 2004)

8 Ted Allen, The Invention of the White Race, volume two, The Origin of Racial Oppression in Anglo-America (Verso, 1997)

9 Daniel H. Cole, ‘“An Unqualified Human Good”: E.P. Thompson and the Rule of Law’

10 A Declaration of the People’s Natural Right to a Share in the Legislature (1774), pp. 202-3

Peter Linebaugh <> teaches history at the University of Toledo in Ohio where he is also writing a book on the Charters of Liberty

Proud to be Flesh

Copy That Floppy!

The Pirate Bay, a tracker website based in Sweden, has become the most popular BitTorrent site in the world and now receives more daily hits than CNN. The Pirat Byran (Pirate Association) is its sister organisation, and promotes information piracy and its culture through discussions, media advocacy and legal advice. Mute talked to Palle Torsson of Pirat Byran about filesharing culture in Sweden and the 'grey commons'


Image > Pirates and filesharers demonstrating in Stockholm on Sunday May 1st, 2005, Piratbyran

Mute: The Pirate Bay is one of the most popular BitTorrent trackers, could you tell us about how The Pirate Bay and Pirat Byran came about?

PT: Pirat Byran was born in 2003 from an integrated internet radio broadcast community and IRC channel populated by the Swedish hacker community and Demo scene. PB was initiated to support the free copying of culture and launched the BitTorrent tracker and website: The Pirate Bay. When TPB expanded to become the biggest BitTorrent tracker in the world it was natural for them to split up into two different entities. PB has evolved into a community and an information site in Swedish with news, forums, articles, resources and a shop and has to date over 50,000 members. PB organises events, appears in debates, writes and answers questions about IP and filesharing. TPB had recently gone through a major internationalisation and can now be browsed in many languages, from Mandarin to Icelandic.

Mute: I read some time ago a report on Interactivist about filesharing protests in Sweden. I understand you spoke at the demo?

PT: Yes, but the speech I made took most of my energy. It was the second year when internet lovers, filesharers and pirates gathered in Stockholm to express their fight for internet freedom. There was music and three speakers talking about the transgression of IP law and creativity. A hand to hand copyswap was extended to a coffin where you could place and share CDs. A big crowd of something like 800 people assembled with banners declaring things like: ‘No Software Patents’, ‘Sharing is Caring’ and ‘All Your Base [Stations] Belong to Us.’ This aggressively humorous attitude is something that characterises the movement in Sweden. One beautiful example is the letter written by TPB in response to legal threats and the request by big companies like Microsoft, DreamWorks and Warner Bros, to remove copyrighted material:

Last year the transgression of IP law spurred a copy riot in Sweden; people from right to left have woken up and spoken out on the subject. This escalated further when Sweden’s anti-piracy lobby organisation, Antipiratbyran (APB), raided Swedish ISPs claming they hosted unlicensed material. The raid was conducted in an unlawful manner and it was discovered APB had paid an infiltrator for several months to upload copyright-protected material and place hardware at the ISP.

This spawned a public outcry and the lawyer and spokesperson for APB, Henrik Ponten, received hate-SMS, including death threats, from a lot of angry kids. The homepage of APB was hacked by a group that called themselves Angry Young Hackers and mails between people from APB were published showing that APB were also infiltrated. In response PB has pressed charges against APB for their different unlawful actions. And APB was told by Swedish authorities to withdraw the most aggressive of these threats to protect their own integrity.

The demonstration was mostly a great celebration with a lot of different people sharing and also making connections. The slogans at the demonstration were: ‘Copy me – we will continue to copy everything’, ‘Don’t touch our internet’ and ‘Welfare begins at 100 Mbit’. The counter-allegations against the anti-pirate organisation APB for the action and the raid at the Swedish ISP Bahnhof was ready at that time and was handed to the police.

Mute: As I understand it Sweden has yet to sign European agreements on copyright law. Does this make it a ‘zone of exception’ as far as the increasingly aggressive policing of IP is concerned?

PT: No, but for a long time it was legal to download for personal use. Now the EU [Copyright] Directive is implemented and in force in Sweden (as of 1 July), even though there have not yet been any cases resulting from the new law. This ‘zone of exception’ comes rather from the fact that people accept and live with filesharing, the police don’t have the will, priorities or resources to criminalise kids. TPB and PB is a concrete, factual and living example of this, among other things. This zone of exception is important and natural for this generation and is not something that will change any time soon.

Mute: What is the bigger picture behind these protests? Was this the first public act of disobedience in opposition to the new laws or are there events that have prefigured this one?

PT: PB has a broad political base, from high-tech autonomists to free libertarians. A group based in Malmo called The Street Action looks upon filesharing as digital class struggle and organises public copyswaps inside shopping malls in order to desecrate the commodity. And there are several other interesting projects based on disobedience in Sweden, of which my favourites are and is a site for free subway riding and runs a fund to which you can subscribe and get your money back in case you get caught and fined. is a site for shoplifting culture.

Mute: You spoke of finding the ‘power to strike again’, at what forms of power are you directing these attacks and through what means?

PT: I always appropriate, borrow or steal others people’s work to make something new. I live in, distribute, and take from the circulation of information. The configurations of the medial structures in which this information exists is the pipeline in which I work. The motivation for my work is to try to intervene in this structure and to create an alternative work space, basically to make my becoming a place were I am free to appropriate again.

There is an endless amount of targets to strike that oppose our way of living, but right now it feels important to build the alternative playground of sharing and gift culture. The confrontation comes naturally in the process of exploring these grounds. The primary means for this is collaboration and exchange of knowledge. I think hacking that involves hardware modification will become more important because the industry understands they have lost the information battle and are moving towards the protection of hardware. This means that it will be important to realise real infrastructures of communication like Wi-Fi and meshed networks and self-made entities for IP broadcast.


Image > Pirates and filesharers demonstrating in Stockholm on Sunday May 1st, 2005, Piratbyran

Mute: What then are the implications of a ‘post-scarcity’ system in which the cultural products of immaterial labour are available for free exchange, whilst the cost of living and reproducing oneself rises?

PT: The flow of money and information are immanent to each other. When information is transformed into commodities they become potential allocators of the money you could buy food with. If you are a student you’d rather spend your money on beer and as a parent you spend your money on food rather than paying for CDs or books. If you use alternative circulations like the library, sharing or downloads, your economy becomes richer.

The hacker, the artist or the housewife for that matter, do not live independent from the economic structure of society – on the contrary they are parasites upon existing structures in place within welfare systems, companies and universities. Like all people they are attached to a grey zone where they produce an important surplus value for society that we find more important than most are willing to openly admit. [For a critical discussion of this notion, see Steve Wright’s ‘Reality Check: are we living in an immaterial world?’ in this issue of Mute, p.34-45]

Mute: Trackers (and other P2P technologies) are playing a powerful role in the ‘economy of attention’. They are becoming important producers of opinion, hype, and desire around new releases from multinationals, as well as facilitating their distribution. Are there ways that Pirate Byran can radicalise this process?

PT: Yes, by bringing in new groups to filesharing. For instance, as in the project ‘small pirates’ run by PB where the focus is on filesharing for parents and kids, or bringing new content to the trackers as in the project run by the Danish Pirat Gruppen. I think there is a radical process inherent in the movement, so what is needed is to deepen the understanding of the redistribution of culture. One recent attempt was the book produced by PB about filesharing culture, Copy Me. A lot of projects have evolved from the forums at PB. I think it is important to always branch out into different projects so that the process becomes independent from singularities of any kind.

There are always different levels of involvement in a community, some rising and some falling. I think filesharing and open source has a radicalising process attached to it right now because it points to the structural division of information in society. I would say that these links you talk about already exist, the important thing is to make them visible. The best way to do so is to get important files and projects online for filesharing. One of the more recent examples initiated by the sister organisation of the PB in Denmark, Pirat Gruppen, is a project called Students are encouraged to digitise and share the expensive books on their reading lists, and in this way use filesharing to create a digital library resource for fellow students, circumventing the costs and control of large publishers. So far, the campaign has resulted in books being shared on The Pirate Bay, while the publishing companies have joined the entertainment industry in their desperate hunt for filesharers. The Pirate Bay can be used by anyone that wants to share files or come up with new models for distribution.   Mute: The asymmetry of access to ownership of communications media is a major factor provoking their seizure and re-distribution. Historically, piracy has arisen at times of enormous economic hegemony (empire), and though formed in opposition to dominant culture frequently plays an economic and geopolitical role in reproducing it. How can the new forms of data piracy support and nourish alternatives and even opposition to dominant economic imperatives?

PT: Overcoming lack of access is not a very important notion in our approach. Not even opposition to dominant forms of culture. Internet piracy is all about desiring-production, and its deepest effects in the long run may well not have so much to do with access, or may go far beyond that notion – just as Walter Benjamin talked about art as the production of desires that cannot yet be satisfied, but will inevitably reach far beyond goals originally impossible to imagine.

Maybe what is most important now is to bypass the urge for solutions, for victory in battles or for compromise and stability. For example, talking about how to ‘compensate’ copyright holders obscures the truth about the social production of culture, replacing it with the myth of copyright as some kind of ‘wage’ for artists. On the contrary, trying to keep the ‘grey zone’ as open and wide as possible, will almost automatically produce better conditions for going beyond prevalent economic imperatives. If nothing else, it will do this by simply curing some of the neurotic sickness of copying-control. But making general statements about different political implications and alternative economic models when talking about piracy and free copying would almost be like accepting copyright’s claim to universality.

I think the shift to alternative ways of organising, in more of a rhizomatic manner, is driven by desires and the possibilities of connection. The drive to think, invent and discover alternative processes of production is the affirmative power of life as an experiment in complexity.


Palle Torsson <> is a Stockholm based artist, researcher and organiser. He has been a pioneer working with internet, game culture, and intellectual property. He runs the site and works with Pirat Byran, an organisation that fights for the freedom to copy and share media

Proud to be Flesh

FLOSS Redux: Notes on African Software Politics

The info-technological development of Africa is providing a critical laboratory for testing the utilitarian and egalitarian claims of the FLOSS community. The question of whether to adopt a free or proprietary route quickly expands beyond the immediate consideration of set up costs. Soenke Zehle considers how FLOSS fares in the competition to be the fittest 'tropical' technology, assesses different visions of continent-wide development, and examines FLOSS's own ambiguous economics

With a host of corporations, foundations, and organisations active in the fields of advocacy and assistance, free and open source software (FLOSS) has become a dynamic area of info-developmental cooperation. In the eminently pragmatic approach adopted by many of these efforts, the intense controversy over free vs. open source software and the extent to which advocacy should stress freedom over commercial applicability somehow seems a thing of the past. At the same time, the focus on FLOSS as an economic strategy of autonomous development within a global network capitalism rather than a post-capitalist practice of collaborative creation recalls some of the general ambivalences at the heart of software-political struggles.1


In many African countries where computer users are not necessarily owners, important choices are often made by those in charge of establishing public ICT infrastructures. While many companies and organisations have chosen to adopt FLOSS on their own, the status of governments as the largest procurers of Information and Communication Technology (ICT) means that government action is bound to stimulate industry in various ways, including the provision of FLOSS training and support. The recently founded Free Software and Open Source Foundation for Africa (FOSSFA), currently headquartered in Nairobi, Kenya, has therefore identified national ICT policy and procurement procedures as major advocacy targets.2 For Bildad Kagai, co-founder and one of its secretaries, the licensing, localisation, and local skill building advantages of FLOSS, coupled with ‘leapfrogging’ technologies like wireless that help skip an entire generation of expensive infrastructural investments, offer an alternative to the technological dependency and resource drain associated with an exclusive reliance on mainstream proprietary software.

Given the many problems that beset the ICT sector in Africa, FLOSS advocacy is inevitably tied to political reforms in contracting, public services, and competition policy, as well as the creation of FLOSS related employment and business opportunities. Taking advantage of the organisational dynamic of WSIS and working closely with civil society organisations, corporations, and international donors, FOSSFA has created an effective advocacy coalition: Kenya’s ICT policy now gives preference to open source (and open standards) over proprietary solutions, and FOSSFA also convinced the Committee on Development Information of the Economic Commission for Africa (CODI) to adopt a policy that prioritises FLOSS.

This is no small feat, given that many African states have yet to articulate any ICT policy whatsoever, and FOSSFA is also educating policy makers across the continent about FLOSS.3 The 2004 Idlelo meeting in Capetown, co-organised by FOSSFA and the African Virtual Open Initiatives and Resources Project (AVOIR) at Western Cape University, was the ‘First African Conference on the Digital Commons’.4 Bringing some 200 FLOSS activists and developers from across the continent together with international researchers, Idlelo emphasised the need to shift from the mere adoption of FLOSS to the local development of FLOSS applications, the use of FLOSS in education, and the development of non-proprietary open content alternatives. Hoping to be able to recruit government representatives from all 53 African states, Idlelo 2 has already been scheduled for 2006.5

South Africa Goes Open Source

The breakdown of Idlelo participants by country reveals the uneven geography of IT development in Africa: by far the largest contingent came from South Africa, followed by Nigeria and Kenya.6 South Africa’s influence in the African FLOSS movement is related to its dominance of the African IT sector at large. But there are other reasons, one of which is the impact of projects sponsored by Mark Shuttleworth.7 Shuttleworth, a South African celebrity entrepreneur known for his space travel – Shuttleworth was the first ‘afronaut’ – as well as his philanthropic ambition, has overseen the development of Ubuntu (an already-popular Debian-and-GNOME based linux distribution updated in regular release cycles) and his Shuttleworth Foundation has co-launched a nation wide ‘Go Open Source’ campaign.8

Supported by the Meraka Intitute of the South African Council for Scientific and Industrial Research (CSIR) as well as HP and Canonical, the campaign has included the production of the first ever television series on open source – broadcast on public television and available for download – and the installation of ‘Freedom Toasters’, stand alone CD/DVD burners loaded with the latest FLOSS operating systems and applications, across South Africa.9 In addition to working on an ‘edubuntu’ classroom version of its linux distribution, the Shuttleworth Foundation also works with South African schools to set up FLOSS-based thin client networks through its ‘tuXlabs’ initiative.10 And following the 2005 ‘Go Open Source Task Team’ conference, South Africa’s national policy on free/open source software and open content is now being turned into an ambitious action plan.11

But is South Africa ‘really’ Africa? FOSSFA’s Kagai notes that ICT developments in South Africa are not representative of Africa at large, and some see in the ideas of an ‘African Renaissance’ less a new Pan-Africanism than a mere culturalisation of South Africa’s own economic and geopolitical ambition.12 Yet it would be a mistake to associate less well off areas of the continent with a lack of interest in digital and network technologies – a point made years ago by none other than John Perry Barlow (ex-Grateful Dead and Electronic Frontier co-founder).13 Barlow had concluded from his own experience of country life that Africans might have preserved a pre-industrial sense of connectedness and would want to bypass the crippling effects of an individualist industrialism to embrace the digital technologies of the network society. Even after the dotcom crash, his occasionally, albeit ironically, exoticist travelogue is still worth a read, in part because much of his ‘let’s wire Africa’ enthusiasm was shared by the initial wave of international ICT task forces that were to turn the new economy experience into a fully fledged paradigm of info-development. And it encouraged Russell Southwood, a former UK management consultant, to start Balancing Act Africa, already one of the most important information services on ICT related developments across Africa, including the failures and successes of FLOSS advocacy.14

Perhaps somewhat surprisingly, FLOSS has not been an easy sell. One reason, suggests Ethan Zukerman, might be the overemphasis on free beer at the expense of free speech; a reference to Richard Stallmann’s famous definition of free software.15 Zukerman, a co-founder of GeekCorps – ‘an international non-profit organisation that transfers tech skills from geeks in developed nations to geeks in emerging nations’ – and initiator of ‘BlogAfrica’, believes that many African users continue to associate ‘inexpensive’ with ‘inferior’, a legacy of technology transfer and appropriate technology projects that sometimes amounted to little more than the dumping of obsolete technology.16 And in areas where non-licensed copies of proprietary software are widely available as well as a great deal of corresponding ‘street’ expertise, comparatively expensive manuals and a lack of bandwidth for accessing online support can easily increase the total cost of ownership of non-proprietary alternatives generally assumed to be ‘free’. FLOSS advocates should stress the expandability, transparency and resulting high performance of their software instead.

While a growing number of studies make an empirically based case for FLOSS in general, less is known about the experiences of FLOSS adoption across Africa.17 One such report has been published by, an international NGO with offices in South Africa and the US.18 According to, the availability of the source code is an advantage actually rarely exploited at the computer lab level, whereas the cost of software licenses – the ‘free beer’ argument – remains a key concern, especially evident when these costs are expressed in terms of GDP share. Among the factors that lower software costs, piracy is the most important, followed by donations and so called thin-client configurations that bring back to life hardware generally considered obsolete. FLOSS, concludes the report, has become a mainstream alternative. Yet because of the level of expertise required to establish and maintain a FLOSS based computer lab, it tends to work better in large projects that have the resources to address the practical problems of migration, training, and support, in contrast to individual labs that can simply take advantage of proprietary solutions that are already in place.

Info-Political Visions

Beyond the issue of appropriate means, how do the local politics of software relate to competing visions of what ‘info-development’ is and should be about? In the larger info-political vision that frames local decisions over software and standards, questions of autonomy are central, frequently articulated in response to the hegemonic presence of corporate software and IT giants. FLOSS advocates have criticised the most recent wave of international public private partnerships in this area, for example, because they involve only the usual transnational suspects. Microsoft, HP, and Cisco are all well represented in the activities of major development agencies, advertising themselves as ‘partners in development’ to promote ICTs as the vehicles for ‘good governance’ and ‘effective service delivery’, but also to stake out their own commercial claims, crowd out grassroots or public sector alternatives, and subvert South-South cooperation.

Take SchoolNet Namibia.19 Having to work with substantially fewer resources than the Shuttleworth Foundation, SchoolNet has nevertheless set up FLOSS-based thin client networks in over a hundred schools, launched an ISP to offer subsidised internet service, and is exploring the set up of wireless access in rural areas. Once they had found that students were a lot more likely to embrace FLOSS than their teachers, and standard advocacy tools were not doing much to change that, SchoolNet launched Hai Ti (‘Listen Up!’), a comic strip that features real life FLOSS users.20 Its contractual agreement with schools specifies that the teams who manage the local computer lab include students as well as teachers. Yet occasionally, SchoolNet finds that their FLOSS-LANs remain unmaintained while students use equipment donated by Microsoft and administered with support from MS certified engineers. Executive director Joris Komen is convinced that Microsoft has targeted Namibian schools specifically because SchoolNet Namibia has become an outspoken critic of the company and its philosophy.21

Commenting on recent agreements between Microsoft and the New Partnership for African Development (NEPAD), the United Nations Development Programme (UNDP), and the United Nations High Commissioner for Refugees (UNHCR), Bildad Kaigai of FOSSFA agrees that such deals work to confine the software choices these agencies can make and effectively transfer wealth away from an emergent local software industry. Kagai calls on African leaders to emulate the successful development strategies of Asian countries instead.22

Other ICT analysts note, however, that African countries will have to do so under dramatically different circumstances. Yash Tandon of SEATINI stresses that ‘most of the so-called “technology transfers” ... are essentially excuses for transnational corporations (TNCs) to take over local companies, or to carve out a share of the domestic markets.’23 Rather than ‘stripping naked’ to attract foreign direct investment (FDI) from the North, Tandon also makes the case for the ‘creation of a home based Domestic Scientific and Technology Capacity (DSTC), including capacity to undertake relevant research and development, the actual purchase (as opposed to transfer) of appropriate technology from the open market, and a transfer of technology, preferably between South-South, only under certain conditions.’ But Tandon also notes that options exploited by the ‘Asian Tigers’ are no longer available to Africa: ‘Countries such as Korea and Taiwan, as all other now advanced economies in history, were able to do it because they disembedded the technology from its capital base (by, for example, copying intellectual property, and through reverse engineering), and by creating a ‘national’ base for capital. Some countries were able to do this during the cold war years when the West needed them to fight against the Communist threat coming from China and Vietnam. ... Since the end of the cold war, this option is no longer available. ... Now, with intellectual property rights embedded in the World Trade Organisation (WTO) under the Trade Related Aspects of Intellectual Property Rights (TRIPS), scientific knowledge has become monopolised in the hands of a few thousand multinational corporations that use this knowledge to control the economies of the third world.’ For Tandon, Africa has only so many options: ‘It is in this context that Africa must develop its own DSTC, including a policy on relevant research and development. The R&D policy must be based on the production conditions in the region, the need first to produce for the domestic/regional market (only secondarily for the export market), and Africa’s location within the global value chain.’

It seems that third worldist strategies sustained by a generalised critique of neocolonialism have been replaced by the exhausting creation of advocacy networks that hold local governments just as accountable as transnational corporations.24 Yet while visions of Africa’s future have sobered significantly, the emergent dynamic of South-South cooperation still echoes a tricontinentalist spirit. Brazil’s official commitment to what its minister of culture, Gilberto Gil, has refererred to as a ‘tropicalisation’ of open source has been a major push for FLOSS advocacy in Africa. One such example of a South-South technology transfer was Brazil’s support for the adoption and implementation of open source software for the management of Top Level Domain (TLD) registries in a number of African countries, a process that will eventually automate TLD registries.25

An increasing ‘post-third worldist’ cooperation is visible in other international info-political fora as well. One example is the campaign for a ‘WIPO Development Agenda’ and a Treaty for Access to Knowledge, supported by a broad coalition of southern governments as well as grassroots organisations.26 The World Intellectual Property Organisation is a UN agency whose current mandate is ‘the maintenance and further development of the respect for intellectual property throughout the world.’ In the eyes of its critics, this mandate limits WIPO to the role of an enforcer of Euro-American positions on intellectual property, supporting the WTO’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) as well as at least condoning the aggressive ‘TRIPS-Plus’ bilateralism both the US and the EU have engaged in to effectively bypass the ongoing review process of key TRIPS provisions.27 The access-to-knowledge campaign puts the question of FLOSS and the struggle over open standards in a much broader context. WIPO defines creativity in relation to the prospect of proprietisation, as culture is defined as the creation of private property. The FLOSS controversy, on the other hand, is not just about reducing the cost of running a computer lab, but over the implications of its approach to ‘commons-based peer production’ (Yochai Benkler): i.e. processes of collaborative creation and an information and knowledge commons actively enlarged in opposition to the ‘second enclosure’ (James Boyle) associated with an ever expanding IPR regime.28 Take the role of FLOSS developers. Rishab Ghosh, FLOSS Program Leader at the Maastricht Economic Research Institute on Innovation and Technology (MERIT), stresses that licensing costs do matter, especially when GDP is taken into account.29 But another key emphasis in his studies on FLOSS in developing countries is on the skills-building in FLOSS networks. In addition to standard developer skills, open source communities address, almost by default, questions of copyright law and licensing, and introduce users to new forms of collaborative creation. Ghosh calls these ‘informal apprenticeships’ whose social cost is, of course, borne by individual users, but it is done so voluntarily, and he even considers the free sharing of developer expertise (often based on expensive degrees) a form of technology transfer. Most definitely exploited by employers who often encourage their employees to participate in FLOSS fora on the job, this voluntarist dynamic is also the basis of networks of ‘roving technology consultants’ like GeekCorps or E-Riders, as well as the collaborative practices of the FLOSS community at large.30

Info-Political Pragmatism

Ghosh has been a major global FLOSS advocate, and his projects specifically address the use of FLOSS outside Europe. Yet some of his economic arguments are based on the assumption that proprietary alternatives are not locally produced. What Ghosh describes as the benefits of ‘deep access’ offered by locally developed FLOSS applications – customisation, quick bug fixing, as well as the re-use of code in other applications – is exactly how Herman Chinery-Hesse, CEO of Ghana’s successful Soft Tribe, describes his own approach.31 All of Soft’s software is based on ‘tropically relevant’ code, Chinery-Hesse’s reference to the full spectrum of constraints he associates with local computer use: frequent savings to disk help deal with power failures and work offline lowers costs for online access. In the case of Soft’s document management software for the Ghana Human Rights Commission, storage on remote servers addresses possible interruptions caused by a change in government. And unlike Ubuntu, Soft’s applications are optimised for the low-end hardware that dominates Ghana’s offices and cybercafés.

Soft trains the majority of Ghana’s programmers, often left to their own devices in poorly equipped computer science departments. Yet Chinery-Hesse thinks that FLOSS would impede the development of a local software industry, as developers would, he worries, be reduced to installers of pre-existing applications. His main concern, however, seems to be possible tampering with the code both by users and competitors – Chinery-Hesse fears internal mismanagement and has no interest in interoperability that could threaten Soft’s pole position in the local software market. Soft rarely releases beta versions, software does not have an autoinstall function, and bug fixes are not generally released. Evidence of Chinery-Hesse’s entrepreurial pragmatism, he has also entered into a cooperation agreement with Microsoft, hoping to take advantage of its global distribution channels to bring an add on from Ghana to desktops around the world.

For Guido Sohne, a former Soft employee and vocal FLOSS advocate, Soft’s deal with Microsoft is a form of technology transfer rather than a simple sell-out, prompted by the departure of some of its key developers without whom their previous portfolio of applications could no longer be maintained.32 Sohne left in part because Soft did not want to explore FLOSS-based alternatives to address this development impasse. Microsoft is there to stay (the new Kofi Annan International Peacekeeping Centre in Ghana also entered into a deal with Microsoft), but it looks like Soft’s emergent competitors are already relying on FLOSS. So while Ghana’s developer community as a whole has not yet embraced FLOSS, this is likely to change.

In the current ‘Africanisation’ of the politics of software, the proprietary/non-proprietary divide is but one of several vectors. Perhaps this should not come as a surprise, given the hybrid dynamic of FLOSS itself. In her analyses of the cooperation between corporations and the FLOSS community, techno-feminist Yuwei Lin describes this process as ‘hybrid innovation’, marked as much by a sense of interdependence and mutuality as by unease over the irresolvable tension between commercial and community-oriented practices.33

The dependence on corporate support illustrates the paradoxes of immaterial labour and suggests that common assumptions regarding the relationship between FLOSS and visions of a post-capitalist future be revisited. Often understood in terms of an anti-monopolistic practice, FLOSS is not, as such, anti-capitalist (GPL-founder Richard Stallman describes himself as anti-fascist instead). One of the reasons for the popularity of the FLOSS paradigm is that it appears to be able to accommodate a wide range of visions of cultural, economic, and social transformation, from cyberlibertarian views of natural capitalism to the post-autonomist vision of a coming communism, actively anticipated by way of multitudinal self-organisation. Countercultural cachet notwithstanding, the high visibility of FLOSS as a mainstream alternative to proprietary software is due in large part to the support from corporations like IBM or Sun Microsystems, and the commitment to openness reverberates with an info-capitalism attempting to reinvent itself around concepts of trust and transparency.

And while the controversies over software licenses are so intense because their clauses redefine what property means in the network society, not all of FLOSS is geared toward an enlargement of the information commons. Following the popularity of user-defined license provisions like Creative Commons, Sun Microsystems has announced its own ‘Open Media Commons’ initiative to develop FLOSS based digital rights management tools.34 FLOSS, already adopted by cost cutting governments across the world, is also easily aligned with state power – South Africa’s FLOSS and open content strategy includes, after all, the migration to FLOSS of its prison management systems.35 This makes one-size-fits-all approaches to the politics of software almost impossible, even more so in the context of African ICT controversies.

Yet what is certain is that an African info-politics is already emerging along key faultlines of network-economical conflict, challenging images of an Africa forever mired in ‘tribal rampages’ and natural disasters. And while it is too soon to say what transformative impact FLOSS efforts may already have had, examples like FOSSFA or SchoolNet show that FLOSS is not reducible to an imperial voluntarism out of sync with the ‘real’ Africa. FLOSS‘s collaborative ethic is not a post-materialist luxury limited to those on the sunny side of the digital divide. Instead, the Africanisation of FLOSS in terms of an ‘ubuntu’ philosophy of sharing may soon connect to other collective efforts in a larger Pan-African vision of renewal. This project driven mainly from below is rarely included in the sovereign perspective of afro-pessimist prophecies accompanying the current wave of imperial nostalgia.36 In his documentary afro@digital, Congolese director Balufu Bakupa-Kanyinda retrieves the story of the Ishango Bone, the oldest known table of prime numbers, to suggest that mathematics, and by implication the network society as a whole, needs to be given a new, Afrocentric genealogy. FLOSS advocacy may not have to go that far. Yet perhaps a discussion of software politics in Africa should not begin with the question of software, but with the contradictory images of Africa that linger in the collective post-colonial imagination.


1 For an account of free software vs open source software in terms of a struggle over discursive hegemony, see David  Berry, ‘The Contestation of Code: A preliminary investigation into the discourse of  the free/libre and open source movements’, Critical Discourse Studies 1.1 (April 2004),  65–89,


3 Bildad Kagai and Nicolas Kimolo, ‘FOSSFA in Africa: Opening the Door to State ICT Development Agendas – A Kenya Case Study’, SSRC The Politics of Open Source Adoption (2005),; CODI, ‘Resolutions of the Fourth Meeting of the Committee on Development Information (CODI-IV)’, UNECA Commission on Development Information (23-28 April 2005), See the country policy tables at:



6 Derek Keats, ‘Idlelo: First African Conference on the Digital Commons’, Final Report to Department of Science & Technology South Africa (2004),




10, A thin client is a computer (client) in client-server architecture networks which have very few resources, so it has to depend primarily on the central server for processing activities. A thin client network centralises maintenance tasks on a (remote) server


12 For a middle of the road assessment of the African Renaissance, see Elias K. Bongmba, ‘Reflections on Thabo Mbeki’s African Renaissance’, Journal of Southern African Studies 30.2 (June 2004). For more critical views, see Neil Lazarus, ‘The South African Ideology: The Myth of Exceptionalism, the Idea of Renaissance,’ South Atlantic Quarterly 103.4 (Fall 2004), 607-28, and Neville Alexander, ‘South Africa – Example or Illusion?’ An Ordinary Country: Issues in the Transition from Apartheid to Democracy in South Africa, New York: Berghahn Books, 2003, 137-73, 188-90

13 John Perry Barlow, ‘Africa Rising,’ Wired 6.01 (1998)


15 Ethan Zukerman, ‘Free Beer Doesn’t Sell’, Linux Journal 111 (July 2003)


17 David Wheeler, ‘Why Open Source Software / Free Software (OSS/FS, FLOSS, or FLOSS)? Look at the Numbers!’, (May 2005)

18, ‘Comparison study of Free/Open Source and Proprietary Software in an African context: implementation and policy-making to optimise community access to ICT’ (May 2005)




22 Bildad Kagai, ‘FOSSFA responds to Microsoft-UNDP Deal’ (Feb 2004),

23 Yash Tandon, ‘An Alternative View on Technology’, SEATINI (Sept 2004),

24 Thandika Mkandawire, ‘Good Governance: The Itinerary of an Idea’, D + C Development and Cooperation 31.10 (01 Oct 2004)

25 Rebecca Wanjiku, ‘Brazil opens its arms to Africa’, Highway Africa News Agency (05 April 2005)


27 Peter Drahos and John Brathwaite, ‘Who Owns the Knowledge Economy? Political Organising Behind TRIPS’, Corner House Briefings (Sept 2004),, also see

28 Yochai Benkler, ‘Coase’s Penguin, or Linux and the Nature of the Firm’ (2002); James Boyle, ‘A Politics of Intellectual Property: Environmentalism For the Net?’ (1997)

29 Rishab Ghosh, ‘Free/Libre/Open Source Software for developing countries: skills, employment and costs’, 2nd National Congress on Software Libre, Buenos Aires, Argentina (07 June 2005),


31 G. Pascal Zachary, ‘The African Hacker,’ IEEE Spectrum Online (Aug 2005),

32 My assessment of Soft is based on an email exchange with Guido Sohne (Sept 2005). Also see

33 Yuwei Lin, ‘Hybrid Innovation: How Does the Collaboration Between the FLOSS Community and Corporations Happen?’ Knowledge, Technology and Policy 18.2 (Summer 2005), 34 As the history of commons-based resource management systems shows, ‘commons’ doesn’t necessarily imply the free-for-all often associated with it, and it is not necessarily obvious – a point made frequently by advocates of indigenous and traditional knowledge databases, for example – that ‘commons’ and ‘access restrictions’ are mutually exclusive; what emerges instead are ‘hybridised’ commons that take the information needs of specific communities into account.


36 Martin Meredith, The State of Africa: A History of Fifty Years of Independence, London: Free Press, 2005; Seumas Milne, ‘Britain: imperial nostalgia’, Le Monde Diplomatique (May 2005). Also see Chris Landsberg and Shaun Mckay, ‘Engaging the new Pan-Africanism’, Centre for Policy Studies (Sept 2005)

Soenke Zehle <s.zehle AT> teaches transcultural media studies at Saarland University, Germany


Proud to be Flesh

Capital Climes

Liberal critics assume that climate change is a ‘man-made’ process, not a natural phenomenon. Against this view, Will Barnes argues that global warming does indeed have an inhuman agent behind it – not nature but capital


Capitalist Criminality


With invaluable assistance from modern science and technology, capital is perpetrating a crime for which there is no name, the enormity of which has hitherto been and, apart from the literary holocausts of anti-utopian science fiction, largely remains unimagined.


Capitalist development, whether expanding or contracting and crisis-ridden, merely intensifies and exacerbates ecological degradation. The mindless and extraordinarily destructive disregard for the ecological consequences of the profitable pursuit of exploitable ‘natural resources’ has led, for example, to the consumption of hydrocarbon-based fossil fuels that are producing a warming of the earth that is melting the ice caps and raising sea levels, thus threatening the vast seaboard populations of the world. It has produced specifically the denuding of tropical forests, which, in the end, will deprive humanity of incalculable medicinal wealth. This pursuit has produced the strip mining and clear cutting of vast tracts of land – which have, in turn, created desertification rendering potentially agriculturally productive lands depleted. It has created a biotechnology centred on genetic engineering that has introduced transgenes transmitted through natural interspecies crosses which, in turn, have allowed emergence of resistant superweeds and superpests, which, in their turn, demand the application of further chemical poisons, i.e., herbicides and pesticides, that end up in groundwater, waterways and oceans and poison the food chain. The profitable pursuit of exploitable ‘resources’ of nature has further led to industrialisation of poultry and livestock production that, in the interests of a greatly enlarged worldwide markets for meat consumption (chicken, beef, pork), has generated life threatening strains of antibiotic resistant bacteria (E coli, Campylobacter, etc.) and highly pathogenic, potentially pandemic viruses. It has led to the massive and criminal termination of animal species and micro-biotic life forms, an extraordinary contraction in the very basis of life itself. More precisely, the pursuit of exploitable ‘natural resources’ for capitalist production on a world-scale has created a geological and biological regression reversing thousands and millions of years of natural evolution.


Indeed, species, new ones, comes into being and they disappear: Human beings, abrupt climatic changes, and even the occasional (by geological standards) natural calamity originating from beyond the earth in the solar system bring about extinctions, even the rare mass extinction. Yet, if the Arctic polar bear dies out (as a consequence of its inability to gain access to food sources as global warming melts the ice fields it uses to traverse distances and as a result of the early death of its young as PCBs, the product of industrial emissions that fall in their greatest concentration to earth in the Arctic, lodge in milk of lactating mother bears), it is an unnecessary loss of a majestic creature, one that is final. Extinct species do not make evolutionary reappearances. Nonetheless this loss, unintended and undesired, is not of the same order or magnitude as that at which bourgeois civilisation unknowingly takes aim. The problem is that specifically capitalist social transformations are borne along by an objective logic whose outcome is necessarily the very destruction of the natural world in its autonomy, cohesion, and otherness, that is, in its abiotic coherence, as living, and as a presupposition of specifically human life: It is the natural world as the totality of earthly nature (earthly nature as a totality and in its totality) that capitalist social transformation takes as its object.


The grand sweep of capital’s movement at the beginning of the 21st century can only portend a future in which nature, because for capital nature is raw material for commodity production, at the very least undergoes continuous and ever greater homogenisation. Homogenisation means in the most minimalistic sense the ongoing destruction of ecological diversity, of species-specific ecological niches and, accordingly, species destruction. It entails, first, the loss of nature as an aesthetically beautiful setting and context in which human and other life forms live. Second, homogenisation of nature is characterised by the emergence and proliferation of a limited number of dominant species (e.g., coyotes, rats, starlings, cockroaches) that, highly adaptable to disrupted habitats, will be increasingly unsettling to life practices of other species. Third, it means the gradual disappearance of real, organic foundations of human (and generally animal) health and medicine as centres of biodiversity (such as the Amazon forests) disappear or collapse. Fourth, produced in and through the movement of capital, homogenisation of the earth will tend toward the creation of nature existing at two poles, uglified raw material basins (denuded forests, open mines, desertified grasslands, etc.) at the start of a cycle of commodity production and toxic wastelands and garbage cesspools (wetlands turned into landfills, decaying urban centres, vast stretches of ocean densely littered with plastic refuse, etc.) at the end of that cycle, i.e., with commodity consumption. Human beings acting and interacting in nature in this form will tend over several generations to become organically, physiologically, and perhaps even anatomically and morphologically a degenerating species.


The presupposition of homoeostatic, biospheric nature (i.e., nature as a self-regulating totality capable of internally modifying and adjusting its moments to maintain stability and equilibrium in the face of external changes, e.g., increases in ultraviolet radiation) is sufficient internal diversity. This diversity includes, among other things and relations, a variety of different climatic regimes and zones, a multitude of regional landscapes, and, centrally, a huge assortment of different life forms. Thus, it is precisely this internal diversity that the movement of capital is destroying and destroying independently of climate change, and, accordingly, it is the self-regulating character of nature, and life as it has developed over tens of thousands of millennia, that is disappearing.


Climate Change

What is important to recognise here is that the criminality of capital goes beyond the vast and potentially catastrophic problems that climate change has introduced. Even if societies of capital at the level of the world come to grips with ongoing climate change in a manner that allows them to maintain the ‘achievements’ of capitalism (densely populated reserve industrial armies and objective substance, i.e., built environment, means of production and the mass of circulating commodities) on capitalist terms, generalised ecological collapse as described above is encompassed by capitalist development itself, that is, by the practical reduction of surrounding nature to raw materials for capitalist production.


Let us, here and now though, consider climate change. The earth as we immediately apprehend it, what we call the biosphere, is a unitary phenomenon, its various partial systems (weather, oceans, atmosphere, abiogenic matter, organic life including ‘man’) are fully integrated and mutually dependent. It is a self-regulating ‘system’ whose internal diversity (precisely that which capital without regard to climate change is destroying) provides its own coherence and guarantees the preservation of life on earth. As the ‘external envelope’ of earth, it orders the constant energy inflow from space (solar energy) on which it is dependent. The constitution of earth’s biosphere has qualitatively changed over geological time, meaning its composition, hence its structure (or the ‘laws’ governing its ‘behaviour’) has also changed. For any evolving, real totality such would have to be the case. What is basic for the earth as self-regularity is comprehended physically: The earth, from this perspective, is grasped as an energy system that makes ‘self’ adjustments to maintain an energy equilibrium (inflow of solar heat equals its outflow over time). Climate change is the mechanism of this adjustment, and climate is the immediate expression of this constitution of earth’s biosphere.


To understand climate, and climate change, we must consider reconstructions of the earth’s geography on a geological time scale. While the earth, at some 3.8 billion years of age, is estimated to be nearly as old as the solar system, geological dating begins in earnest 570 million years ago with the emergence of truly complex, highly developed life forms (fish, insects, reptiles). For the entirety of this vast sweep of geological time down to the present, we can designate ‘cool’ and ‘warm’ climate modes on earth. A simple determination of a climate mode is offered, namely, the presence of ice … ranging from periods of intense glaciation (emanating from the poles covered with permanent ice caps) to phases in which the high altitudes have been seasonally cold. Tectonic activity, because it is capable of shifting continental-sized landmasses, has played the largest role in making possible intense cold, especially glaciation. For the latter only occurs when there are landmasses very near or over the poles. It should be obvious that over this simply enormous stretch of geological time, there were periods when landmasses were near or at the poles, and periods when they were not.


Antarctica split off from the ancient, gigantic continent known as Gondwana (encompassing present day Australia, Antarctica, South America, Africa and Asia Minor and Arabia) and arrived at it current locale over thirty million years ago. But by the time it reached what we identify as the southern pole it had already begun to glaciate (in response to tectonic changes, to plate uplifting and volcanism). The formation of the Southern Ocean, as an open waterway (with accompanying winds) sweeping round the earth, isolated Antarctica creating an atmospheric barrier against weather systems beyond this continent. Until recently, Antarctica has largely made its own climate, one very cold and dry, which, in turn, has helped cool an earth that hitherto (prior to its separation and drift) was warm and wet, Gondwana largely a temperate rainforest. Some twenty million years ago, tectonic activity entered a period, still ongoing, of considerable diminution (after the continents as we know them today formed), lessening, for the geological time being, its determination in the formation of climate. (Continental drift has brought large landmasses near to the poles thus allowing the earth’s orbital eccentricity to cyclically create ice ages.) These cooler, drier conditions were particularly noticeable in Africa. And, under these newly forming climatic conditions, species, especially some of the truly large species (ancestors to many of today’s large mammals who to them stand only as dwarf instances), died off and new ones appeared. Among the latter group were hominid lines, including the larger brained hominids who appear to be our ancestors.


Beginning about two and half million years ago, the dynamic climatic structure (‘laws’) characterising the most recent geological epoch stabilised. So what does our geologically ‘contemporary’ climatic structure look like?


For an answer to this question we must consider physical theory aimed at solving the problems of recurrent ice ages (glaciation). Today, our understanding of glaciation in the geological time frame we live in (it more or less slowly began fifteen million years ago) has largely been resolved into three great cycles that drive the earth’s climatic variability. The earth’s orbit around the sun is elliptical completing a cycle every 100,000 years. At its greatest as opposed to its smallest distance from the sun, a determination of the earth’s eccentricity, there is a 20-30 percent reduction in the amount of radiation (heat) that reaches the earth. At that eccentricity, it is this relation (of sun to earth) that has produced ice ages at regular intervals over the past two thousand millennia. The second cycle concerns the tilt of the earth on its axis, its obliquity. Tilt determines where the most radiation from the sun will fall on the earth. A full cycle occurs every 42,000 years. As the earth revolves around the sun, tilt produces seasons. The last, shortest cycling, periods of 19,000 and 23,000 years, turns, so to speak, on the earth’s wobble (called precession). Created by the magnetic mass distributed unevenly and off-centre between the earth’s inner core and mesosphere, wobble creates a shift on average every 21,700 years in its ‘true (celestial) north’ (north determined along its axis in contradistinction from the Geographical North Pole) from Polaris to Vega. This shift affects seasonal intensity (e.g., hot summers, frigidly cold winters). In the case of all orbital cycles, the changes in radiation that reach the Earth are amplified by the amount present (more or less) of those gases, especially carbon dioxide, that trap solar radiation in the atmosphere.


We note that once the current warming synonymous with the last interglacial (the end of the last ice age ended roughly 11,600 years ago) was under way, ‘archaic’, stateless communities first began to form. Early on during this interglacial (effectively extended by the greenhouse gas emissions warming of the last century and a half) the rudiments of agricultural, sedentary social life, the state and civilisation emerged for the first time.


Relative to over two million years of ‘contemporary’ geological time, historically constituted patterns of weather, such as the regularity of seasons each with its own predictable structure, are today disappearing. Instead, weather patterns that have existed over millennia are vanishing, and based on these vanishing patterns ‘the weather’ itself is losing its predictability. Similarly, climatic ‘regimes’ characteristic of specific geographical regions (e.g., a temperate region with mild summers and cold winters) are losing their defining features as these regimes become much more ‘elastic’. Destabilised, under conditions of global warming induced climate change, the occurrence of weather at its extremes becomes more and more frequent (increased intensity of hurricanes in the Gulf and El Niño effects) because warming radically increases the moisture content in the atmosphere and thus produces extreme weather. (The unpredictability and extremism of global warming is perfectly consistent with instances of ‘normality’ by historical standards, e.g., frigid cold such as in Moscow last winter. It should be added that those extremes are not fixed. What is an extreme today may be ‘normal’ five years from now, and what is extreme then might very well hardly be conceivable today. In an abstract way, the only requirement for such warming is that over time the average annual temperature rapidly rises for the planet as a whole.)


Consequences – a ‘New Nature’?


Climate change and in particular warming, as we now understand it, can be abrupt, occurring over years or decades and not over millennia (or hundreds or maybe thousands of millennia). Abrupt climate change has certain ‘tipping points’ that ‘force’ change. Under geologically current conditions, there are three components of the self-regulatory system of the earth that are crucial for the constitution, if you will, of a ‘new nature’, that is, a different regime of climate, seasonality and weather. They are a shut down of thermohaline circulation in the North Atlantic (the Gulf Stream as it warms Europe, a shut down of which would be disastrous for Britain and North Europe), the destruction of the Amazon rain forests, and the release of gas hydrates (clathrates, ice crystal trapped methane, a carbon-based gas) from the ocean floors. All three are threatened by warming as it is generated by capitalist activity on the scale of the world. For example, sufficient warming (say, by no later than 2080) would melt enough of the Greenland ice sheet to shut down the Gulf Stream in the North Atlantic (melting of which pushes fresh water into the Stream’s current – a vast conveyor of hot water from the Gulf, diluting the heavier because saline Gulf water, thus, preventing it from dropping toward the ocean floor in the area of Iceland, further preventing it from pulling more warm water in behind it, i.e., effectively shutting it down). The shut down would induce cooling which, in turn, would bring a halt to ice sheet melting that, in turn, would eventually restart the current and start a re-warming, all of which could go on for centuries until the ice reserve had reached a reduced threshold at which point it could no longer add enough fresh water to stop the circulation. Climatic see-sawing of this sort is one possible, under current conditions likely, outcome of warming. Climatic see-sawing is not, however, a lawful creation of a ‘new nature’, for example, a ‘warm’ or ‘cold’ mode, or better, as long as see-sawing continued, a new mode would not be firmly established, as climate at least in some parts of the world alternated between the two. (On the other hand, a massive release of clathrates premised on sufficient warming of the oceans, leading to species extinctions on the order of the Permo-Triassic extinction event, is another, this time abrupt, shift that could usher in a new climatic regime in just decades.)


Suspending consideration of the shape of a ‘new nature’, let us briefly reflect on the some of the features of warming as it is now occurring. These include, among others, increasing frequency and intensity of extreme weather (ice storms, hurricanes or cyclones, tornadoes spun from hurricanes, etc.), rising sea levels, and, possibly, the cooling of northern Europe (not to mention elsewhere the shift northward of subtropical seasonality and temperature into temperate zones).


To even the casual observer here in the United States, the incidence of extreme weather has qualitatively been on the upswing since the 1980s. For example, in 2005 the North-West experienced a severe winter drought; western states had a record heat wave in July; in the South-West, a marked increase in winter storms included record rain and snow; the central states had a major drought worsen throughout the summer; the South and South-East experienced a record number of hurricanes, fourteen, seven of which were major; and, the North-East had flooding in April and record precipitation in October… In two decades, rising sea levels will flood as much as a quarter of the land mass of Bangladesh; Dhaka, now on average 137 miles (221 kilometres) from the sea, will front the Bay of Bengal at 60 miles (97 kilometres); and, thirty million people will be displaced, countless others dead. Today, the freshwater wells immediately south of Dhaka have become increasingly saline, the water nearly undrinkable. Or, again, in two decades parts of Sydney, Australia, beginning from its harbour, will be underwater… As we write (28 February 2007), the temperature in London (latitude 51.52 °N) reached 47° F (8 °C); in the region of Moosonee (latitude 51.31 °N) in eastern Ontario at the southern tip of James Bay temperatures ranged from 9 to 14 °F (-13 to -10 °C). Both are roughly seasonal averages. And while London may generate 10F/6C degrees of its temperature as a consequence of its concentration of built environment, Moosonee is London’s fate under conditions of a shut down of the thermohaline circulation in the North Atlantic.


'Man-Made’ Climate Change?


The overwhelming consensus among scientists and spokespeople of capitalist states in the world today (and even in the U.S., Australia and Bangladesh among the most recalcitrant of states, there is grudging acceptance) that, in terms of causation, ‘man’ is responsible for warming induced climate change.


While the evidence is straightforward, the attribution both of culpability and the liable agent are effectively ideological, masking real agency and responsibility. Consider, first, the evidence.


From the outset of the current interglacial some 11,600 years ago down close to the end of the 18th century, average global surface temperatures have risen slowly, very slowly, but steadily. This increase, it should be noted, is relative. Plot the average from the peak of the last ice age (last glacial maximum) 22,000 years ago, and that incremental increase (circa 9600 BC to 1760 CE) is not noticeable. But plot average global surface temperature from 1760 to 1870 and the line of temperate approaches a positive 15° angle of incline. Plot it from there to the present and the angle of incline rises to roughly 45°. Back up and plot it from 8000 BC to the present, and those last 235 years present a nearly straight vertical rise.


Note the dates: As suggested earlier, circa 8000 BC is the point at which we mark the beginnings of sedentary agriculture, social division and the rise of the state. And 1760 marks that point at which we can date the commencement of the mechanisation of industry in the West (i.e., in capitalist England). In the former case, initial sedentary life and, with it, rising population began to generate a human input, methane (CH4) and carbon dioxide (CO2), into the atmosphere, nothing that before 1760 might delay a glaciation, but incrementally in the short view, noticeable. The development of capitalist industrial production after 1760, however, has indeed transformed the chemical make-up of the atmosphere. How?


On a geological time scale, atmospheric CO2 has ranged from lows of 200 parts per million (ppm) during major glaciations to highs of 280-300 ppm during warm interglacials. Today, atmospheric CO2 concentration stands at marginally more than 380 ppm, and is rising in geological terms at an extraordinary and unprecedented rate with, at this moment, no end in sight. Best estimates put a tipping point (qualitatively hastening ice cap melting) as low as 480 ppm, reachable with even modern emissions reductions before 2080. This, then, is the major piece of evidence for anthropocentric based warming.


Second, consider the attribution of agency and, accordingly, responsibility for climate change. The Intergovernmental Panel on Climate Change tells us ‘man’, ‘his’ activity, is altering climate. In one sense, a very crude argument can and has been made (though not explicitly by the IPCC) that sheer human numbers, a global population of six billion, and the outputs that result from the volume of activity of so many people, bear direct responsibility. While the quality of human (animal and plant) life may well be grounds for limiting population growth, global warming does not result merely from the activity of masses of humans at any level of development: Today, an Indian child (the Indian subcontinent being one of the most densely populated regions on earth, India having the second largest population in the world) consumes 1/90th of the annual energy that her American counterpart does. The problem is forms of consumption, energy inefficient consumption not to mention profligate consumption, and the type of development that underpins that consumption.


If we have raised ourselves to the level of an understanding at which it is intuitively obvious that human population, either in the contemporary sense or the historical sense (going back some 10,000 years) or both, is neither the agent nor, accordingly, responsible for climate change, we have dissolved one mystification. ‘Man’ (here, human population generally) as such is a merely formal concept without a determinately real referent. Perhaps, then, the ‘industrial system’ is at issue. Or, perhaps, it is a question of ‘man’ in the ‘industrial system’. In either case, we are dealing with empty abstractions. The issue is the historically specific configuration of groups of living men and women working within that ‘industrial system’, i.e., capitalist production. More precisely, the issue is the group which dominates that production. We refer, here, to those personifications of economic categories, capitalists (as well as the bloc of classes they have in tow). Capitalists (and states that unify otherwise disparate or competing capitals) make decisions concerning the allocation of monies and capital, concerning what and the manner in which ‘natural resources’ are exploited and utilised, and concerning the technologies on the basis of which those activities are carried out. Still, it is not just those decisions, but the entire system of social relations, that is at issue in climate change. In this sense, it is the subject of society (a part of nature, yet confronting it as raw material for the production of commodities) that is the agent responsible for climate change. It is not ‘man’ that is remaking, as it were, the biosphere; that remaking is a product of ‘his’ own objectified and alienated power. This power is capital: Capital is the real subject of human society under conditions of capitalist production (real domination).


At the ‘price’ of cataclysmic human and social costs abrupt climate change could transform the geography and sociology of social life: Over the period of decades, a qualitative increase in regimentation and repression of domestic populations to insure compliance with draconian restrictions on energy consumption; drought and starvation, massive, unnecessary death; depopulation of coastal areas around the world, forced dislocation, creation of huge frontier zones and camps of displaced persons along national borders, refugees in the tens of millions living in squalor without hope, resource wars between states, ethnic cleansing and genocides as a regular feature of daily life. Nonetheless, while capital cannot stem the ecological collapse which its very movement is engendering and within which climate change is situated, it can and, in our view, will meet the warming-induced, climate crisis. Whatever else, the social relations of capitalist production will neither disintegrate nor disappear in the maelstrom of climate change.1 The real question is whether capital, at unimaginable human cost, will set the terms on which this change is confronted, or whether we shall.



[1]In the imperialist centre of global capitalism, governed by that most backward, obstinate of regimes, capital has begun to weigh in. As we write, TXU Corp., a Texas-based energy conglomerate is being sold to a group of finance capital-based private investors in the largest ever private equity deal. The new investment group promises not to build eight out of eleven proposed coal-fired power plants, and to double its investments in wind power and the creation of internal efficiencies qualitatively reducing emissions; at the same time, independently of the American State at the national level, five western state governments including California have signed an agreement to reduce greenhouse gas emissions.



Will Barnes <wwbarnes AT> is a long-time activist living in the northern United States



Proud to be Flesh