= This new section covers mainly legal blocks and facilitators for cooperative, p2p and commons-oriented, sharing-based practices and solutions.

Introduction

Tommasso Fattori:

"We also need a more general recognition and a flexible system of legal protection for commoning activities and for the products of collective creativity: the state and institutions must take an active role in supporting commoning and to support the creation of new Commons.

This active role must translate into forms of Public - Common Partnership, where the institutions enable and empower the collective/social peer-creation of common value. Governments could also provide seed funding, incentives and grants for Commons and commoning, just as it currently provides research and development support and assistance to businesses and corporations.

The drafting of one of more Charters of Commons must offer a broad range of forms of protection, which would go for example from the definition of special statutes for the safeguarding of biodiversity or of traditional knowledge to laws defending the collective interests of digital communities. At the same time a series of legal tools aiming to keep the results of collective creation under the control of the collectivity which produced them have been built and invented by the commoners themselves, for example by altering the legal tools which were originally designed to protect private property, redirecting them towards the protection of Commons, as has been the case with GPL and CC licenses, the product of a transformation and a turning onto their head of the logic of laws governing copyright.

The legal recognition of the sphere of Commons must lead to a delegation of authority and power by the state to commons-based institutions. That is to say, the constitution of self-regulating commons-based institutions must be authorized, protected and legally recognised (starting with the recognition of those which already exist.), through which commoners can protect, produce and reproduce Commons and common value.

Current debates (and experiments) focus on Trusts, Foundations, For-Benefit Institutions etc. Commons Trusts are normally considered legal entities responsible for protecting shared assets, and which have a fiduciary duty to preserve natural and material commons - such as natural systems, water, air, land, and biodiversity - and to protect, regenerate or create social, cultural, digital and intellectual Commons, such as Wikipedia and the Internet itself. Such trusts can be located either inside the boundaries of one state or be trans-border, according to the size and range of the resource and/or of its relative community of interest. Finally, it is probably not sufficient to stop at meta-institutions designed to preserve and protect the common destiny of a Commons over time and prevent its alienation. Just as it is true that commoning normally produces use value which cannot be accounted for in monetary terms (values which are part of the range of positive social or environmental externalities) one should construct a special legal form which could recognise and protect a similar type of enterprise or “project” (a common social enterprise) and protect a similar form of production of use value of collective use, which will help build another type of economy."

Key Initiatives

Worthy of Support:

• "The Commons Law Project is an ecological governance initiative that Professor Weston and I are pursuing in cooperation with The University of Iowa Center for Human Rights (UICHR) and the Vermont Law School Environmental Law Center (VLS-ELC). Rights-based and commons driven, the Project seeks to recover and refurbish the law of the commons from Roman times, the Magna Carta, and points before and since to put forward a new contemporary law of the ecological commons grounded in human rights.

• The Sustainable Economies Law Center from Janelle Orsi seeks to diminish legal constraints on human cooperation and sharing. See: Janelle Orsi on Legal Challenges to Collaborative Consumption and Sharing

• The Constituent Assembly of the Commons in Italy

• The Sharelex group of sharing lawyers in Europe

Please read:

• Sharing Companies Should Be Cooperative T-Corporations

Hot Projects

1. Common Accord: potentially enabling Smart Contracts
2. Ethereum: potentially enabling Decentralized Autonomous Organizations
3. Swarm: crypto-equity investing

Key Topics

Technology and the Law

• Article: A Legal Framework For Crypto-Ledger Transactions‎‎

From Primavera De Filippi on Integration of Law and Computer Technology:

"The marriage of law and technology in the late 20th and early 21st century can be divided into three phases.

Phase one involved digitizing information itself: taking paper and ink and storing as computer readable information. That phase is well under way: copies of cases, statutes, and regulations have been available on-line for decades in large databases, accessible at first for a fee, and now mostly for free. Yet, there is a big difference between digitized information (that can be stored and displayed on a computer) and semantically meaningful information (that can be also processed and understood by a computer).

Phase two has involved automating decision-making. Much legal informatics research to date has focused on transforming legal provisions into computer code. This is a hard project for many reasons, including the ambiguity of the human language and the need for legal norms to be flexible and fact dependent. Despite these challenges (and limitations) government institutions and businesses worldwide increasingly rely on rule-based representations of specific knowledge domains - such as health care, tax and financial regulations - for automated decision-making (see e.g. specific tools for taxation, accounting and credit-score assessment).

Phase three - which is just beginning - involves self-enforcing smart contracts. We are moving quickly towards a system where technology will not only aid in decision-making but will also be employed to enforce rules. A notable example can be found in Digital Rights Management systems which incorporate the provisions of copyright law into technological measures of protection. But technology can also implement its own technical rules, which do not reflect any underlying legal rule. In order to be legally enforceable, these rules need to be wrapped-up into a legal framework capable of making smart contracts actionable under the law. A lot of work has yet to be done in that area." ([1])

Facilitating Sharing and Cooperation through the Law

• Is Bottom-Up Lawmaking Possible and Desirable?

1. Shareable Magazine's 20-part series on policies that foster resource sharing, co-production, and mutual aid in cities: http://www.shareable.net/blog/policies-for-a-shareable-city
2. Crowdfunding and the Law. Janelle Orsi, SELC
3. How the Law Is Used To Stifle the Sharing Economy. Chris Laroche.
4. Legal Issues Raised by the Sharing Economy

The Law and the Commons

• Tommaso Fattori, proposals for Commons and politics/policy:

1. Towards a Legal Framework for the Commons
2. The Public - Commons Partnership and the Commonification of that which is Public‎‎

• On the importance of Social Charters: "Several legal frameworks exist for the protection of commons, including public domain law, public trust, human rights, and international treaties and conventions. However, these legal frameworks pertain mainly to the provision and allocation of public goods, thus requiring sovereign approval and oversight. Social charters stem from the tradition of customary or natural law, which means that they are created by the users and producers of a commons and are not dependent upon state consent." [2]

See also:

1. Commons Law
2. Concept of the Common Heritage of Mankind in International Law
3. Global Legal Commons
4. Law of the Commons
5. Legal Commons and Social Commons
6. Legal Form of the Commons
7. Open Law
8. Open Source Law

Legal Facilitation for Open Hardware and Production

1. Open Source Licensing as a Legal and Economic Modality for the Dissemination of Renewable Energy
2. Opening Hardware through Legal Tools ; Recommended Open Hardware Licenses

Personhood of Corporations

1. How Corporations Became People ; John Bonifaz on Revoking Corporate Personhood
2. Outlawing the For-Profit Corporate Form (via the Program on Corporations, Law and Democracy of the late Richard Grossman)
3. Using Corporate Governance Law to Benefit All Stakeholders

Background reading:

• The Divine Right of Capital: Dethroning the Corporate Aristocracy. By Marjorie Kelly. Berrett-Koehler, 2001.

New Commons-Friendly Enterprise Formats

1. Open Companies
2. Open Company Legal Research Group
3. Intro to For-Benefit Corporations‎ and other Fourth Sector Organizations

See our special section on Open Company Formats !

Protecting Indigenous / Traditional Knowledge

1. Bioculture vs Biopiracy: Alternative Approaches for Protecting Indigenous Traditional Knowledge
2. Imagining a Traditional Knowledge Commons ; Implementing a Traditional Knowledge Commons
3. Patenting Traditional Knowledge ; Protecting Community Traditional Knowledge Rights
4. Traditional Knowledge ; Traditional Knowledge Commons ; Traditional Knowledge Commons License ; Traditional Knowledge Digital Library

Key Resources

Key Articles

• The Life of the Law Online by David R. Johnson First Monday, Volume 11, Number 2 - 6 February 2006 (recommended by David Bollier)
• Massimo De Angelis: Commons Rights Are Not Legal Rights
• Legal basics for designers

In other languages

• Beni comuni. Contributo per una teoria giuridica, 2015 Paru dans Costituzionalismo.it http://www.costituzionalismo.it/articoli/492/

Key Audio/Video

1. Greg Lastowka on Virtual Justice and the New Laws of Online Worlds

Key Books

1. Greg Lastowka. Virtual Justice: The New Laws of Online Worlds.
   • U.S.A. focus: Practicing Law in the Sharing Economy: Helping People Build Cooperatives, Social Enterprise, and Local Sustainable Economies. Janelle Orsi. SELC, 2012

Key Courses

• Digital Citizens Basics, an online course on digital rights and duties, proposed by Marco Fioretti [3]

Key People

1. David Bollier, Commons Law Project
2. Carolina Botero, Colombia
3. Eben Moglen, the Free Software Foundation legal counsel
4. Janelle Orsi, Sustainable Economies Law Center