Where to begin unraveling the remarkable confusion of David Bollier’s philippic against commercial enterprise? Let’s begin with his astonishing list of alleged “commons.” It includes municipal stadiums, nonprofit institutions (presumably including his employers), water, wildlife, Linux, grasslands, scientific research communities, New York City’s community gardens, and Alcoholics Anonymous. Then he asserts “What unites these highly disparate commons—from natural resources to public domain to gift economies—is their legal and moral ownership by the American people.” Immediately following a sentence that contains “New York City’s community gardens” with the sentence just quoted should have given the writer a hint that his claim is nonsense. The community gardens of New York are not owned by “the American people,” since they are managed by those (few) New Yorkers who exercise common rights over them. Nor is Alcoholics Anonymous, a voluntary association of people who help each other to overcome alcoholism and create better lives, owned by the American people. I’m not sure what—if anything—all of the items on his lists have in common, but it’s certainly not “their legal and moral ownership by the American people.”
Next, Bollier’s claims about “ownership” indicate some confusion about the term. If the term ownership connotes anything, it connotes the right to exclude.1 But the right of exclusion that’s so central to any theory of ownership is lacking entirely in the cases of the “public domain” resources on which Bollier puts so much emphasis. The legend of Robin Hood, inventions or stories on which intellectual property protections have lapsed, and the Linux operating system are simply not cases of ownership at all. It’s not that they are “owned by the American people”; no one owns them because no one can exclude another from their use. If the American people owned the legend of Robin Hood, they could stop other people (such as the English) from using it. But they can’t do that, either legally or morally. So to say that anyone “owns” the legend of Robin Hood (or Archimedes’ principle, or Jane Austen’s novels, and so on) is to reveal that one does not grasp the meaning of the term “ownership.”
Bollier does distinguish a common property resource from an open access resource, which is a minor attempt at clarity, but then fails to consider the differences between the successful cases of common property resources of the sort studied by political scientist Elinor Ostrom and resources such as the rivers, lands, and underground aquifers that have been so thoroughly mismanaged by government agencies such as the U.S. Army Corps of Engineers, the U.S. Bureau of Land Management, and the U.S. Forest Service.2 Although Bollier cites Ostrom, he shows no understanding of her work. Ostrom describes eight “design principles illustrated by long-enduring CPR [common-pool resource] institutions,” principles that are absent in most of the scenarios that Bollier envisages. For example, for norms to function effectively in governing the use of common property resources, “Individuals or households who have rights to withdraw resource units from the CPR must be clearly defined, as must the boundaries of the CPR itself.”3 In the successful cases she studied, “the population in these locations have remained stable over long periods of time.”4Commoners (those with rights to a common resource) have internalized norms over long periods of repeated interactions and expect to engage in such interactions for years to come. But “the American people” is a highly fluid group that annually absorbs millions of new members who cannot reasonably be expected to share the norms of, say, a tiny Swiss mountain village. Ostrom’s research dramatically undercuts, rather than supports, Bollier’s project.
Most remarkably, Bollier seems to suggest that Ostrom’s remarks about the necessity of communication and trust for successfully managing a common property resource should give us hope that creating common property resources on a vast scale will create communication and trust. The logical leap is breathtaking. Communication and trust are necessary conditions of successful management of common property resources, but it would be an unwarranted inference to suggest that common property resources aresufficient conditions of communication and trust—or even that they promote communication and trust. Communication and trust are normally features of groups far smaller than “the American people.” Historical evidence indicates that it is far more likely that creating vast common property resources for such large groups would undermine communication and trust, rather than create a new sense of American community. Collectivization of agriculture in the U.S.S.R. did not foster trust and communication there—quite the opposite.
Bollier writes as if defenders of property have never considered and leave no room for forms of property other than individual freehold. In fact, it is widely understood that property is multiform. That’s why so many of the great champions of property—from John Locke to William Blackstone to F. A. Hayek—have used the term “several property” to describe what they support. Individually held property is one especially prominent form among many possible forms of property, which also include familial property, joint property, partnerships, corporate property, and the kinds of common property resources described by Elinor Ostrom. Bollier treats the subject as if there is only a choice between things in the world being subject exclusively to individual property, or being subject to “ownership by the American people.” The real world is much more complicated than Mr. Bollier’s.
Finally, Bollier writes that “the commons has lived in the shadows because of the limited assumptions of conventional economics, which prefers to focus on the individual and not the collective. A market-based perspective also shows relatively little interest in ‘externalities’ (pollution, social disruptions, costs borne by future generations).” Had Bollier taken the time to read anything about the economics of property rights—beginning with Ronald Coase’s essay on “The Nature of Social Cost,” and followed by countless studies of the economics of property that were inspired by Coase’s analysis of the relationship between externalities and transaction costs—he would have found that externalities are the overriding theme in the conventional economic literature.5
I find Bollier’s essay especially disappointing because I share his concerns about such issues as the ex post facto extension of intellectual property protections beyond those specified by law (in apparent violation of the U.S. Constitution, which authorizes Congress to secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries” [emphasis added]) and the exploration of the possibilities of well-functioning property management systems for such important resources as airsheds and aquifers. Instead of serious analysis, however, Bollier offers an emotional jeremiad, made even less substantial by the use of meaningless but impressive sounding phrases such as “the corporate class,” “colonize untouched natural resources and public life,” and “textured appreciation.” The important issues he addresses deserve better, more serious treatment.
1 “The right to possess, namely to have exclusive physical control of a thing, or to have such control as the nature of the thing admits, is the foundation on which the whole superstructure of ownership rests.” Tony Honoré, “Ownership,” in Making Law Bind: Essays Legal and Philosophical (Oxford: Oxford University Press, 1987), 166.
2 See especially her Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge: Cambridge University Press, 1990). Ostrom uses “common-pool resource” when I use “common property resource,” but the terms are interchangeable in her analysis.
3 Ostrom, 91.
4Ibid., 88. As Ostrom notes, “Individuals have shared a past and expect to share a future. It is important for individuals to maintain their reputations as reliable members of the community. These individuals live side by side and farm the same plots year after year. They expect their children and their grandchildren to inherit their land. In other words, their discount rates are low. If costly investments in provisions are made at one point in time, the proprietors—or their families—are likely to reap the benefits.” Does that sound like a description of “the American people”?
5 Ronald Coase, “The Problem of Social Cost,” The Journal of Law and Economics 3 (October 1960), 1–44, reprinted in Ronald Coase, The Firm, the Market, and the Law (Chicago: University of Chicago Press, 1990). Coase, who received the Nobel Prize for his contributions to our understanding of social institutions, is hardly an obscure figure.