[p2p-research] The criminalization of using the commons

Paul D. Fernhout pdfernhout at kurtz-fernhout.com
Wed Aug 26 18:09:57 CEST 2009

Nathan Cravens wrote:
> I hope we make a variety of contacts to nurture during and after this
> workshop to plan for the week long conference to come; which will discuss
> what areas our developer network has created and used in practice: how areas
> were integrated with the projects (and related networks) presented at the
> workshop and the variety of others areas to secure these various
> developments.
> For those not immersed in this topic area for years as many of us have, it
> will be easy to get lost, and I suspect much of what is said will be
> difficult to translate in such a short amount of time. So long as we keep
> the interest in our neighbor's projects before and after the workshop and
> conferences to come, we'll no doubt make lots of mistakes and
> misinterpretations, but since I can already see clearly enough the outcome
> of these events from the personal discussions and from the talks at p2p
> research and the open manufacturing community, I believe we'll make it just
> fine.
> I would be overly optimistic were it not for my recent run-in with the
> authorities at the university campus (known as Stephen F. Austin State
> University) I befriended this past year or to do out-of-enrollment study.
> This activity has finally caught up with me, as I was given a criminal
> trespass warning for occupying the music building, enjoying the gifts of its
> air conditioning and wifi. I was accused of "setting up residence" and
> "lying about being a student" because as I was told 'I know what being a
> student means' after occupying that space on the second night, from the
> officer's perspective and that officer and sargent's consensus view. After
> asking, I was told even if I were a student, I would be asked to leave that
> space at night. (Although I doubt that would have been true in practice) So
> now I'm unable to enter this campus without proving my case for the chief of
> police to revoke my occupational impermissibility. I've had chats with the
> philosophers at the university when I first arrived, with some
> disappointment as they seem or act too busy to discuss anything, and I got
> to know a librarian rather well. . . So I'll ask if these folk can help me
> at all.
> I'm open to going elsewhere that might better appreciate what I'm doing. I'd
> imagine that its probably a struggle enough caring for yourselves. . .
> Just when I've become comfortable being perceived as scum in this world. . .
> someone with a badge decided to act on it. . .
> I apologize for not appropriately separating my personal experiences from
> creating an integrated collaborative platform. I only hope such a personal
> story can relate to your own similar incidents and further express the
> drives that fuel our works.

Interesting story. Often we need anecdotes to work from, to ground our 
speculations in realities.

It seems to me that another word for "privatization" is essentially 

There a song I heard once on NPR on "Grandpa" Lewis' show
that went something like:
Every one's a criminal, unless you got the money, honey.
Every one's a criminal and how.
Someone owns the land, someone owns the oil.
Someone own the air, and someone owns the soil.
Someone owns the food, someone owns the sea,
someone owns my body but they can't own me.

Or something like that. :-)

I feel we are reaching the point, especially with robotics and better design 
like in Marshall Brain's "Manna", where for *everyone* an essential issue is 
a human right to access the commons (biological commons, industrial commons, 
intellectual commons). So, a "basic income" would be part of that, but it 
might go much farther. But often money-politics policy goes the other way, 
and has since the first corporations came to the Americas with Christopher 
Columbus. So we get more privatization and longer copyrights.

The health care debate in the USA is just the tip of the "basic income" 
iceberg about a right to the fruits of the commons, IMHO.

The alternative to more human rights is this sort of frightening stuff:
   "Is It Now a Crime to Be Poor?" By BARBARA EHRENREICH
Mentioned at:
It's too bad so many people are falling into poverty at a time when it’s 
almost illegal to be poor. You won’t be arrested for shopping in a Dollar 
Store, but if you are truly, deeply, in-the-streets poor, you’re well 
advised not to engage in any of the biological necessities of life — like 
sitting, sleeping, lying down or loitering. City officials boast that there 
is nothing discriminatory about the ordinances that afflict the destitute, 
most of which go back to the dawn of gentrification in the ’80s and ’90s. 
“If you’re lying on a sidewalk, whether you’re homeless or a millionaire, 
you’re in violation of the ordinance,” a city attorney in St. Petersburg, 
Fla., said in June, echoing Anatole France’s immortal observation that “the 
law, in its majestic equality, forbids the rich as well as the poor to sleep 
under bridges.”
   In defiance of all reason and compassion, the criminalization of poverty 
has actually been intensifying as the recession generates ever more poverty. 
So concludes a new study from the National Law Center on Homelessness and 
Poverty, which found that the number of ordinances against the publicly poor 
has been rising since 2006, along with ticketing and arrests for more 
“neutral” infractions like jaywalking, littering or carrying an open 
container of alcohol. ...
   The viciousness of the official animus toward the indigent can be 
breathtaking. A few years ago, a group called Food Not Bombs started handing 
out free vegan food to hungry people in public parks around the nation. A 
number of cities, led by Las Vegas, passed ordinances forbidding the sharing 
of food with the indigent in public places, and several members of the group 
were arrested. A federal judge just overturned the anti-sharing law in 
Orlando, Fla., but the city is appealing. And now Middletown, Conn., is 
cracking down on food sharing. ...
  Meanwhile, the public housing that remains has become ever more 
prisonlike, with residents subjected to drug testing and random police 
sweeps. The safety net, or what’s left of it, has been transformed into a 
   Some of the community organizers I’ve talked to around the country think 
they know why “zero tolerance” policing has ratcheted up since the recession 
began. Leonardo Vilchis of the Union de Vecinos, a community organization in 
Los Angeles, suspects that “poor people have become a source of revenue” for 
recession-starved cities, and that the police can always find a violation 
leading to a fine. If so, this is a singularly demented fund-raising 
strategy. At a Congressional hearing in June, the president of the National 
Association of Criminal Defense Lawyers testified about the pervasive 
“overcriminalization of crimes that are not a risk to public safety,” like 
sleeping in a cardboard box or jumping turnstiles, which leads to 
expensively clogged courts and prisons. ...

So, your personal experience is perhaps part of this larger trend. 
Universities see the poor that their scarcity ideology have helped create, 
and they are scared of the scarcity they have ironically manufactured using 
the technologies of abundance, so they are cracking down on everyone. Thus 
they are only compounding the problem and the irony.

But, frankly, there is a limit to compassion (compassion fatigue); it's 
understandable. It is also fair to question the interest of middle class 
people or above (even anyone college educated, but certainly Ivy League) in 
wanting to help the poor -- what does it mean to have compassion in an 
abstract way? But what everyone should relate to, even millionaires, is, it 
could happen to them very quickly in the USA. Look at Madoff's victims. Or 
the stock market crash. Or medical insurance companies not paying claims for 
various reasons. Health is wealth more than wealth is wealth. And so on...
  "If you have come to help me you are wasting your time. If you have come 
because your liberation is bound up with mine, then let us work together."
— Aboriginal Activsts' Group (of which Lila Watson was a member), 
Queensland, 1970s

Richard Stallman would have had a tougher time now, given he lived in the AI 
lab for a time:
"Stallman has devoted the bulk of his life’s energies to political and 
software activism.[59] Professing to care little for material wealth, he 
explains that "I've always lived cheaply … like a student, basically. And I 
like that, because it means that money is not telling me what to do."

I wish I had learned that lesson even earlier, that frugality gives you options.

I remember that for a couple of days between apartments, when I was around 
20 and hanging out at CMU after graduating from Princeton (so, not a 
student, not a staff, just a visitor for maybe nine months with no formal 
affiliation, and two professors had given me keys to their labs and various 
computer accounts), I slept one night underneath a table besides a Perq computer
in the defunct household robotics lab (the warm air counteracted the air 
conditioning), and another night in a lounge by the mobile robot lab. :-) I 
guess I could have asked someone to put me up or stayed in a hotel, but it 
did not really occur to me. Guess I should be glad I was not hassled like 
you. But, times have changed.

I guess, to look on the bright side, be glad you were not tazed: :-(
   Graphically brutal video:
   "UCLA Police Taser Student in Powell Library"

I remember watching a sci-fi movie as a kid (Genesis II) where a major way 
the evil mutants control a human population of slaves is with "Stims" which 
can be dialed to dispense on contact different levels of pleasure or pain.

By the way, from:
   "Genesis II"
"Members of a benevolent group of scientists, known as PAX, excavated the 
NASA research center and rescued Dylan Hunt, who had only aged one day for 
every 10 years in suspension. Dylan Hunt was aided in his recovery by a 
human mutant named Lyra-a. Lyra-a deceived Dylan Hunt over the purpose of 
PAX, and convinced him to travel with her to her city, Tyrania, in the hope 
that he could repair their failing nuclear reactor. During his visit to 
Tyrania, Dylan discovers that he has been deceived by Lyra-a, and that the 
city condones brutal slavery. Working with a PAX team which had infiltrated 
the city, Dylan Hunt leads a successful revolt of the slaves. During their 
escape from the city, Dylan Hunt and the PAX team are captured by Lyra-a and 
company. Dylan makes a deal with Lyra-a stating that he would repair the 
nuclear reactor if the PAX team could go free. Dylan Hunt discovers that the 
Tyranians are planning on using the reactor to power a nuclear missile silo, 
so that they can destroy PAX. Dylan sabotaged the silo and caused the bomb 
to detonate, thus eliminating the threat to PAX. At his return, Primus 
Kimbridge, leader of PAX, confronts Dylan Hunt with PAX's pacifist beliefs 
and challenges Dylan Hunt to join them."

As a kid, seeing that movie, I thought Primus was a dope and Dylan was right 
to blow up the reactor, even though he answered an enthusiastic yes to 
Primus' question of "Did you take lives?" But now I see that deeper irony of 
a technology of abundance used in an ironic scarcity-promoting way, and 
Primus' concern that Dylan was just repeating the mistakes of the past.

Anyway, so sci-fi tazers are now are part of criminalizing using the commons.

One essential point of your tale in that it was on a "state" university, 
which presumably is open to all. A private university might have more 
grounds for restricting access, even though that might be hogwash because 
private universities are generally tax-exempt and get lots of charitable 
donations, and so too are being fed from the public commons.

I saw the closing down of the Princeton University library from the 
university building a big barrier across the lobby and putting in guards in 
th 1980s -- prior to that, anyone could walk in an use the main library. One 
security officer told me a major benefit to him was preventing "vagrants" 
from sleeping in the library stacks, that was part of the private 
off-the-record campaign to get students not to object to what was happening 
before their eyes.

As another related anecdote, I remember when a Princeton administrator was 
looking for an office for me when I went there to run a robot lab, and he 
opened one door and found a mattress and a recently ex-student. :-) The 
administrator looked like he had just found a nest of rats or roaches. :-)

Anyway, it's been said new ideas need cheap rent. :-)

It's generally traumatic to have to deal with security forces of any sort. 
Here is a related idea:
"Ego depletion refers to the idea that self-control or willpower is an 
exhaustible resource that can be used up. When that energy is low (rather 
than high), mental activity that requires self-control is impaired. In other 
words, using one's self-control impairs the ability to control one's self 
later on. In this sense, the idea of (limited) willpower is correct. In an 
illustrative experiment on ego depletion, participants who controlled 
themselves by trying not to laugh while watching a comedian did worse on a 
later task that required self-control compared to participants who did not 
have to control their laughter while watching the video. Much of the early 
research on ego depletion was performed by Roy Baumeister, Mark Muraven, and 
their colleagues. In a recent series of studies, they suggest that a 
positive mood stimulus could help restore the depleted energy. They report 
on four studies where the positive mood stimulus was a surprise gift or 
short clips of stand-up comedy by Robin Williams and Eddie Murphy. They do 
not claim a general benefit in positive affect, i.e, benefit to people who 
had not previously engaged in self-regulatory tasks, rather the positive 
stimulus restores the capacity to self-regulate. The work is experimental 
and does not consider in depth the mechanisms by which performance is 
restored, whether it is because of an actual restoration of self-regulatory 
resources or provides an additional motivation to press on with a depleted 
self remains an open question"

So, doing something fun might help in getting past that high degree of 
self-regulation demanded by those interactions with security and avoiding 
setting off tazer-happy campus police. You can take some pride in how well 
you handled it to avoid that. It is easy to loose your cool in some situations.

Again in the 1980s, I still remember how traumatized I felt when I was 
looking at an apartment complex in North Carolina, and, after looking at a 
couple of apartments, with the permission of the person running the office, 
I walked around and casually asked a couple people there if they liked it 
because I was thinking of renting an apartment there. As I was walking back 
to the office thinking of signing a lease, this (private) security guy drove 
up (who had not known any context) and said he had got a complaint about me 
talking to people and it was private property and I could not talk to 
residents. I went back to the main office and pointed that out to that 
person who was apologetic and spun it as how it showed how concerned the 
residents were concerned about the place. I decided not to live there. And I 
was shaky for some time afterwards.

So, I can imagine your feelings on this must be a lot stronger.

The problem is, once the bureaucratic machinery starts grinding, it can be 
hard to make it stop -- especially in schools which are essentially 
prettified prisons. That bureaucracy has now labeled and numbered and 
categorized you.  As Gatto says:
"Our problem in understanding forced schooling stems from an inconvenient 
fact: that the wrong it does from a human perspective is right from a 
systems perspective. You can see this in the case of six-year-old Bianca, 
who came to my attention because an assistant principal screamed at her in 
front of an assembly, "BIANCA, YOU ANIMAL, SHUT UP!" Like the wail of a 
banshee, this sang the school doom of Bianca. Even though her body continued 
to shuffle around, the voodoo had poisoned her. ... I picture this animal 
Bianca grown large and mean, the same Bianca who didn’t go to school for a 
month after her little friends took to whispering, "Bianca is an animal, 
Bianca is an animal," while Bianca, only seconds earlier a human being like 
themselves, sat choking back tears, struggling her way through a reading 
selection by guessing what the words meant."

So, the university has started using its voodoo against you. :-( That's 
strong stuff. It is hard to deal with such dangerous magic. What are the 
arts of this voodoo? How does in work? Are there counter-magics? And so on?

Sometimes, despite my youthful follies, I can wonder if the only reason I 
graduated Princeton is because a security officer, her first year on the 
force, essentially ran me over my first summer there when I was on my 
bicycle and put me in the hospital (twenty one emergency stitches and a 
broken pinky)? :-) Well, it was an ambiguous situation -- she would have run 
me over but I slowed and swerved to avoid her and hit the side of the 
security car. That car was emerging at high speed from behind a gymnasium 
building near the intersection (so we could not see each other) and then 
speeding through a pedestrian intersection just yards from where I lived, 
and I was foolishly racing to avoid a thunderstorm -- a friend had offered 
me a ride which I had declined. To be fair, I really should have stopped and 
walked my bicycle through the intersection but I was going fast to avoid the 
rain -- and that crossing road was rarely travelled by cars at any speed. 
But in the security department's eyes, hitting the side of their car made it 
my fault, even if I might have been dead otherwise. I was actually surprised 
how much damage little old me did to that car with just my body. :-) 
Fortunately, my backpack absorbed some of the impact. Anyway, was my PU 
degree really in recognition of not suing (or not even really thinking about 
suing)? :-) So, there can be weird internal dynamics in various systems. :-) 
Anyway, that is another case where Aikido training in merging with a power 
and knowing how to roll may have saved my life. :-)

So, to elaborate on what those security people did not say, now you do know 
what "being a student means" as opposed to what "being a citizen on a 
publicly-supported commons means" or "being a human being" means. :-( Again, 
John Taylor Gatto on this:
"Before you can reach a point of effectiveness in defending your own 
children or your principles against the assault of blind social machinery, 
you have to stop conspiring against yourself by attempting to negotiate with 
a set of abstract principles and rules which, by its nature, cannot respond. 
Under all its disguises, that is what institutional schooling is, an 
abstraction which has escaped its handlers.  Nobody can reform it. First you 
have to realize that human values are the stuff of madness to a system; in 
systems-logic the schools we have are already the schools the system needs; 
the only way they could be much improved is to have kids eat, sleep, live, 
and die there."

Well, that may not apply exactly, :-) but it seemed appropriate anyway. :-) 
But really, is that not the issue? The university wants more money -- it 
wants to sell you a pass to go there where you pay "tuition"; like a hotel 
it wants to rent you a room too. The harassment you are experiencing is the 
flip side of that business model. Also, because the university system has 
helped create such a crazy country with no help for the poorest and with too 
much stress for everyone else, and now the bubble economy is bursting, and 
even more bailouts went to the wealthy on scarcity-economics theoretical 
grounds, the university is turning defensive as the system it creates 
collapses around it. And so, you and get caught up in that, as do we all in 
various ways. If we build a society that does not take better care of its 
poor and people with various problems, then it will probably spend more on 
security instead, which is what the deepest irony is. In the same way, the 
US health insurance industry costs one third of every health insurance 
dollar to prevent people from getting care when that money would ensure 
everyone could be cared for. Ironic social idiocy from that perspective.

"Enclosure or inclosure is the process by which common land is taken into 
fully private ownership and use. Common land is land which is owned by one 
person, but over which other people have certain traditional rights, such as 
arable farming, mowing meadows for hay, or grazing livestock. Under 
enclosure, such land is fenced (enclosed) and deeded or entitled to one or 
more private owners, who then enjoy the possession and fruits of the land to 
the exclusion of all others."

Now, imagine life as a Native American in the USA. Everywhere is the land 
your ancestors walked for thousands of years. But now, suddenly, you are a 
criminal if you walk on it, because corporations like the Hudson Bay 
Corporation privatized it.
"The Hudson's Bay Company (French: Compagnie de la Baie d'Hudson), 
abbreviated HBC, is the oldest commercial corporation in North America and 
is one of the oldest in the world. The company was incorporated by British 
royal charter in 1670 as The Governor and Company of Adventurers of England 
trading into Hudson's Bay; it is now domiciled in Canada and has adopted the 
more common shorter name as its legal moniker.[1] It was once the de facto 
government in parts of North America before European-based colonies and 
nation states existed. It was at one time the largest landowner in the 
world, with Rupert's Land being a large part of North America."

Just to show my hypocrisy, :-) we do have our rural land posted for 
trespass, mainly because we live next door to a hunting club (they seem to 
ignore the signs anyway), as well as for crazy liability issues in the USA 
including by having dogs, as well as for privacy in the face of a community 
that gets some summer party-goers. But were our community different, I don't 
think we'd feel the same -- especially if there was a network of public 
walking trails or something like that, like in England. In that case, I 
would be getting something of immense value by cooperating, rather than just 
suffering a penalty by not defecting. As it is, we have informal agreements 
with neighbors to walk on each others land (so, a peer solution in part). 
It's hard to live in a culture and not become part of it and its problems in 
various ways. That sort of decision is ofter repeated with patents and 
copyrights owned by individuals, for similar reasons -- though there are 
difference of course in digital resources from physical resources.

Of course, our house and land does not claim to be a public institution. 
Still, we do benefit from the public internet and lots of public 
innovations, so even the nature of what is legitimately "private" property 
changes as we all rely more on various commonses. In general, all these 
notions of property are socially constructed:
   "The Mythology of Wealth"
The question ultimately is, what sort of society do we want to construct?

My advice for you? The same I got at PU grad school after going back and 
having a bad time, and which I did not follow myself. :-) Go to law school. 
:-) Here is a good one to enroll in:
   "Center for the Study of the Public Domain" at Duke University.

No doubt with your writing ability and interest in open manufacturing, you 
might do well there. With a law degree, you would not be quite as vulnerable 
to the machinery of bureaucracy, especially as part of a larger team.

By the way, just as an aside, if you don't go to law school, it is easier to 
be a hunter/gatherer in warm equatorial climates, because the need for 
shelter is mimimal, and the abundance of food per acre is generally higher. 
That's a reason why you don't see tent cities in the cold US Northeast:
   "Tent cities spring up in LA"
A warm sunny mild climate like mid-California on the coast (so, good fishing 
and sea gathering) is ideal perhaps. Although most of that land has long 
been privatized. Even the "Walking People" book has a story of being kicked 
out of there thousands of years ago by a tribe who had gotten there first. :-)

It is my conjecture that militaristic bureaucracies arose from human 
guarding highly productive marine estuaries that otherwise gave an easy life.
And then, at some point, those pre-scarcity bureaucracies became, in Gatto's 
words, "an abstraction that escaped its handlers". Well, lawyers in theory 
are one way to reign in abstractions. :-) Or is that rain in abstractions? 
Or is that even reign as in rule in abstractions? :-)

As someone recently told me, essentially it is hard to make the big bucks 
(e.g. 'Neutron Jack" Welch) unless you are indifferent to causing various 
kinds of suffering. (That is less true sometimes in the tech sector.) And 
from Chomsky, one can see that is can be very hard to function (or rise) in 
a system unless you internalize its values.
You really have to function at a very high level of abstraction to attempt 
that (working in two paradigms at once -- akin to living in a foreign 
country and translating everything), and you are at continual risk of 
quagmire (many foreigners to a land make all sorts of mistakes). But lawyers 
do that, working in abstractions. But it can be hard to try to live in two 
worlds at once. Even working at a university poses all sorts of moral 
problems, given university policies (like you reference), and even more:

Frankly, for that reason, if my wife was not both so smart and so generous, 
I'd probably be homeless at this point. :-)  Sure, I had my chances to be 
financially obese, but I chose to do differently.  Although that's a little 
maudlin -- if I was not married, with a kid, and a house, and so on, right 
now I'd probably try to work at "Willow Garage" on FOSS robotics because it 
is open and would be fun. Or I might do some small local thing like work in 
a health food store (again :-) or other "honest business" I could find and 
live in some tiny apartment and spend more time at the library:
   "Honest Business"
Or maybe other non-profit:

My biggest constraint has been creating the time to develop ideas but still 
being a responsible parent (in a society that provides little help for 
parents except you put your kid in day-prison). If I was just focused on 
survival and a personal happy life, these little niches mentioned above 
would promise more surety of that, as well as likely either be working 
directly on FOSS things or having free time to do that.

Again, if I was in my twenties, law school in the area of FOSS licensing 
would be interesting -- assuming it could be done without taking on too much 
debt, since when one has a lot of debt, it forecloses options, especially 
working at non-profit things or living at a subsistence level. And going to 
law school on FOSS issues is a step towards resisting the criminalization of 
using the commons. No pressure. :-)

But in general, trying to have one foot in a post-scarcity future (a heavily 
regulated and highly taxed market, a huge commons, and lots of local 
subsistence production, minimizing war/schooling/prison) is pretty hard when 
you also need to keep one foot in the present which has different values 
(often opposite ones, since it my be privately profitable to enclose public 
commons). It's not easy. I'm sure most everyone on this list wrestles with 
these things. Here is a book about that:
  "The Murdering of My Years: Artists and Activists Making Ends Meet "
"The title of Soft Skull's latest Soft Skill book is taken from Charles 
Bukowski, who said of wage labor: "I couldn't understand the murdering of my 
years." A struggling activist/artist, Z. found that he was too short on time 
and money to write an activist's memoir and how-to. Instead, he e-mailed a 
questionnaire (printed at the end of the book), asking fellow activists and 
artists how they managed to be active yet survive economically. Each of the 
sections of the book is created from the responses to a particular question, 
but one gets the feeling that many activists and artists are quite private 
about their survival techniques. A.D. Nauman, for one, provides concrete 
ideas for writers looking for relatively painless work within the 
mainstream, and for artists who are also mothers, but the section entitled 
"The Dark Side: Illegal Jobs" is not nearly as juicy as one might hope. The 
e-mail format creates a tone that is entertaining, conversational and 
immediate, but also often prolix. Yet for anyone looking for some human 
company in the long struggle to make a living outside of the corporate 
structure, this book provides grassroots moral support."

I have not read that book myself though, but just knowing it exists is 
comforting. :-) But I have read "Gig" and "Working" which, minus the 
activism, probably have some similarity.

Hey, it is in Google books as a preview:
   "The murdering of my years: artists & activists making ends meet"

Of course that book sounds focused on "making a living" in an economic 
sense. Open Manufacturing and such (which really has roots in various 
themes) is about making a living in the subsistence local sense including 
drawing from (and contributing to) a peer commons. And just surviving does 
little directly about the criminalization of the commons, although having 
spare time makes such activities possible as an activist.

Anyway, if it is a given the system is making activists for the commons into 
criminals, than it would help if some of them were lawyers. Mahatma Gandhi 
was a lawyer; he accomplished a lot. :-)

All the best.

--Paul Fernhout
P.S. My treadmill has finally been fixed (more or less) and I walked 1.82 
miles while writing this. :-)

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