Its purpose was to give them, the lords and masters, the freedom to do as they pleased with their property, their servants and their slaves. Echoes of Magna Carta could be heard even in post-revolutionary America and they may resolve the puzzle of how, in the US, the loudest voices for liberty came from slave-owners.

social objectives of liberty, stability and prosperity.

Meanwhile, in his Rhetoric (1367a) he defines a free man (eleutheros) as a masterless person who needs obey no one because he does not depend on having to produce or sell anything.

The Athenians invented neither slavery nor sexism. What they did invent, however, was the notion of a citizen who enjoys not only free speech but also isigoria (equal say in the final formulation of policy) independently of whether he was rich, comfortably off, or indeed a pauper eking a modest existence out of manual labour.[7] In this reading, the key figure was not Pericles, or orators of stunning talent like Demosthenes, but, rather, the anonymous landless peasant who, despite his propertylessness, had a voice in the Assembly of equal weight to that of the great and the good. This was the remarkable novelty of Athenian society which has probably never been replicated since.

It is, however, easy to dismiss Athenian democracy on two grounds: Its hypocrisy and its irrelevance for the modern world. Regarding the former, one might argue plausibly that, since the Athenian economy (public, private and domestic) engaged slave labour, and women along with resident aliens (the metics) enjoyed no citizenship, their democracy was a sham.

Judging by the large retinue of definitions in the emergent literature on E’democracy, the safest route to defining it is through the successive elimination of that which we do not want it to be: According to Coleman and Gotze (2003), it ought to be irreducible to e’government (as it is possible to imagine a dictatorship deploying highly efficient e’government systems); to pose no threat to representative democracy (i.e. it need not be a Trojan Horse for direct or plebiscitary democratic alternatives); to have little to do with technology as such and a great deal to do with re-conceptualising the ‘space’ between the ‘people’ and their ‘political rulers’…

is the Creative Commons really a commons? According to its website, Creative Commons defines the spectrum of possibilities between full copyright - all rights reserved - and the public domain - no rights reserved. Our licenses help you keep your copyright while inviting certain uses of your work - a “some rights reserved” copyright. The point is clear: Creative Commons exists to help “you,” the producer, keep control of “your” work. You are invited to choose among a range of restrictions you wish to apply to “your” work, such as forbidding duplication, forbidding derivative works, or forbidding commercial use. It is assumed that as an author-producer everything you make and everything you say is your property. The right of the consumer is not mentioned, nor is the distinction between producers and consumers of culture disputed. Creative Commons legitimates, rather than denies, producer-control and enforces, rather than abolishes, the distinction between producer and consumer. It expands the legal framework for producers to deny consumers the possibility to create use-value or exchange-value out of the common stock.

The dissidents of intellectual property have had a rich history among avant-garde artists, zine producers, radical musicians, and the subcultural fringe. Today the fight against intellectual property is being led by lawyers, professors and members of government. Not only is the social strata of the leading players very different, which in itself might not be such an important detail, but the framework of the struggle against intellectual property has completely changed. Before law professors like Lawrence Lessig became interested in IP, the discourse among dissidents was against any ownership of the commons, intellectual or physical. Now center stage is occupied by supporters of property and economic privilege. The argument is no longer that the author is a fiction and that property is theft, but that intellectual property law needs to be restrained and reformed because it now infringes upon the rights of creators.

To be free means to be open to commercial appropriation, since freedom is defined as the nonrestrictive circulation of information rather than as freedom from exploitation.

the understanding of proprietary as synonymous with closed-sourced or nontransparent. Proprietary means having an owner who prohibits access to information, who keeps the source code secret; it does not necessarily mean having an owner who extracts a profit, although keeping the source code secret and extracting a profit often coincide in practice.

But there is a difference from the older anticopyright tradition. Fleischer claims that copyright has become absurd in the age of digital technology because it has to resort to all sorts of fictions, like distinctions between uploading and downloading or between producer and consumer, which don’t actually exist in horizontal P2P communication. Pyratbiran rejects copyright in its entirety – not because it was flawed in its inception, but because it was invented to regulate an expensive, one-way machine like the printing press, and it no longer corresponds to the practices that have been made possible by current technologies of reproduction.

Other content providers and book publishers (Verso, for example) have expanded this restriction by claiming that copying, modifying and redistributing should not only be non-profit but also in the spirit of the original - without explaining what this “spirit” means.

The different pre-Enlightenment traditions did not consider ideas to be original inventions that could be owned because knowledge was held in common. Art and philosophy were products of the accumulated wisdom of the past. There were no authors - in the sense of original creators and final authorities - but only masters of various crafts (sculpture, painting, poetry, philosophy) whose task was to appropriate existing knowledge, re-organize it, make it specific to their age, and transmit it further.

Romanticism was born as a contradictory response to these developments. It was an opposition to capitalism, but one expressed through the language of private property and the assumptions inherited from the philosophical discourse that legitimated capitalism’s mode of production. Romanticism denounced the alienation and loss of independence spawned by industrial production and market relations, and portrayed the artist in heroic opposition to the drive for profit.

Ideas are viral, they couple with other ideas, change shape, and migrate into unfamiliar territories. The intellectual property regime restricts the promiscuity of ideas and traps them in artificial enclosures, extracting exclusive benefits from their ownership and control. Intellectual property is fraud - a legal privilege to falsely represent oneself as the sole “owner” of an idea, expression or technique and to charge a tax to all who want to perceive, express or apply this “property” in their own production. It is not plagiarism that dispossesses an “owner” of the use of an idea; it is intellectual property, backed by the invasive violence of the state, that dispossesses everyone else from using their common culture. The basis for this dispossession is the legal fiction of the author as a sovereign individual who creates original works out of the wellspring of his imagination and thus has a natural and exclusive right to ownership. Foucault unmasked authorship as a functional principle that impedes the free circulation, the free manipulation, the free composition, decomposition, and recomposition of knowledge. The author-function represents a form of despotism over the proliferation of ideas. The effects of this despotism, and of the system of intellectual property that it shelters and preserves, is that it robs us of our cultural memory, censors our words, and chains our imagination to the law.

And yet artists continue to be flattered by their association with this myth of the creative genius, turning a blind eye to how it is used to justify their exploitation and expand the privilege of the property owning elite. Copyright pits author against author in a war of competition for originality – its effects are not only economic, it also naturalizes a certain process of knowledge production, delegitimates the notion of a common culture, and cripples social relations. Artists are not encouraged to share their thoughts, expressions and works or to contribute to a common pool of creativity. Instead, they jealously guard their “property” from others, who they view as potential competitors, spies and thieves lying in wait to snatch and defile their original ideas. This is a vision of the art world created in capitalism’s own image, whose ultimate aim is to make it possible for corporations to appropriate the alienated products of its intellectual workers.

n his 1870 Poesies, Lautreamont called for a return of impersonal poetry, a poetry written by all. He added, Plagiarism is necessary. Progress implies it. It closely grasps an author’s sentence, uses his expressions, deletes a false idea, replaces it with a right one.

These forms of behavior also included collective writings, which were often unsigned, and an explicit refusal of the copyright regime by attaching the labels “no copyright” or “anticopyright” to their works, along with the directions for use: any of the texts in this book may be freely reproduced, translated or adapted even without mentioning the source.

Steward Home, a well-known proponent of plagiarism and organizer of several Festivals of Plagiarsm from 1988-1989

Perhaps the most important effect of digitalization is that it threatens the traditional benefactors of intellectual property since monopolistic control by book publishers, music labels and the film industry is no longer necessary as ordinary people are taking up the means of production and distribution for themselves.

Copyleft uses copyright law, but flips it over to serve the opposite of its usual purpose. Instead of fostering privatization, it becomes a guarantee that everyone has the freedom to use, copy, distribute and modify software or any other work. Its only “restriction” is precisely the one that guarantees freedom – users are not permitted to restrict anyone else’s freedom since all copies and derivations must be redistributed under the same license. Copyleft claims ownership legally only to relinquish it practically by allowing everyone to use the work as they choose as long the copyleft is passed down. The merely formal claim of ownership means that no one else may put a copyright over a copylefted work and try to limit its use.

a widespread consensus that copyright has been perverted into a tool that benefits corporations rather than the authors for whom it was originally intended. But no such golden age of copyright exists. Copyright has always been a legal tool that coupled texts to the names of authors in order to transform ideas into commodities and turn a profit for the owners of capital.

mon examples help to clarify this diversity of motivation. Simplest to see is how these motivations play out with regard to sex: the prostitution fee ( M ), the orgasm ( H ), and love ( SP ).

e the core of commons-based peer production entails provisioning withou t direct appropriation and since indirect appropriation—intrinsic or extrinsic—does not rely on control of the information but on its widest possible availability, intellectual property offers no gain, only loss, to peer production. While it is true that free software currently uses copyright-based licensing to prevent certain kinds of defection from peer production processes, that strategy is needed only as a form of institutional jiujitsu to defend from intellectual property. 136 A complete absence of property in the software domain would be at least as congenial to free software development as the condition where property exists, but copyright permits free soft ware projects to use licensing to defend themselves from defection. The same protection from defection might be provided by other means as well, such as creating simple public mechanisms for contributing one’s work in a way that makes it unsusceptible to downstream appropriation—a conservancy of sorts. Regulators concerned with fostering innovation may better direct their efforts toward providing the institutional tools that would help thousands of people to collaborate without appropriating their joint product, making the information they produce freely availabl e rather than spending their efforts to increase the scope and sophistication of the mechanisms for private appropriation of this public good as they now do.

The first thing to see from the discussion of threats to motivation is that provisioning integration by permitting the integrator to be the residual owner (in effect, to “hire” the contributors and act as the entrepreneur) presents substantial problems for the motivation to contribute in a peer- based production model. Appropriati on may so affect motivation to participate that the residual owner will have to resort to market- and hierarchy-based organization of th e whole production effort. Se

Another form of appropriation th at could affect valuation of participation is simple commercialization for private gain. The primary concern is that commercialization by some participants or even by nonparticipants will create a sucker’s rewa rd aspect to participation. This is the effect I introduced into the abstr act statement of diverse motivations as the jalt factor—the effect of monetary rewards for others on the perceived value of participation. One example of such an effect may have occurred when the early discussion moderators on AOL boards—volunteers all—left when they began to realize that their contributions were effectively going to increase the value of the company. There is, however, an immensely important counterexample—to wit, th e apparent imperviousness of free software production, our paradigm case, to this effect. S

is here th at the term “commons” that I use in describing the phenomenon as “commons-based peer production” gets its bite, denoting the centrality of the absence of exclusion as the organizing feature of this new mode of pr oduction and highlighting the potential pitfalls of such an absence for decentralized production.

A project that allows highly motivated contributors to carry a heavier load will be able to harn ess a diversely motivated human capital force more effectively than a project that can receive only standard-sized contributions.

Given a sufficiently large number of contributions, direct monetary incentives necessary to bring about contributions are trivial.

Peer production relies on making an unbou nded set of resources available to an unbounded set of agents, wh o can apply themselves toward an unbounded set of projects.

The widely distributed model of information production will better identify who is the best person to produce a specific component of a project, all abilities and availability to work on the specific module within a specific time frame considered .

hypothesis is that rich information ex change among large sets of agents free to communicate and use existing information resources cheaply will create sufficiently substantial information gain s that, together with the allocation gains that I will discuss in the following Section, overcome the information- exchange costs due to the absence of pricing and managerial direction and the added coordination costs created by the lack of property and contract

r production—proprietary, not commons- based

When I organized the Freeware Summit (later known as the Open Source Summit) in 1998, it was because I recognized that there were multiple communities like that, that their leaders had never met in person, and would benefit from talking about common problems and shaping a common story. And being a media company, we organized a press conference at the end of the day to get that story out. And sure enough, two months later, Linus Torvalds was on the cover of Forbes , with full-page pictures inside of Larry Wall, Richard Stallman, Brian Behlendorf, and others.

Jono Bacon has firsthand experience with managing a group of the most bloody-minded and independent people on the planet: open source programmers. The information in this book has been forged in the white-hot crucible of free software. You don’t get tougher than that.

ost promising in this regard are ideas for introducing a National Software Foundation, perhaps within the National Science Foundation, that will fund soft- ware development projects on condition that the fruits be licensed as free software, and the adoption of a government procurement policy that would require that software written under government contract be released as free software

Under either of these theories, exclusive rights in ideas or ex- pressions, or for that matter in communications infrastructure, are unjustifiable to the extent that they are not plainly necessary to sus- tain productivity and growth. In Rawls’s framework, we would not justify exclusive rights in information, culture, or communications fa- cilities if doing so would raise the cost of access, unless we knew that doing so would increase productivity so as, given appropriate redistri- bution, to improve the condition of those worst off in society. But if it appears, as it is beginning to appear, that enabling substantial com- mons-based production will enhance , rather than retard, productivity and growth, then to the extent that this is true, justice (as well as growth) would require us to prefer a framework where all are equally privileged to use a set of information and communications resources and outputs to one where all resources and outputs in these domains are subject to a price

Finally, as we think about the relationship between the structure of information and cultural production and liberal society, there is the question of how the transition to more commons-based production will affect social justice, or equality. Here in particular it is important to retain a cautious perspective as to how much can be changed by reorganizing our information production system. Raw poverty and social or racial stratification will not be substantially affected by these changes. Education will do much more than a laptop and a high speed Internet connection in every home, though these might contribute in some measure to avoiding increasing inequality in the advanced economies, where opportunities for both production and consump- tion may increasingly be known only to those connected.

Autonomy, or individual freedom, is the second value that I sug- gest can be substantially served by increasing the portion of our in- formation environment that is a commons and by facilitating non- market production. Autonomy means many things to many people, and some of these conceptions are quite significantly opposed to oth- ers. Nonetheless, from an autonomy perspective the role of the indi- vidual in commons-based production is superior to property-based production almost regardless of the conception one has of that value.

To ask the creators of “Survivor” and “Who Wants to Marry a Millionaire?” to be the source of our common political discourse is sad. To rely on them to be the Cerberus of a democracy otherwise conceived as lifeless enough to be largely a power struggle among bureaucratic and business elites is tragic.

strongest arguments in favor of strong media come from Sunstein and Netanel. Sunstein’s core claim is that the mass media provide a com- mon language, a common agenda, and a set of images with which to create a common discourse. Without these, he argues, we shall be a nation of political narcissists, incapable of true political discourse. 21 Netanel’s most important claim is that the resources and market- based economic heft that the commercial mass media have is abso- lutely necessary, in the presence of powerful government and power- ful business interests, to preserve the independence and critical force of the Fourth Estate as watchdog of our democratic system of gov- ernance.

First, if the networked information economy is permitted to emerge from the institutional battle, it will enable an outward shift of the limits that productivity places on the political imagination. Second, a society committed to any positive combination of the three values needs to adopt robust policies to facilitate these modes of production, because facilitating these modes of production does not represent a choice between productivity and liberal values, but rather an oppor- BENKLER . DOC 10/10/03 9:37 AM 1262 DUKE LAW JOURNAL [Vol. 52:1245 tunity actually to relax the efficient limit on the plausible set of politi- cal arrangements available given the constraints of productivity.

Although the claim that the Internet leads to some form or another of “decentralization” is not new, the funda- mental role played in this transformation by the emergence of non- market, nonproprietary production and distribution is often over- looked, if not willfully ignored

the radical decentralization of intelligence in our communications network and the centrality of information, knowl- edge, culture, and ideas to advanced economic activity—the net- worked information economy . By “networked information economy,” I mean to describe an emerging stage of what in the past has been called more generally “the information economy” or “the information society.” I would use the term in contradistinction to the earlier stage of the information economy, which one could call the “ industrial in- formation economy.”

Let us think, then, of our being thrust into this moment as a challenge. We are in the midst of a technological, economic, and or- ganizational transformation that allows us to renegotiate the terms of freedom, justice, and productivity in the information society. How we shall live in this new environment will largely depend on policy choices that we will make over the next decade or two. To be able to understand these choices, to be able to make them well, we must un- derstand that they are part of a social and political choice—a choice about how to be free, equal, and productive human beings under a new set of technological and economic conditions. As economic pol- icy, letting yesterday’s winners dictate the terms of economic compe- tition tomorrow is disastrous. As social policy, missing an opportunity to enrich democracy, freedom, and equality in our society, while maintaining or even enhancing our productivity, is unforgivable.

There is no benevolent historical force, however, that will inexo- rably lead the technological-economic moment to develop towards an open, diverse, liberal equilibrium. If the transformation occurs, it will lead to substantial redistribution of power and money from the twen- tieth-century, industrial producers of information, culture, and com- munications—like Hollywood, the recording industry, and the tele- communications giants—to a widely diffuse population around the globe. None of the industrial giants of yore are going to take this re- distribution lying down. Technology will not overcome their resis- tance through some insurmountable progressive impulse. The reor- ganization of production, and the advances it can bring in democracy, autonomy, and social justice will emerge, if it emerges, only as a result of social and political action.

Together these shifts can move the boundaries of liberty along all three vectors of liberal political morality.

An underlying efficient limit on how we can pursue any mix of arrangements to implement our commitments to democracy, auton- omy, and equality, however, has been the pursuit of productivity and growth.

pens a range of new opportunities for pursuing core political values of liberal societies—democracy, individual freedom, and social justice. These values provide three vectors of political morality along which the shape and dimensions of any liberal society can be plotted. Because, however, they are often contradictory rather than comple- mentary, the pursuit of each of these values places certain limits on how we conceive of and pursue the others, leading different liberal societies to respect them in different patterns. I

The Phantom Edit had done something that would have been unimaginable a decade earlier. One creative individual took Hollywood’s finished product as raw material and extracted from within it his own film. So

or now it is important to recognize that the Web is a global library produced by millions of people.

While open source software developm ent has captured the attention and devotion of many, it is by no stretch of the imagination the first or most important instance of production by peers who interact and collaborate without being organized on either a market-based or a managerial/hierarchical model. Most important in this regard is the academic enterprise, and in particular scientific research. Thousands of individuals make contributions to a body of knowledge, set up internal systems of quality control, and produce the core of our information and knowledge environment.

The normative implications of recognizing peer production are substantial.

23

Finally, the sheer size of some of these projects enables the collaboration platform to correct for defection

primary remaining scarce resource is human creativity

The advantages of peer production are, then, improved identification and allocation of human creativity. Th

Commons-based peer production, the emerging third model of production I describe here, relies on d ecentralized information gathering and exchange to reduce the uncertainty of participants. It has particular advantages as an information process for identifying and allocating human creativity available to work on information and cultural resources. 14 It depends on very large aggregations of individuals independently scouring their information environment in sear ch of opportunities to be creative in small or large increments.

Neither the Apache project nor the Free Software Foundation publishes the names of individual contributors.