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The Commons Doesn't Have a Business Plan
Pages: 1, 2

Fencing off the commons has proceeded along several lines, which have been reported in the press but scarcely considered by the wider public.

  • The Supreme Court ruling on June 27 earlier this year that allowed movie and music studios to sue the makers of file-sharing software is a minor step in the slow devaluation of the commons. The ruling creates new tools making it easier for someone with a business plan to trample down the commons when it conflicts with the business plan. Innovators, including those with no resources for court challenges, must worry that they may be sued for the results of experiments they offer to the community. The ruling therefore endorses the past at the expense of the potential.
  • Extensions of copyright to periods of time way past the current historical era are violations of the commons and are directly contrary to the tradition Adam Smith recognized. The most recent extension by the U.S. Congress keeps works under copyright until 70 years after the author's death. In upholding the law, the courts pointed out that the law adheres to the international Berne Convention--which simply spreads the shame more widely.
  • Restrictions on people making their own copies of material they've bought, or experiencing it outside of particular times and places, are violations of the commons. But movie and music makers routinely put such limits on downloaded material, in a losing battle against unauthorized sharing. A whole field of computing has grown up around digital rights management, which keeps people from making full use of copyrighted material.
  • Invocations of trademarks or trade secrets to squelch free speech are violations of the commons. One blatant example is a claim by Cisco, just reported, that they are "protecting [their] intellectual property" as they invoke legal measures to suppress public debate about a serious security flaw they've left unrepaired in their routers.
  • Explicit censorship is a violation of the commons. China is the focus of current news about censorship, but it goes on in many places and distorts the entire environment for information sharing.

The fencing off of the commons has divided industries, with different sides taken by different creative artists, software makers, publishers, and others.

But the biggest worry of movie and music studios, along with software companies, newspapers, and many publishers, is another threat: that the commons will swallow up everything else. Specifically, they claim that consumers will seek to get everything for free, and thus undermine their own self-interest by shredding the incentives for artists and programmers to create new, independent works of value.

This threat is not quite as tragic as the content vendors make it out to be, because payment regimes for art and information have changed drastically at many turning points over the centuries. The simple model whereby each individual pays for a copy or a performance has worked for many artists, but not all. Changes brought about by digital technology will create new winners and losers.

The early radio broadcasters were nonprofits: in other words, radio started out as part of the commons. Under the pressures of corporations and the Federal Communications Commission, radio quickly developed a business plan. Interestingly enough, however, broadcasts remained free of charge. Advertising support replaced the pay-per-copy or pay-per-performance model. In addition, due to the basic physics of radio--each station can cover only a limited geographical area--a show can be recorded and syndicated for more income. Still, it's hard to grasp now that for many years the three U.S. television networks carried on a 1950s-style hysteria campaign against proposals for "pay TV." We now suffer a broadcasting regime that is not free enough--one that may stifle innovations such as podcasting.

In passing, it's worth noting that traditional notions about pay-per-use are making it hard to get medicines to AIDS patients and other desperately sick people in developing nations. WTO and U.S. rules, in trying to ensure that individual companies bear the rewards for developing drugs, end up depriving millions of people of medical care while contributing hardly anything to company profits.

New media, which will probably use digital networks and be more interactive, will present new payment opportunities. They may well build on the open source movement. We should celebrate the existence of open source, and defend the commons in every area of innovation as our guarantee of innovation.

Andy Oram is an editor for O'Reilly Media, specializing in Linux and free software books, and a member of Computer Professionals for Social Responsibility. His web site is

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