Property, Commoning and the Politics of Free Software

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* PhD thesis - "Property, Commoning and the Politics of Free Software". J. Martin Pedersen. Thesis submitted January 2010, Department of Philosophy, Lancaster University. Examined by Massimo De Angelis.

The thesis is a philosophical and political inquiry into the material nature of immateriality and was published as the first of a two volume Special Issue of The Commoner and also presented on http://commoning.wordpress.com

Source

Pedersen, J.M. (2010) The Commoner, Special Issue, Volume 14, Winter 2010,

URL = http://www.commoner.org.uk/N14/jmp-essay-full-the-commoner.pdf


Abstract

The enclosure of cyberspace constitutes a new frontier of capitalism. Yet the Internet continues to facilitate new forms of collaboration and co-creative social relations. Whether this tension will result in a consolidation of capital and its underpinning logic, or lay the foundation for a world of voluntary cooperation, will depend on how these novel phenomena are conceptualised and organised.

This thesis argues that leading commentators on Free Software make two theoretical mistakes which threaten to have grave practical implications.

First, they conflate private property (a particular form of property) with the concept of property in general.

Second, they misconceive cyberspace – the intangible realm – as distinct from the material world – the tangible realm.

Consequently, prevailing property relations in the tangible realm are left unquestioned, while the material underpinning of cyberspace is obscured. By contrast, the thesis aims to show the critical importance of recognising the materiality of the novel phenomena made possible by the Internet. In addition, an examination of concepts of private property in liberal jurisprudence reveals a number of distinct components and potential configurations thereof. It is argued that all relations between people with regard to things can in fact be understood in terms of configurations of these same components. This allows for an understanding of commoning – collective action based on shared values and self-organisation – in terms of property. Free Software, on this model, can be understood as an autonomous commons that has constituted itself through the reconfiguration of a private property right, namely copyright.

Conceptualising the relational modalities of Free Software and commoning in terms of property thus feeds back into the concept of property. This understanding can in turn be mapped back onto the tangible realm, reanimating debate about the range of possible property relations more generally."


Summary

Chapter 1 – Free Culture in context

is a critical discussion of the way in which a number of key commentators are framing the politics of cyberspace. I argue that their framing of the debate is mistaken in two key ways. First, it conflates private property (a particular configuration of property) with the concept of property in general. Second, it relies on an untenable distinction between the tangible and intangible realm, which I examine in detail with reference to the commons of the land.


Section 1.2 – Beyond property: promises of the networked information society - introduces cyberspace in terms of libertarian values, the techno-social promise of a “single consciousness” in a “global village”, and the architecture of the Internet. It then discusses a liberal, economistic conceptualisation of the novel co-creative social relations that cyberspace facilitates. The libertarian voices in cyberspace reject the industrial age governments, who have “no sovereignty where we gather”, and state that property does not apply to cyberspace, because it is a space without matter. A brief technical overview of the Internet reveals its end-to-end (E2E) architecture which facilitates peer-to-peer (P2P) activities and ensures that all data flows equally through the Internet: the network is “neutral”, because all flows of data are equal before the law of the Internet.

Network “neutrality” and E2E + P2P is seen as the foundation for a new mode of production of which the very successful example of Free Software is most significant. In his conceptualisation of Free Software, Benkler (2006) has coined the term “commons-based peer production”, which is a specific type of “peer production”, all of which he groups under the umbrella term “social production”. In presenting Benkler's work

I also examine his sources of inspiration in order to locate his contribution within economic thought and hence illustrate how social production is framed and thus, to a significant extent, given shape.


Section 1.3 – Information exceptionalism: protecting social production and the Internet commons? - begins with a brief overview of the politics of intellectual property, which has become an important part of the global political economy. Next, I return to the two-fold claim that cyberspace has no matter and that property applies to matter only. It is a shared claim that defines the Free Culture movement, which has been inspired by the Free Software movement to protect the freedom to share and cooperate in cyberspace. This position with regard to property I refer to as “information exceptionalism”. While information exceptionalism sets out to protect social production and the cooperative potential of cyberspace, I argue that the insistence on a distinction between the “tangible realm” and the “intangible realm” has important political consequences. I show that information exceptionalism partly rests on a mistaken contrast between property and policy, and begin to develop the argument that understanding Free Software in terms of property is a recursive process through which the concept of property comes to be seen in a new light.

Section 1.4 – Material foundations: on cables and machinery, food and shelter – examines the material underpinnings of cyberspace to exhibit the effects and scale of material and energy use involved in information and communication technology. I illustrate how exclusive control and decision making authority over material foundations (given through private property rights) facilitates an extraction of wealth from activities unfolding in the intangible realm that is dependent on this materiality. I hence argue that the intangible realm is threatened by enclosure in the first instance not due to the expansion of private property rights into the intangible realm, but because of the existence of capital interests – based on private property rights – in the tangible realm. I thus conclude that the threat of cyberspace enclosure cannot be confronted simply by rejecting property rights in the intangible realm, because their existence in that realm is primarily an effect. It is also necessary to address the actual cause of enclosure as it exists in the tangible realm, and which arises from exclusive control over land, its resources, and the means of production and distribution. Moreover, by positioning themselves in this way, information exceptionalists fail to show solidarity with the commons of the land, that is, the real commons. The virtual commons are thus disembodied and left vulnerable to the exigencies of the material realm. Consequently, they are in perpetual need of a strong state for regulatory intervention in order to continuously limit the reach of capital.


Chapter 2 – The properties of property

is an analytical disentanglement of property in particular (as in the form of private property) from property in general (as social relations with regard to things). The purpose is to provide a framework within which the social relations of commoning can be understood alongside other variants of property relations, such as private or public property. The aim of this chapter is less normative than it is analytical: property is made up of components that can be configured in different ways.

Understanding the elementary structure of property facilitates its reconfiguration. While providing mainly a structural account of property, I nonetheless start from the normative assumption that private property can only be justified for real persons and only for a limited number of things. The institution of property distributes decision-making authority over access to and use of resources in societies. Private property invests such authority in individuals and quasi-individuals, such as firms, authorising their pursuit of self-interest. While private property as sovereignty might develop personal autonomy and identity, enable open- ended creativity, and constitute protection from external interference, in capitalist democracy, it primarily legitimises profiteering in the interest of shareholders. As against the popular myth of the “tragedy of the commons”, I hold that care for things such as land, its resources, and the means of production and distribution is best achieved collectively.


Section 2.2 - Property in general, property in particular

is an introduction to the complexity and elusiveness of the idea of property. It presents and relativises the idea of property as dominion: the absolute control of an individual over a thing of the external world. While this conception runs deep in much philosophical and everyday discourse, it is argued that no legal system has ever instituted property relations that were absolute in this sense. Limitations are part of all known property regimes. I will introduce the work of James Harris in this section, who has forcefully argued that despite the importance of limitations, the conception of property as dominion is presupposed in all legal systems.


Section 2.3 - Property as social relations is an explanatory, gleaning journey through key texts and concepts in liberal jurisprudence. I begin this section with an exposition of W. N. Hohfeld's matrix of jural relations which correlates rights and duties and powers and liabilities. Using an anthropological application of that matrix, and support from within liberal jurisprudence, I argue that property is normative protocols guiding relations between people with regard to things. Next I draw upon Harris's account of property as a mechanism for distributing control powers and use privileges with regard to resources. I adopt Harris's characterisation of private property as authorising self-seekingness in one's use of and control over things. While I agree with his view that all property relations in capitalist democracy are developments of the fundamental idea of dominion, I argue that it is crucial to begin an account of property with the open-ended idea of social relations with regard to things. To do so is to confront the hegemony of private property in political and legal theory, as a corollary of its confrontation in practice.


Section 2.4 - A framework for property as social relations – introduces three core variables of property as social relations with regard to things. The relating subject refers to the social unit within which property relations hold and are performed, usually a community; the related-to object refers to the thing or resource with regard to which property relations hold and are performed; and the relational modality refers to the way in which these relations are shaped through normative protocols, by guiding the behaviour of people with regard to one another and the use of things. I discuss these variables and their possible extensions at length, and argue that property relations are primarily about actions, and property protocols hence about enabling or constraining action. I also make the case that property protocols inhere in customary practices and values as much as in legal codes and otherwise articulated norms. This is important as I want to be able to account for commons, and traditional relations and practices of commoning, as property. I conclude that in order to understand what it means to own something, an inquiry into the relational modality of any given form of property is indispensable.

Section 2.5 - Specification of property: the configurations of relational modality – is an examination of the elementary structure of private property. Following Harris, I show that basic private property consists of a collocation of legitimised control power and use privileges. Control power is legitimised in the sense that, short of contravening criminal and other law, whatever decision the owner makes with regard to the use of a thing is justified, simply by virtue of being her decision. I provide heuristic diagrams in order to bring to the fore the different elements which make up basic private property on the one hand, and capitalist private property on the other. Capitalist private property is characterised by a collocation of control power not only with use privileges, but also with wealth effects, or income rights. The collocation, however, is by no means a necessary one. Moreover, a justification of one of the elements (control power) does not amount to a justification of another element (wealth effects). I show by way of illustrative examples that changing the structure of private property, or reconfiguring its specifications, even if only in small ways, can lead to surprising transformations of the kind of community that this relational modality gives rise to.


Section 2.6 - Property and commons – discusses the ways in which common property forms are usually classified and distinguished from private property, and the ways in which commons can be understood as particular kinds of property configurations. I note that the values underlying private property are in important ways the common values of capitalist democracy. This points towards the view which I further develop later in this section, namely that capitalist democracy is, in some not insignificant way, also a commons. A discussion of three different accounts of common forms of property (Benkler, Waldron, Harris), shows that the differences between different property forms are all differences in the configuration of, essentially, the same elements. The substitution of “social interest” for “legitimate self-seekingness” is identified as the key characteristic of non-private property forms. I argue that property protocols, whichever way they may be expressed, all provide answers to the question of who makes (or can make) decisions over the actions of people with regard to things, and by reference to what these decisions are legitimised. In order to develop an idea of a self-constituted commons within capitalist democracy, I use Harris's account of communitarian property, which he sees as a form of resource-holding that is recognised by, yet autonomous from, the wider legal system that surrounds it. I argue that the articulation of property protocols facilitate such self-constitution.


Chapter 3 – Free Software as property

is a detailed exposition of the Free Software movement, its history, practices, and legal innovations. I cast it as a commons that has autonomously constituted itself. The aim of this chapter is to show how and why it makes sense to understand Free Software as property. Not only is the central achievement of the Free Software movement the reconfiguration of core elements of copyright, that is, a transformation of property relations, but conceptualising the relational modalities of Free Software in terms of property also feeds back into the concept of property: mapping this understanding back onto the tangible realm reanimates debate about the range of possible property relations more generally. Section 3.2 – The nature of code – provides a basic account of software in terms of how its code is written, developed, commented upon and finally converted into executable programmes that can be run on a computer. Because of the inscrutability of binary code – readable only by machines – it follows that access to the source code – readable by humans – is a precondition for analysis, customisation and public scrutiny of software. Without this access to the source code, software represents a “black box” technology, the internal workings of which are hidden, and hence uncertain. Given that software is integral to many crucial systems, such as engines, brakes, flight control, ambulance dispatch, power stations etc., the creation of uncertainty constitutes not only a democratic issue, but a real danger.

Section 3.3 – A brief history of Free Software and its imaginary, scientific and cultural origins – begins with an examination of how the science of computing is embedded in the scientific commons which predates the rise of modern science. I provide a detailed account of the enclosure of the hacker commons that began in the 1970s, the consequent resistance to this privatisation which led to the establishment of the Free Software Foundation (FSF) in 1985, and the political disagreements that led to the formation of the Open Source Initiative (OSI). I argue that at the heart of Free Software lies a principled philosophy of freedom and community building, discarded as “ideology” by OSI.

Stripped of FSF’s political origins, Open Source is hence best understood as an engineering methodology for a market-based economy.


Section 3.4 – The Free Software movement as a recursive public – discusses the main points of a recent study of Free Software and its cultural significance. Free Software is understood as a “recursive public” that is “vitally concerned” with the conditions of and possibilities for its own coming into being (Kelty 2008). While the Free Software movement remains a paradigmatic example of a recursive public, I argue that its recursive nature does not include the crucial recursive relation between the tangible and the intangible realm, as noted in Chapter 1. The Free Software commons remains ideologically and practically separated from the commons of the land and its material resources.


Section 3.5 – The GNU General Public License: copyright subversion and constitution – is an analysis of the software license that articulates the common values around which the Free Software community has emerged. The shared desire and need to cooperate on computer code has been condensed into “four freedoms” of Free Software. Using the framework developed in Chapter 2, I show how this license, the GPL, is an articulation of these common values in the form of sub-clauses to existing copyright, which ensures that once a piece of software code has been published under the GPL, it remains freely available for anyone to use for any purpose except enclosure. This self- articulated relational modality hence ensures reciprocity in perpetuity and uses copyright subversively to both constitute the software commons, and defend it against enclosure. The creation and maintenance of a commons within capitalist democracy necessitates an interfacing with its legal, political and economic dimensions. The example of Free Software shows that the articulation of property protocols on part of social movements and communities can make innovative use of trespassory protection provided by the overarching legal system through conventional property rights, in a way that undermines rather than strengthens the logic of capitalist private property. I also argue that the GPL acts as a constitution of the Free Software community.


Section 3.6 – Defending the GPL: a recursive public defends itself – reviews a small number of key legal proceedings which establish that the GPL is indeed sanctioned by copyright law. I show in this section how a self-defence mechanism has emerged spontaneously within the Free Software movement, complementing the protection that copyright affords. I maintain that the Free Software example provides an embryonic model for other voluntary associations to autonomously constitute and defend themselves against enclosure.

Finally, I conclude that solidarity between the real commons of the land and the virtual commons of cyberspace and a recognition of the interpenetration of the tangible and intangible realm, as well as an anti-capitalist vision of politics are necessary elements in a defence against the enclosure of cyberspace.

In the rest of the introduction I want to present some notes first on contemporary anti-capitalism, before turning to a social history of the perennial resistance to capitalism." (http://www.commoner.org.uk/N14/the-commoner-14-winter-2010-introduction.pdf)

Excerpts

Chapter by chapter availability at the Commoner:

Massimo De Angelis and J. Martin Pedersen - Preface / Volume 1 PDF

CHAPTER 0 — Introduction: Property, Commoning and the Politics of Free Software PDF

CHAPTER 1 — Free Culture in Context: Property and the Politics of Free Software PDF

CHAPTER 2 — Properties of Property: A Jurisprudential Analysis PDF

CHAPTER 3 — Free Software as Property PDF

CHAPTER 4 — Conclusion: Property and the Politics of Commoning (including bibliography of the entire essay) PDF


From the conclusion

J. Martin Pedersen:

"The concept of property is obviously central to the essay. Here is an excerpt from the conclusion that sheds some light on the position developed in the essay with respect to the relations between property and cyberspace, as well as land, its resources and the means of production:

Cyberspace is disembodied not only in the sense of being technologically mediated, or virtual, but also because it is continuously represented as if it were not highly dependent on the material realm for machines and minerals and energy. Understanding the dynamics of cyberspace in terms of property – the language of social relations with regard to things – is a good starting point for exploring the concept of property. It is a recursive process that generates a new understanding of property, which in turn might facilitate the emergence of further permutated relational modalities. If the world were a commons and property an open-ended toolbox for the self-articulation of value practices, then commons would probably blossom. Property seen through the lens of spontaneously emerging social relations – whether in cyberspace or landless movements in Brazil – opens the black box of property and reveals building blocks that can be recombined in very many ways. With an enriched understanding of property, private property might – in line with the anti-capitalist hopes that have animated this essay – be limited to (something like) personal possessions. Rights of commoning can then be substituted for private property in land, its resources, and the means of production and distribution (p. 290)." (http://commoning.wordpress.com/2010/12/31/from-the-conclusion-property-commoning-and-the-politics-of-free-software/)


Yochai Benkler's conception of a Capitalist Commons

J. Martin Pedersen:

""We have seen how Benkler's work contributes to an expansion of the economistic framework that enables it to better capture the dynamics of social production. These social relations he defines as outside the market and property, which he otherwise considers very important institutions:

“The rules of property are circumscribed and intended to elicit a particular datum— willingness and ability to pay for exclusive control over a resource. They constrain what one person or another can do with regard to a resource; that is, use it in some ways but not others, reveal or hide information with regard to it, and so forth. These constraints are necessary so that people must transact with each other through markets, rather than through force or social networks, but they do so at the expense of constraining action outside of the market to the extent that it depends on access to these resources” (Benkler 2006: 24).

Social production for Benkler, then, is the kind of social relations that are currently not captured within “the market”, as that institution is traditionally understood. Moreover, social production should not be subjected to the private property and contract mechanisms that define the market, because these mechanisms are considered unfit for the intangible realm of information. Instead the economistic framework – the language of marketeers, essentially – must be enlarged to be able to systematically capture the dynamics of social production, while, and this is the crux of the matter, private property and all the wealth concentrated on that basis remains unquestioned. In other words, the power amassed through the private property regime in the tangible realm is left untouched, but as an organisational mode is rejected from the realm of ideas; because the operation of existing powers in the tangible realm needs a free flowing virtual commons in order to continually have access to ideas, knowledge and information. The organisational mode of the tangible realm, however, remains. That is to say that Benkler is developing a framework with which to capture social production without destroying it. It is the construction of “capitalist commonism”, to use an oxymoron, that we see in the work of Benkler.

Capitalist commonism recognises that existing economic powers cannot sustain themselves without a minimal degree of commonalty in the intangible realm. In order for the operation of the industrial apparatus to sustain itself it must refrain from enclosing in a traditional sense the intangible realm, because it needs this realm of ideas to feed its increasingly information dependent, but heavy, physical machinery of electronic commodity production.

The dynamics of social production, however, are captured through incorporation in the economistic framework. That permits those institutions that organise themselves with such means – corporations, states and many NGOs and PGOs (Pseudo-Governmental Organisations) – to scientifically grasp those dynamics and thus extract the surplus value that arises from the excess capacity embodied in relations between citizens.

The excess capacity, as we saw, is capacity in excess of basic requirements, such as housing, food, time and skills. Housing and food are tangible matters, while skills are transmitted most often through tangible means in physical spaces, most of which is organised by means of private property and thus – largely – remain in the hands of the few. Excess capacity, then, by a small stretch of the imagination, can be understood as positive externalities that cannot be internalised on the basis of the usual mechanisms of enclosure, because these mechanisms would destroy the commons once and for all. By analogy, such enclosure is like overfishing: if you land all the fish they cannot reproduce themselves and you have nothing to fish for any more. The virtual commons must be defended, but ways to reap its positive externalities – the economic potential inherent in the pooling and extraction of its productive forces – are required for capital interest, confined to the tangible realm, to be able to carry on its expansionary movement. The information commons, therefore, becomes a capitalist commons and it is Benkler's great achievement that he has begun to establish a framework from within which tangible powers can extract wealth from the intangible realm without destroying that realm. From a capitalist perspective this is genius, because it resembles a sustainable fishing policy: we can keep fishing, but the fish will remain available. From an anti-capitalist perspective it is a domestication of the virtual commons and consequently a separation of the virtual commons from the real commons, conceptualised in terms that relies upon state power and in turn justifies state power.

It is similar concerns that have led to Tiziana Terranova (2000) to argue that in the phenomena that Benkler calls “social production” we rather see an emergence of “free labor” that offer new ways for capital to consolidate itself through extracting wealth from social relations hitherto external to direct market relations. Not only is it free labour, we may venture, but resistance-free labour. In her later work she sees Benkler's conceptualisation of social production as offering “liberal and neoliberal economics a refinement of its logic that does not significantly break with its overall political rationality” (Terranova 2009: 251-252). That reflects the argument I am making here.

In Benkler's presentation she finds that “[n]on-market production, in fact, is based in social cooperation, but it becomes economically effective, that is it achieves the status of an economic phenomenon” (2009: 252), because, as Benkler says “it increases the overall productivity in the sectors where it is effective ... and presents new sources of competition to incumbents that produce information goods for which there are now socially produced substitutes’ (Benkler 2006: 122). In the networked information economy “[s]ocial life and economic life would thus find a point of convergence where the former would no longer find its expression exclusively within the reproductive sphere of civil society but would become directly productive in the economic domain” (Terranova 2009: 251). It is this economistic perspective that domesticates social production - ties it to capital - and funnels the wealth created through these non-market relations back into capital. I am arguing in this essay for a social analysis of property relations for exactly the reason that Terranova criticises Benkler's account." (http://www.commoner.org.uk/N14/the-commoner-14-winter-2010-chapter1.pdf)


Critique of Free Software and Free Culture

Martin Pedersen:

"I develop a view on property that is inspired by the phenomenon of Free Software. It is paradoxical because the Free Software Foundation, the self-organised civil society institution and social movement that defines Free Software, does not see the concept of property as relevant for Free Software. They vehemently reject the idea. In that sense I am standing outside the movement, insofar as we understand the movement as the voice of its leaders. But why should we?

Although I argue against their rejection of property, the main purpose is not to advise the Free Software Foundation on matters of policy strategy and tactics, but to provide the wider global network of social movements working to (re-)create commons with a map and matrix of property that can be used to advance their causes and to grasp just how multi-faceted a concept property is. Understanding Free Software as property is a very useful starting point for transcending existing conceptions of property, because when understood as property, Free Software opens the door for radically different configurations of property. Importantly, Free Software is an example of a community articulating their own relational modalities and thus defining how they self-organise to make space for a realisation of their “needs, desires, aspirations, affects and relations” (De Angelis 2005a). While it is certainly an important victory for community based, self-legislation, it is perhaps even more importantly a crack in property where the light gets in: if we inscribe the relational modalities of Free Software upon the concept of property, then the concept is forever changed. In other words, its “framing effect” would be entirely different and informed debate become possible.

Above I used the term paradox to avoid any association with self-contradiction. It might be read as if I am contradicting myself, declaring allegiance with social movements, then turning around to conceptualise the dynamics of a social movement in terms that they reject. However, the contradiction is on their part.

The libertarian values that the Free Software and Free Culture movements exhibit are not liberties that were won in the struggle for virtual commons and the right to share digital information and cooperate on software projects. The freedoms upon which the Free Software commons rests – the liberties that make it possible for such a movement to act and organise – are liberties won by struggling women and men, who with their bodies fought for land and freedom. The habeas corpus in which virtual commoners find themselves is an outcome of a struggle that has been unfolding for almost a millennia. Arguably, the leadership of the Free Software and Free Culture movements are separating themselves from the real commons. The commons of the land and the commons of the means of production and distribution are the fundamental commons without which virtual commons are merely lambs for the profit slaughter." (http://www.commoner.org.uk/N14/the-commoner-14-winter-2010-chapter1.pdf)


Further Excerpts

  1. Property as a Social Relation‎
  2. Free Software as Property‎