TCLP 2011-01-19 Rant: Tragedy of the Pseudocommons

This is a feature cast, an episode of The Command Line Podcast.

I’ll be at Wiki X DC this Saturday (which may or may not interfere with getting a news cast out on Sunday).  If you can spare some cash, Podiobooks could really use the support to upgrade their servers right now.

Listener feedback is from Jonathan in response to my piece about being an autodidact.  He recommends a couple of videos and David Brin’s blog.

The hacker word of the week this week is fisking.

The feature this week is a somewhat rambling, speculative rant on the tragedy of the pseudocommons. This stems from a lot of recent attention on commons as economic and governance models, including the Nobel prize winning work of Elinor Ostrom and David E. Williams. The title is in fact a riff on Hardin’s original critique of the commons. In discussing the ethos animating digital commons, I suggest the Free Software Foundation exceeds the core values by insisting on stronger notions of liberty. James Boyle’s book does an excellent job describing the more obvious threat of enclosure. My pondering the pseudocommons is similar in some regards to my thoughts on the true burden of forking. Nicholas Carr pegs one extreme example of the form.


View the detailed show notes online. You can grab the flac encoded audio from the Internet Archive.

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11 Replies to “TCLP 2011-01-19 Rant: Tragedy of the Pseudocommons”

  1. You have elucidated the concept of anomie ( . Where a state of limited order exists but one where abuse, mis-use, and outright banditry is still very common. You go to great pains to point to lawful developments but you still fall well short of offering some suggestion of enforcement.

    The pseudo-commons as it stands now seems to only have a small number of people, relative to the entire online population who actually make large use of the commons: prominent bloggers, software developers, corporations, niche groups etc. The only social strength in the commons comes from either prestige or the numbers of voice.

    Most people, like myself really, do not have enough at stake inside the cultural commons. Sure we share a great deal, but we might spread this over a large number of sites or not contribute with any regularity. The very nature of the digital ground on which the pseudo-commons are built must play its part in the fact we are viewed in a different light.

    This aside, the creative commons hasn’t shown much progress in the area of enforcement. The recognizance of individuals within crowd does not provide sufficient institutional oversight to promote a more even application of the functions of fair use. As much as it must pain many old-school technologists to hear it, there needs to be some sort of regulatory apparatus beyond just the apathies, and predilections of the some members of the crowd.

    And that, given the very nature of the pseudo-commons, currently seems like a near impossibility. The state of the tangible commons on which the pseudo-commons are overlapped doesn’t help matters: as often, the long arm of established common law reaches into the digital domain. After all in the digital commons we avoid the finicky issue of law and law enforcement of the creative commons with the current state of anomie.

    So in a sense creative commons is marginally at odds with itself as there is no developed enforcement arm within the project. The crowd needs to somehow appoint community wardens to enforce the law of the pseudo-commons, as it is well exampled by history that individuals and groups, when given ample flexibility and space, will push the margins of acceptable and normative behavior.

    1. I was attempting to point out the opposite of anomie. I think there is a robust set of norms and voluntary self regulation following from that. That is my point of departure from a healthy commons to consider the particular pathology of intentional failure in a pseudocommons. My point with open core projects is that one participant acts in some way in defiance of the accepted norms of fair sharing and the rules (CopyLeft) deriving from that ethos.

      Size or scale doesn’t enter into it in terms of ethos and rules. Not every user of free software exercises all four software freedoms, granted, but that doesn’t reduce their importance or alter the expectation of any particular commoner of their ability to do so. A pseudocommons intentionally breaks that expectation, often in subtle and surprising ways.

      In terms of the shared resources a proprietary vendor may furnish, I don’t see those as essential to the intellectual commons that builds on them. Many former Sun/Oracle projects have easily enough moved their source code and efforts of their other labors to new hosts. The ones able to do so more consciously retained the true goods of the commons, the copyright assignments critical to legal enforcement of the commons rules, again CopyLeft. The ones stuck with their new, questionable corporate steward are the ones that gave up those copyrights. My point about adhesion is that I suspect sneaky vendors looking to set up a pseudocommons condition access to their resources on giving up the ability to enforce a more open commons. I’ll concede that the essay does get a bit fuddled at that point.

      In terms of enforcement, I’ll partially concede that Creative Commons doesn’t have an actor or agency pursuing enforcement as of yet. I am not sure it has so far proven necessary, not in the same way that the Software Freedom Law Center and others act on behalf of projects using GPL to press compliance where necessary. Negative press attention has so far served well enough, I suppose, to bring some potential pseudocommons around. That was my point about Carr’s notion of digital share cropping. That stinging rhetoric, along with other debate and attention, helped raise awareness to prevent certain abuses. It’s not perfect and I am sure there are those we simply haven’t heard about who’ve had their license choices stomped upon.

      I will cede that enforcement becomes more problematic the wider the sharing is spread, as is often the case with CC. Defending a software project is relatively concentrated with higher stakes making it simpler in some ways. Of course, that’s the flaw of traditional copyright, too: the ability to enforce is unevenly distributed. In practice, the better ability to sue goes to those with more cash to do so. CC doesn’t change that though it at least opens the door for more third party defenders and perhaps leverages more group strength. That is not only are the works and rights of a single complainant at stake but the validity of the license itself.

  2. You still seem to have the mistaken view that everybody who engages in the use of the commons (grand, creative or otherwise) are also fluent with it’s working, or even that they should be familiar with such commons.

    Part of a lawful order is protecting the innocent, and those casual users who don’t really know any better. Are you claiming that casual users are not permitted the same protections granted to more engrossed or educated participants? I don’t think you, or the niche technology community as a whole, truly appreciate the extent of their creation. The Web has expanded access beyond just the geeks. Are you somehow implying that the other casual users (trolls etc.) are not deserving of such protections you claim should apply universally?

    I doubt you would even fathom such a gross misappropriation of non-attributed content. But I just wish to emphasize that your narrow definitions of the pseudo-commons to just software and their developers forgoes a larger and more seeping social problem. How should we relate? How does the technologist interest in privacy conflict with their demands for attribution? How should this very interaction matter? Does it? Am I just a troll here pestering you with an uneducated and undeserved platform? I don’t know. You must think I am just an just an unattributable commenter who threatens your sacrosanct view. I wish that not to be the case but I cannot judge your visceral reaction this discussion.

    You beg the question when you categorically narrow the scope of my position. Is it even possible for a non-community member to be taken seriously by someone not part of the “in” group of the time? These are all questions that I have developed great interest in. One, do these questions even matter? Two, are they outside the scope of your interests and show? If they are I can spare you the trouble of reading anymore of my rants. The Web is a very large place.

    Sometimes I wish that technologist could recognize that scope of huge and diverse multitude of opinions. With the “open sourcing” or public shareing of all these opinions why can’t CC be more grand in scope? (Truthfully I thought it already was, are you implying a limiting of its use?) Shunning the greater commons by narrowly defining “commons” could sew the unmaking of the whole movement as just another divide between “haves” and “have-nots” just as the old system has done.

    Creative commons is on the cusp of something great, I would hate to see it slip into the dust bin of history because one groups claims it’s exclusive terms of application. Software is just one important aspect of a hugely encompassing social issue.

    I also must ask, how can you self-regulate the entire commons with just a self appointed group? How is that any better then the traditional “unbalanced” system. CC can suffer the same monetary or prestige imbalance found in traditional law, in fact minus standard universal terms of application then this is bound to happen.

    You may not realize it but community involvement is just one important aspect of law enforcment. The crime has to be reported first (the community’s desire to correct a wrong) before something is done about it (the arrival of the police) subsequently followed by due process (Court). Currently Press and traditional lawful actions are still the primary method of enforcement (or lack thereof) for the CC. Given the CC’s proponents usual insistence on due process I wonder how this sort of mob-policing mentality fits with that ideal?

    To take an different tack, do you really think that short form works that make up most of the other forms of intellectual contribution to the larger commons (and there is a great amount of it) is actually self regulating. I guess, once again, I am trying to make a broader comment about ALL users of common space (all of the WWW) and not just the self-appointed “primary” users of those common resources.

    For example, do web-masters have more freedom than, or more lawful power over website users? This is the current anomic reality, standards of use are different on every website. Some places like Sarah Palin’s Facebook page delete content at the drop of a hat, others like BoingBoing are much more forgiving. But ask yourself aren’t both part of the same commons?

    So you may deny the anomie within the subset of software development. But I think you are doing that at the expense of the heated social friction that exists inside the Grand Commons (the WWW and anything publicly posted in it). I think your point about the misbehavior of corporations is enough to prove that an anomie still exists in the software realm ( but alas, I’ve already conceded you the point if you think it’s working then I will take you at your word).

    I can’t emphasize enough that there can be no grand “commons” when just a select group engages in its “proper” use. Your examples bear out well within the subset of software developers, and perhaps the software developers can self regulate and ward themselves. But what of all internet users? Maybe I am pushing the scope of your show. Perhaps social issues and the issues of inclusiveness are not really what the technology community as a whole are interested in tackling. I guess I can’t blame them for their discomfort with and disdain of greater society.

    Whatever you do, just don’t forget that the WWW represents more then one mind or one group mind can comprehend at any one point in time. And not all those who might need creative commons will have the knowledge of its protections. Aren’t they entitled to that protection by virtue of their use of the commons (the WWW)? Doesn’t your entire position demand the establishment of more standards of public behavior for the common space?

    1. I think protecting commons relies on many things. I like Lessig’s framework from Code and Code 2.0 and think it applies here: norms, laws, physical architecture, and the market. Norms could possibly cover your questions about knowledge and engagement but as you rightly pointed out, that’s not the only dimension. Norms can also cover education and advocacy, to what I think you were referring when you mention “mob policing”. Nothing is stopping the fine folks at Creative Commons from undertaking compliance actions like the Software Freedom Law Center does for the GPL. To date, they have not, relying more on communication and outreach. The fact that commons persist and thrive with different mixtures of those four factors doesn’t make them anomies.

      Nowhere did I suggest any sort of exclusivity for participation or upkeep of commons. I also think you are reading way too much into my urgings for commoners to learn more about the commons in which they participate. I personally do what I can to answer questions put to me about the commons I know something about, like FLOSS and CC. I don’t think the fact someone has to ask about some part of the licensing means that somehow the license is less effective for them.

      My intent in discussing the pseudocommons was to identify a particular antipattern. I think you’ve strayed well past that at the expense of further understanding examples of the antipattern. I will undoubtedly re-visit more aspects of commons as I continue my reading, providing more specific aspects we can discuss further.

  3. Why do I get the feeling we have different conceptions of “commons”. You appear to view something as “in the commons” if it placed under said license. I think I was trying to define “commons” in a more inclusive way, somewhat similar to a village square or a public park. Perhaps suggesting that anything published online would naturally fall under the “commons” license with no action or opting required by the writer or artist. That’s kinda of how it is now, perhaps excluding the current anomic piracy, since at the moment this isn’t an accepted standard or a requirement, or implicit in the use of any connective software. Rather we have “fair use” agreements that seek to control what is said in this public space about one individual or entity.

    My criticism stems from the over-qualification of a normatively broad-based and inclusive term. Think of it as the CC still contains the intent of the term”common” yet it is fettered with a large number of qualifiers, the most glaring catch being the “opt-in” knowledge barrier.

  4. I like your characterization of content sharecropping and “open core” as pseudo-commons. Great episode!

    While explaining digital commons, I think you over-emphasized copyright. By which I mean you only talked about copyleft as a governance mechanism. Successful digital commons that do not rely on copyleft (eg permissively licensed and public domain software and content projects, collaborations that ignore copyright such as “pirate” curators of cultural content) demonstrate that other governance mechanisms are at work that have nothing to do with copyright, or in some cases at least rely on copyright mechanisms other than copyleft — for example, access to participation, reputation, anti-copyfraud activities.

    It’s also worth mentioning that copyleft doesn’t always work (but of course it doesn’t, any governance mechanism has failure modes). Incompatible copyleft mechanisms are the most obvious. In the extreme, consider if each project tended to make up its own copyleft license. Any cross-project collaboration would require a painful relicensing process; the concept of anti-commons mentioned by John above would be useful in describing this scenario. Fortunately we’re nowhere near this extreme.

    Especially on larger scales (e.g., field, jurisdiction, worldwide), there are additional mechanisms for maintaining digital commons, such as working for increased copyright exceptions and limitations (granted I think you mentioned something like this), against copyright and related expansions and extensions — through law and legislation, changing the technological environment to be effect more freedom in practice, as well as content libera^w”piracy”. Some of this is the digital equivalent of what Hyde recounts as “beating the bounds of the commons”. None of this has anything to do with copyleft, except to the limited extent copyleft-governed projects motivate better policy.

    Copyleft is a fantastic hack, and utterly necessary in the current environment; I’m a big fan. Just saying that a vision of digital commons governance limited to copyleft is impoverished.

    Last quibble, you mention respect of author choice out of fairness. That’s great, but there are definite limits to legally mandating such fairness if there is to be a commons at all — e.g., exceptions and limitations, public domain. It’s a question of where those limits are drawn.

    1. Thanks for the praise and the clarifications. I will definitely try to address your points when I get around to re-working my notes into an essay for posting on the web site. It may have to wait until I’ve had a chance for further reading as the over emphasis on both copyright and copyleft reveal the bias in my current reading.

      Can you recommend any good titles just on the broader notion of commons as a governance model, regardless of mechanism? I have Bollier’s “Viral Spiral” but haven’t even perused the TOC yet. Judging by the title, I am guessing it also focuses more on copyleft.

      1. It has been a long time since I’ve read “Viral Spiral”, but I recall it is a journalistic history (not a criticism, it’s a good book, love that such a history exists already); I don’t think it covers copyleft policy or governance in general with any depth.

        I don’t know that there’s much of a literature directly on digital commons governance. The most relevant material would probably be in the guise of community building and management, but off the top of my head see the work of Mayo Fuster Morell at and a recent post by Simon Phipps which distills a relevant subtopic pretty well.

        Also I’ve been meaning to expand on … for a number of years.


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