Introduction – 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.