This text is a revised version of the talk delivered at The Workers and Punks’ University May Day School on “Transition, Austerity and Primitive Accumulation – Left Answers” in Ljubljana on the 28th of April, 2013. The text has been expanded with the insights relating particularly to the digital commons activism in the Balkans region, drawing on the debates in the working sessions at the Green Academy in Vis in Semptember of 2012.

This text will reflect on some of the issues around digital commons, primarily free software, from a historical point of view. It will be looking back at the processes that have shaped the production and access to digital commons and conceptualizations that were produced in order to understand their social significance. Concretely, it will focus on four aspects of the problematic: - economics of digital commons; - continuous primitive accumulation by means of intellectual property rights; - possibility of a relative autonomy of cooperative production within the capitalist mode of production; - possible courses of action for digital commons activists in the Balkans.

While analyzing the first and the second, it’ll discuss more in detail issues that relate to free software. However, the debate around the digital commons – viewed in the context of their emergence over the last twenty to thirty years with the ascendancy of digital technologies and the internet – warrants that the concept of digital commons can be understood very broadly to include a variety of forms of intellectual production and thus the discussion of free software here touches upon broader concerns related to digital commons.

As a matter of definition, digital commons are cultural, scientific, software and educational works that are not restricted in use by copyright property entitlements – for reasons that they are either not subject to copyright protection, that the term of protection has expired, or that their creators have voluntarily made them available without monetary compensation for sharing and collaborative peer-production. But given the expansion of copyright and other intellectual property rights in the same period of thirty years, digital commons are also in constant danger of future enclosure.

However, as the debate around digital commons revolves around the antagonisms generated by the application of copyright and intellectual property rights, it often touches upon three other intensely contested debates. First, the debate on objects of the material world that through the development of technologies have become subject to intellectual property enclosure in the form of patents. Second, the debate around the monopoly regulation and public access to telecommunication infrastructures. Third, and probably most frequently, the debate on illegal access to and sharing of copyrighted works that are often stigmatized as piracy. Given that the monopoly access to exploitation of intellectual works, medicines and telecommunication infrastructure provided by intellectual property rights forms the basis of profits of the commanding heights of contemporary capitalist enterprise – with telecommunication, software, media and pharma companies topping the lists of world’s largest companies – the contestation of these monopoly entitlements shakes at the strongest pillars of the contemporary capitalist system and any attempt to think the replacement of contemporary capitalism has to take them into account. But also given that the legal practices of commoning and illicit practices of illegal sharing can have immediate social and developmental equalizing effects, they provide a recourse within the continuing endurance of real existing capitalism. This broad problematic thus that has fundamental implications on both how we envision the anti-capitalist strategy and everyday autonomy.

But before more is said about the digital commons, three remarks that shed some light on the discussion of digital commons from the perspective of technological development and enclosures.

First, and to return the point already made, when debating the digital comes and their enclosures from a historical point of view, we cannot leave material resources out of that debate. Simply because the enclosures in digital commons have over the last two decades gone hand in hand with the enclosures of some of the essential material resources for human livelihoods such as healthcare, food production, environmental engineering, all domains where new enclosures have been made possible by the advances in digital technologies: e.g. computing technologies used in genome sequencing or biocomputing. And as the digital technologies have created conditions for new forms of intellectual production and generation of material resources, they have also paved the way for their commodification and increasing levels of control by means of intellectual property rights. By the late 1990s an offensive was launched, occasioned by the rise of filesharing networks and the push to control the copyright in the digital domain, that served as a pretext to solidify protections over tangible resources such as medicines or crops, where at that point patents were used to transform e.g. subsistence agriculture into industrial agriculture producing for global markets or traditional medicines into pharmaceutical products marketed back to indigenous communities. These overlapping conflicts over tangible and intangible resources then prompted allied efforts of free software, open access in scientific publishing, open education, access2knowledge, access2medicine and open science proponents to push back that global offensive.

Secondly, and this gets frequently overlooked by the advocates of the digital commons such as myself, the rise of digital technologies - while being emancipatory in many ways - has also implied the technological advances in productivity that have had a disruptive effect on society and labour in general. First, through integration, optimization and standardization of production leading to increased productivity and competition between capitalist enterprises. Second, through the enabling effect, they have had on the creation and exponential growth of new financial instruments and markets. Third, through automation and substitution of workers by machines. Some of these contradictions between emancipatory and disruptive features of technologies, and by implication digital commons, are currently made evident by the debate around massive open online courses, where open access to education plays into the hands of administrators in universities in their effort to deskill and downsize their faculties.

Thirdly, there’s a recent development in the debate about free software, insofar as computing (software and hardware) is increasingly transitioning into virtualization and cloud computing, transforming software from a good into a service, where then technology behind the service remains completely out of user’s control and access. So, while a service might be free of charge, actual economic power and control is concentrated in the infrastructure held closed by the service provider - e.g. in big data centres and data sets they store - and the ability of these providers to process the huge amounts of user-generated data and thus to sell users’ behavior as a commodity to advertisers. (At which point we might consider turning to Dallas E. Smythe for his analysis of audience commodity and audience labour.) Thus struggle over data and not over software is becoming increasingly important in this debate. But let us now turn to digital commons.

Economics of digital commons

The debate around economic aspects of digital commons, in particular free software, has been dominated by two very different arguments:

The first has come very early on in the history of free software. It acknowledged the innovative character of the cooperative form of production in the free software, attributing it a revolutionary potential as a post-capitalist form of production. This argument was first theoretically put forward within the context of the Oekonux research group in Germany in the late 90s and early 00s (primarily by Stefan Merten, Stefan Meretz, André Gorz)¹, but this view has since persisted particularly in the cultural circles. In their analysis, they understood free software as providing means of self-realization for its creators, as being non-commodified and abundant, and as a ‘seed’-form of a new formation of cooperative production that would eventually lead into the post-capitalist ‘GNU GPL society’.

This line of argument was refuted early on by Sabine Nuss and Michael Heinrich with a talk they delivered within the same context in 2001, where they have argued that the software is not disruptive to capitalist valorization, that it can be freely appropriated by the capitalist enterprise as a free input, that it doesn’t create the means of subsistence for its creators outside of capitalist mode of production, and that it can ultimately serve to propel and modernize the capitalist mode of production.²

But, it is the second argument, which has emerged several years later, that has dominated the debate since. It has reflected the shifting terms of the debate that have come with the mainstream adoption of free software in business, but also with the rise of other propertyless forms of cooperative production such as Wikipedia or open access publishing. It was penned in 2002 by Yochai Benkler in his Coase’s Penguin, or, Linux and The Nature of the Firm.³ There he argues that the free software crystallizes a model of “commons-based peer production”, a third organizational model of production alongside the firm and the market. Benkler here draws on Ronald Coase’s analysis in the Nature of the Firm, where Coase identifies two fundamental organizational models of economic production in capitalism - the market and the firm - and explains the economic rationality for the hierarchical and relatively static organizational form that makes the firm so prevalent - something that has puzzled the economists before him. In Coase’s view, the firm emerges for reasons of lower transaction costs, i.e. costs in finding and contracting skills and resources necessary in the production of a complex product. Benkler argues that the commons-based peer production as an emerging, third organizational model in the production of information exhibits two salient characteristics: just as the firm it reduces the transaction costs, just as the market it is non-hierarchical. And at that, it comes without exclusions of property and separation from the means of production. Ultimately, in the domains of production where both input and output are information, where the intangible nature of the product makes it non-rivalrous and non-excludable, it is superior to both the firm and the market. “It has particular advantages as an information process for identifying and allocating human creativity available to work on information and cultural resources. It depends on very large aggregations of individuals independently scouring their information environment in search of opportunities to be creative in small or large increments.”⁴

By operating at the level of institutional microeconomics, Benkler’s analysis provides probably a better account of the actual economic organizational potential behind the free software than the utopian account of Oekonux group. - Although, an analysis today would probably show that for a while the development model for free software has been a hybrid of peer producers, firms and freelance skills contracted in the market, with the growing contributions in code made by the large enterprises, who use GNU/Linux to power their distributed computing infrastructures. - But, regardless of that, by formulating the debate around the ‘political economy’ of digital commons solely in these terms, ignoring the macroeconomic level and the issues of the capitalist mode of production, this analysis condemns the understanding of free software and digital commons to the catechism of neoclassical economics of the efficient market, transaction costs and price signals. It probably should come as no surprise that a field studying information should conflate and reduce the object of its study – information economy – with a dominant orientation in economic science – information economics. Such a focus has then lead the arguments that have uncritically espoused Benkler’s analysis to take for granted the assumptions of information economics, including its agnosticism towards the limitations to growth and the availability of resources. This has in turn resulted in a blind spot where the debate has ignored the issue of the cost of reproduction of labor that goes into the production of commons.

However, the fact that this theory and its microeconomic approach have become dominant is not for reasons of its explanatory power. But rather because it resonates with the efforts by the business-friendly open source community to make the free software amenable to interests of profit-making. This ideological shift operated by the open-source community reflected, however, the actual inability of free software philosophy to articulate and address the problems of how to sustain the labour that goes into the cooperative propertyless form of production that it advocated.

Continuous primitive accumulation by means of intellectual property rights

While the copyright and patent regulation has started to become internationally standardized at the end of 19th century, it is only since the enactment of 1994 Trade-Related Intellectual Property Rights (TRIPS) agreement within the WTO framework that there has been a coordinated push by a small number of developed nations, who are net exporters of intellectual property rights, to impose the harmonization and enforcement of copyright, patents and other intellectual property rights on other nations. As it was enacted at the height of global AIDS crisis, the agreement very soon showed its teeth when South Africa pressed forward and issued a legitimate and legal compulsory license on AIDS treatment, at that moment when over 10% of its population was infected, only to be immediately sued by 39 international pharmaceuticals who were selling AIDS treatment at the hundredfold price of what the medicine cost South Africa to produce and way above the price that an overwhelming majority of South African population could afford. This conflict set off several rounds of international agreements, the latest being ACTA, where developed and underdeveloped nations have fought around the terms and the human cost of international harmonization of intellectual property rights.

These agreements have thrown together under the same regime of regulation and bargaining very different social goods, ranging from literature to handbags to medicines to software (it was under the TRIPS agreement that the computer programs have received the globally harmonized status and protection under copyright as if they were “literary works”). Why are they thrown together becomes clear once we understand that the expansion of intellectual property rights over medicines, knowledge and culture, and the drive towards international harmonization of legal regulation and imposition of strict IPRs on less developed parts of the world are a telltale example of how expanding circuits of property entitlements, commodification and legal regulation serve to establish markets first as a mechanism of dispossession and discipline, and only later as an economic mechanism. This strategy of prospecting and its disciplining effects become clear when we look at the example of proprietary software. There the piracy – as one of the primary targets of global IPR policing – has been tolerated by copyright holders as a strategy for them to establish de facto monopolies in operating systems, standards and applications across the globe. At the same time, stringent regulation has been pushed for, including in those countries where the weak to the inexistent purchasing power of local markets does not justify the need for regulation and expansion. This has helped establish forms of global market concentration that help them make a killing in profits where and when their products can be monetized. To anyone coming from the Balkans, this will be a familiar experience.

These new enclosures, operated from the capitalist centres across the global space and exploiting the differences in the economic power between countries and social strata, exhibit a double, complementary character that Midnight Notes Collective had written about in The New Enclosures already in 1990.⁵ The exclusion from the means of production and the creation of new property relations on the periphery is always complimentary with the commodification and marketization targeting the working class in the centre. This double character can be viewed as a structural feature of global capitalism and its capacity to defeat class struggles in one location by reconfiguring its operations across the globe.

As already said in the beginning, and this requires reiterating, in these parallel circuits of coercive accumulation and commodification in the domains as various as software production, science publishing, production of medicines or food, the wholesale character of international regulation of intellectual property rights meant that the emerging debate over the protection of copyrightable works in the digital domain provided a pretext or an occasion to solidify also the protections over material resources needed for subsistence and the exclusion of broad parts of the world from the advances in knowledge, technology, medicine and so on. Because the international IPR treaties cut deeply into the issues of livelihoods of populations and of competition between national economies in the global marketplace, most of whom are in the position of IPR dependency, they have mobilized primarily popular leftist governments of the global south, but also scientists, experts and activists working on issues of access to food, medicine, knowledge and culture to resist these treaties. And this is a conflict that is still ongoing, as we have seen recently with the efforts of the most advanced capitalist economies to avoid multilateral forums such as WTO and WIPO, where their deals have failed to produce desired outcomes, and impose protections by means of bilateral deals with which they are - unsuccessfully for now - trying to break the alliances that have resisted their enforcement efforts so far.

Relative autonomy of cooperative production within the capitalist world

Let me now return to free software with the question of what would be a relative autonomy of a sphere of cooperative production without exclusive property operating under the continuous conditions of real existing capitalism? Or could it be at all?

It obtains more than ever before that the free software is far from becoming a disruptive force in the development of capitalism and technology. Both because its model has become seamlessly integrated into the business models of large capitalist enterprises and because the development of information technology has made the idea of software as a packaged and reproduced good protected by copyright less relevant.

Yet still, when considered in the historical context of its emergence, it can provide us with some understanding of what an attempt at designing a project of autonomy in the capitalist world might be and understanding where the free software as a project of creating autonomy is failing. If we turn to Richard Stallman’s own account of the emergence of GNU project in the early 1980s – and ignore his political and ethical justification of software as free speech and duty towards one’s neighbour – we are met with a story that is precisely an account of primitive accumulation by separation of workers from their means of production. In that period the IT companies have started to understand that the software could be commodified as well and sold as a separate product from the hardware it was previously shipped with for free. But in order to achieve that, the code had to be closed off and the software programmers working collaboratively on the code, most of whom worked at research labs and academic institutions, excluded from access. By starting the GNU project and drafting the GNU General Public License, a legal document that uses the copyright regulation in order to turn it against its purpose of creating the exclusive property entitlements, Stallman had designed a process that was aimed at preventing expropriation and commodification - instead of maximizing the use value, creating cooperative access to the means of production and allowing members of the society to have control over the software running many of the contemporary social processes. Where free software has obviously failed, it is in the clash with the capacity of market forces to transform and integrate adverse projects, and more importantly in the failure to account for the subsistence of programmers developing software - to advocate free software as a public good and to push for a broader scope of tangible and intangible to be produced in common.

There are significant limitations to decommodified spheres of production in a capitalist system. Given the amenability of commons-based peer production to capitalist valorization process, the fact that they can easily be integrated as positive externalities, complements or free inputs into the commodified production process, their anti-systemic, disruptive and transformative potential remains limited. However, in a capitalist society, they still achieve a level of independence from money and effectively constitute an autonomous sphere of collective production. In order for these forms of cooperative production to survive, we need to find a way to embed and grow them in a broader system of cooperative production and as a complement to public services instead of surrendering them to free-riding markets.

As stated earlier, the commanding heights of contemporary capitalism hinge on the forms of monopoly created by intellectual property. It is one of the prime generators of inequality and exclusion that are driving forward the laws of motion of capitalist expansion and accumulation. The unhinging of the capitalist system depends on understanding the power over the economy and democracy exerted by these agents of monopoly capital. The forceful push towards expansion and implementation of strict protections by the US and other advanced world economies, where these agents rank among the largest of companies with inordinate lobbying and financing power over the regulator and the politics,⁶ indicates a point where activists in the dependent countries such as countries of the Balkans, where populations stand to lose a lot of their access to advanced knowledge and advanced medicines through the stricter protections, can pressure their governments to form alliances with other such countries and resist the harmonization of intellectual property rights and fight for greater exceptions for their population. For these countries, this is an issue that links directly to their economic dependence and arrested development. Furthermore, the activists have to push their governments to advocate that the intellectual property rights be internationally broken down and dealt with separately, as cultural works or designer products involve very different socio-economic aspects than agricultural products or medicines.

Lastly, we have to develop the broadest most practices of licit and sometimes illicit commoning that create the autonomy from the monetary economy, maximize the use value of intellectual goods, overcome the inequalities of economic barriers and push the contradictions of the system based on intellectual property rights to their limits. For as long as the unhinging of capitalism is not complete.

Notes

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1. Oekonux, http://oekonux.de/einfuehrung/index.html.↩

2. Sabine Nuss, Michael Heinrich: “Warum Freie Software dem Kapitalismus nicht viel anhaben kann - aber vielleicht trotzdem etwas mit Kommunismus zu tun hat”, predavanje na prvoj Oekonux konferenciji u Dortmundu 2001., http://wbk.in-berlin.de/wp_nuss/wp-content/uploads/2006/10/oekonux.htm↩

3. http://www.yale.edu/yalelj/112/BenklerWEB.pdf↩

4. Ibid, p. 8.↩

5. Midnight Notes Collective, The New Enclosures, 1990. http://www.midnightnotes.org/newenclos.html.↩

6. For an unnerving account of concentration in telecommunication, media and internet industry in the US, and the political clout those oligopolies has amassed over the political process in the US, see Robert W. McChesney, Digital Disconnect: How Capitalism is Turning the Internet Against Democracy, The New Press, 2013.↩