Archive for January 2009
A Surfing Commons in Hawaii
The Wolfpak of Oahu manages access to the biggest waves in the world.
You can find a commons in the most unlikely places. Case in point: the clan of surfers at the Banzai Pipeline beach on the North Shore of Oahu, Hawaii. A motley tribe of musclemen maintain order and respect among the crowds of surfers vying to catch the big waves there. This social community based around a shared resource even has a name, “The Wolfpak,” and has been the subject of a documentary film, Bustin’ Down the Door, recently released on DVD.
Why would a commons form around legendary surfing waves? Because top surfers from around the world make pilgrimages to the Pipeline to test themselves against the waves. The Pipeline has been likened to the Mount Everest of surfing – a place where the best go to prove their mettle and talent. Not surprisingly, there is enormous competition in the water over who is entitled to ride which waves…. and resentment against outsiders who don’t respect the social protocols that the local surfing crowd has developed over time.
Photo by Kanaka’s Paradise Life, via Flickr, licensed under a Creative Commons Attribution-NonCommercial license.
“It’s a dangerous environment, and without a self-governing control pattern, it would just be chaos out there,” Randy Rarick, executive director of the Vans Triple Crown of Surfing competition, told Matt Higgins, a reporter for The New York Times. Another surfer pointed out that “there are serious consequences if you drop in on somebody and they got hurt, or if you wipe out and hurt yourself.”
The Wolkpak constitutes a commons because it is a social collective that manages usage of this scarce local resource that its members cherish and use themselves. They are protective of it and each other, and have evolved their own rules for the orderly, fair use of the resource and community stability. According to Higgins’ article in the New York Times sports section (January 23, 2009), members of the Wolfpak “determine which waves go to whom, and punish those who breach their code of respect for local residents and the waves.”
The Wolfpak formed about ten years ago when surfers using the beach, particularly Kala Alexander, realized there was a dangerous void of self-governance in the water. “It was crowded when I came here,” he said. “A lot of people in the water, not much respect. Where I grew up on Kauai, you respect everybody in the water, especially your elders. Don’t step out of line. We just brought that mentality over here….The code is to respect other people. People come over here and don’t respect other people. You’re going to run into problems if you do that.”
Isaiah Helekunihi Walker, a history professor who has written about the surfing culture on North Shore, noted, “For the Hawaiians, respect is an important concept, particularly when it comes to being in the ocean.” When surfers from Australia and South Africa arrived on the beach, boasting of their prowess, the locals at the Pipeline didn’t take it very well.
It is here – in the enforcement and sanctions to protect the commons – that controversy arises. Who is the more legitimate steward of the Pipeline, the local surfing fans or the state authorities who legally have the authority to manage the beach? Should the concerns of local surfers be allowed to trump those of outsiders? Whose commons is it, anyway? And what means can be used to protect the commons?
According to one surfing trade publication, a professional surfer from California came to the Pipeline and cut off a local surfer while riding a wave. The Wolfpak banished him to the beach and one of them reportedly hit him in the head. The enforcement mechanisms have at times gotten a bit out of control, with outside surfers claiming that they’ve been physically threatened and punched. “It’s kind of like mafia control in the surf,” said Randy Rarick.
In recent years, according to reporter Higgins, the Wolfpak has cleaned up its act. It has hosted an annual beach cleanup day and visited children in a nearby hospital. It apparently does not want to revel in violent episodes of its past. The Wolfpak has apparently found a way to peaceably manage usage of the Pipeline while respecting the interests of visiting surfers and conventional law and police enforcement. One might even consider the Wolfpak, in its grownup stage, as an example of how the commons and law can work together to their mutual advantage.
Standing on the shoulders of giants.
Heard this phrase before? My guess is that if you have, you attribute it to Sir Isaac Newton. Well here’s a little commons trivia for you, courtesy of Lewis Hyde, author of The Gift. I’ve paraphrased his insights.
In the seventeenth century, the idea of divine origins begins to be replaced or at least augmented by the humanist idea that creativity builds on a
bounty inherited from the past, or gathered from the community at hand. Commons. Sir Isaac Newton famously spoke of himself as having stood “on the shoulders of Giants.” The phrase comes from a letter that he wrote to Robert Hooke in 1675, the context being a debate with Hooke about who had priority in arriving at the theory of colors. Newton combines humility with an assertion of his own achievement, writing:
What Des-Cartes did was a good step. You have added much several ways, & especially
in taking the colors of thin plates into philosophical consideration. If I have seen further
it is by standing on the shoulders of Giants. [Merton 31]
The sociologist Robert K. Merton wrote a book, On the Shoulders of Giants, in which he shows that this famous phrase did not originate with Newton; it was coined by Bernard of Chartres in the early twelfth century, the original aphorism being “In comparison with the ancients, we stand like dwarfs on the shoulders of giants.” The image was a commonplace by the time Newton used it, his one contribution being to erase any sense that he himself might be a dwarf.
What I love here is the double insight, the effort to describe creativity in a commons-sense, and the journey of the description itself through the commons of knowledge and creativity. Art and knowledge are derivative and generative. We take what we know and build on it. I’m reminded of an argument I once had with a faculty member of the film department at University of Wisconsin-Milwaukee. She thought that a student’s submission of a work that copied a technique of a well-known experimental filmmaker was thievery, and showed a lack of creativity on the student’s part. I fundamentally disagreed. Not only was this student paying attention in class (a good thing), she was engaged in creativity precisely because she was taking something she learned and making it her own by applying a technique she discovered to her own content. I think that we mistakenly believe in the myth of the creative genius; the hermit locked up in a basement with paints and canvass to produce unique works of art. The truth is that art, whether creative or scientific, has never worked that way. We are all standing on the shoulders of giants.
What do you think?
Click the link below and check out her article appearing in MovieScope Magazine. I would love to know what you think about all this participatory media stuff. Do you remix media?
Post a comment, please. Share your thoughts and/or experience with remix culture.
The point is that copyright law was written for a pre-Internet age; and there are serious questions about how restrictive we want any updates to be. Heck, in the NYTimes Magazine last week Steven Pinker (Harvard College professor of psychology at Harvard University and the author of “The Stuff of Thought: Language as a Window Into Human Nature”) said information wants to be free. It’s a whole new world, and we have to find a balance between intellectual property protection, particpatory culture and the public domain (a commons!).
User-generated mashups are changing the face of copyright laws, which have to evolve to catch up with the Internet generation, said Mary Wong, an expert on intellectual property (IP).
The professor of law at the U.S.-based Franklin Pierce Law Center, said in an interview with ZDNet Asia, copyright laws are clear on protecting stolen IP such as videos and music, but enforcement reaches a murkier area when it comes to user-generated content such as mashups, which are not a direct copy of original material.
“The new generation of digital natives are manipulating content online as a form of expression…The democratization of the Internet has facilitated a remix culture, where people are not passive recipients but active creators,” said Wong.
And the openness of the Internet has further facilitated a culture of “taking”, she said. “Everyone has access [to content]. Enforcement is a global problem. It is a practical problem, because of the reach of where the content might appear. Finding [infringed copyrighted content] is harder.”
The gray area is created between the original material–that is someone else’s IP–and the “new”, composite product that comes from the mashup. “One issue the law has to deal with is this new sense of a user ‘right’,” she said, referring to that of mashup creators.
“Copyright law is a sturdy creature, always adapting–as it has from the start of the printing press,” said the professor. She noted that the copyleft and Creative Commons licenses are “great examples of the direction we are headed in”, but added that these licenses are not a unified base to build new laws upon yet because they differ in mechanics.
“Their objectives are the same, but they have different mechanisms–some have greater restrictions than others, for example,” Wong said.
“Laws need a way to catch up with changing culture. This could be in a greater recognition by the courts of the social use of user expression, or legislative change,” she said.
On the part of businesses, having a solid online business model will help prevent broadcasters from taking down every use of their content, she said. “Businesses should have a clear and robust revenue stream online. We’re not there yet.”
The Asian dimension
As Asia evolves, so will awareness and user comfort with respecting copyright laws, said Wong.
“Asia does not have a huge grasp of respect for IP. We have respect for physical property, but not so much the intangible. Western culture does have a greater respect for IP, although it is not equal to that for the physical, either,” she said.
But progress will likely come in the form of the young generation, which has been exposed to the same online content as counterparts in the West, and will likely be more in-tune with “so-called Western concepts” of IP-respect, she noted.
On Asia’s reputation for piracy and IP-infringement, she said: “It is not simply a matter of Asia versus the West. The problem [of IP infringement] is the same, and every IP-owner wants protection.”
But IP awareness will likely be affected by the broadening digital divide in Asia, too. She said the parts of Asia which are not as exposed to the Internet will correspondingly not be as exposed to such education on IP respect.
“But this is an issue we will be talking about only in many years to come,” she said.
Wong was in Singapore to speak at the 2nd Global Forum on Intellectual Property. She is also an Associate Fellow of the Intellectual Property Academy of Singapore and a member of the Singapore Academy of Law’s Technology Law Development Group, a Singapore-based think-tank for IP issues.
A lot of people ask me to explain the commons, since it is the subject of my next movie, What We Got.
I’ve posted here the section “about the commons” from onthecommons.org. If you are curious about what you read here, head over to their site. As always, I hope you will offer your own thoughts by way of the comments section, below.
The commons is a new way to express a very old idea—that some forms of wealth belong to all of us, and that these community resources must be actively protected and managed for the good and all.
The commons are the things that we inherit and create jointly, and that will (hopefully) last for generations to come. The commons consists of gifts of nature such as air, oceans and wildlife as well as shared social creations such as libraries, public spaces, scientific research and creative works.
Biopiracy: The practice where traditional knowledge of natural resources, especially medicinal and agricultural plants, is appropriated by international companies to create products, for which they are awarded exclusive rights to use under patent laws.
Cap-and-dividend: A practical solution to the problem of global climate disruption, based upon the commons principle that the atmosphere belongs to everyone. (Also known as the Sky Trust.) First articulated by On the Commons co-founder Peter Barnes in his 2002 book, Who Owns the Sky, cap-and-dividend is a response to cap-and-trade proposals in which polluters are granted permission to buy and sell pollution rights as a way to curb carbon and other emissions causing global warming. This essentially gives existing polluters ownership of the air in order to create incentives to reduce emissions. Cap-and-dividend starts at the same place by creating a cap on pollution that gradually reduces the amount of greenhouse gases that can be dumped into the air and creating a market where the right to pollute can be bought and sold. But rather than letting historical polluters reap all the financial benefits, fees that companies pay to pollute would be collected and returned to citizens in the form of a regular dividend. This is not only a more equitable way to distribute the wealth created by a commons, it also increases public support for measures to stop global climate change. For more information see Peter Barnes 2008 book Climate Solutions.
Common assets: Common assets are those parts of the commons that have a value in the market and which are appropriate to buy and sell (see “inalienability”). Radio airwaves are a common asset, for example, as are timber and minerals on public lands and, increasingly, air and water. By recognizing certain resources as common assets, it becomes natural to ask: Are the common assets being responsibly managed on behalf of the general public or a distinct community of interest? Is the capital being depleted?
Commons movement: A growing social and political movement that believes the commons is a crucial sector of the economy and society and useful prism for talking about resources that should be shared. The commons offers not only an affirmative vision of a more equitable, eco-friendly society: it also serves as a countervailing force to keep excesses of the market and government sectors in check. Some speak of an emerging commons paradigm as a new way of looking at the world, one that opens up the competitive, mechanistic, profit-centric mindset that has ruled Western civilization since the dawn of the Industrial Revolution, with a more humanistic, environmentally aware and holistic world view. A wider appreciation for the enduring importance of the commons has developed over the last eight years, especially among people deeply involved in the politics of water issues, the internet, the over commercialization of culture and public spaces. This world view is now reaching into many other arenas, including economics, the environment, social justice and numerous citizens movements around the world.
Copyleft: This refers to a license that allows free re-use and modification of creative work so long as any works derived from the original remain available on the same terms. Copyleft, formally known as the “General Public License” or GPL, was initiated by computer programmer Richard Stallman and the Free Software Foundation. By protecting the creativity and energy of the commons from private appropriation, the GPL has enabled communities of programmers to build shared bodies of code, such as free software and open source software. A similar set of licenses for other types of creative works has been devised by the Creative Commons.
Corporation: A self-perpetuating legal entity whose mission is to maximize short-term return to shareholders. In its aggressive pursuit of this mission, the corporation not only produces new innovations and efficiencies, it also displaces costs onto the environment, our communities and our personal lives (see externality).
Enclosure: Historically, this refers to the privatization of common grazing lands beginning in 15th Century England, which impoverished many peasants. Today it is used to describe the conversion of a commons into private property. Enclosure entails not just the privatization of a resource, but also the introduction of money and market exchange as the prevailing principles for managing that resource. Enclosure shifts ownership and control from the community at large to private companies. This in turn changes the management and character of the resource because the market has very different standards of accountability and transparency than a commons. (Contrast a public library with a bookstore, or Main Street with a private shopping mall.) Because of its compulsion to extract maximum short-term rents and externalize costs, market enclosure often results in the “tragedy of the market.”
Externality or illth: A social or ecological cost that is not paid by its creators. As the scope of market activity expands beyond a certain point, engulfing more of nature and daily life, it yields less and less happiness and wellbeing even as it causes more and more unintended problems. In market logic, the expanding output must be regarded as “progress” and “wealth.” In fact, the accelerating pace of the market machine is producing more “illth” — the opposite of wealth. Author Peter Barnes ( Who Owns the Sky ) has popularized this term, coined by John Ruskin in the 19th century, to describe the unintended but increasing destruction of nature, social disruptions, health problems and other (unacknowledged, unintended or disguised) costs of market activity.
Gift economy: A community of shared purpose, such as an academic discipline, whose members give time and creativity to the community and reap benefits in return. In gift communities, money is an unacceptable “currency” because relationships are rooted in personal, particular and historical experiences of each individual, and cannot be converted into cash or any other fungible unit. Despite the absence of cash, legal contracts and market exchange, a gift economy can be tremendously productive, efficient and innovative, as seen in free and open software communities, online wikis and other collaborative websites, blood donation systems and scientific research disciplines.
Inalienability: The principle that a given resource shall not be freely bought and sold in the marketplace, but shall remain intact, in its natural context. Inalienability derives from a social consensus that certain things and behaviors are so precious and basic to human identity that they are degraded if they are put up for sale. “Goods” that have traditionally been regarded as inalienable include votes, babies, bodily organs, sex, genes, living species and most aspects of nature, but market forces are increasingly challenging long-standing norms of inalienability.
Land trusts: An alternative model of land ownership in which a tract of land is owned by a non-profit organization—usually to preserve its natural assets or to maintain it as affordable housing. There are more than 1,600 land trusts in the US today encompassing 37 million acres. Land trusts provide a good example of how a commons economic model can exist outside the realm of both government and private control as a distinct sector for advancing the public good. Professor Carol Rose of Yale Law School has cited land trusts as an example of “property on the outside, commons on the inside”—meaning that the resource exists within the market system as legal property yet is managed internally according to commons principles.
Open source software: (See copyleft) Open source software is functionally similar to free software that is protected under the General Public License, or GPL, except that open source programs allow a program to be freely copied, modified and distributed, but do not require it. In addition, the open source community does not necessarily subscribe to the political agenda of Richard Stallman, founder of the Free Software Foundation, who regards the GPL as the foundation for a vision of political and creative freedom. Open source programmers tend to be more focused on the practical value of open source code in developing superior software.
Public goods: Resources that, because of their “public” nature, are difficult or costly to exclude anyone from using. Examples include lighthouses, city parks, broadcast programming and the global atmosphere. In the lingo of economists, these are “non-rival” and “non-excludable” resources. Government often steps in to pay for public goods because it is difficult to get individual beneficiaries to pay for them. But in the networked environment of the Internet, it is increasingly feasible for self-organizing groups to create and pay for public goods. Open source software is a prime example.
Public space: Any place where people are free to gather for social or civic interaction. The value of public spaces is increasingly being recognized as essential to the health of local communities and democratic societies in general. While usually defined as parks, streets and sidewalks, plazas, libraries and public institutions, the concept can also be expanded to include congenial privately owned settings such as a coffee shop, corner grocery or a plaza outside an office building. Shopping malls, which in many suburban communities function as Main Street, have stirred controversy by forbidding civic activities such as gathering signatures for petitions—a policy upheld by the courts which worries many civil liberties and public space advocates.
Public trust doctrine: A legal doctrine that says that the state holds certain resources in trust for its citizens which cannot be given away or sold. Public trust doctrine has its origins in Roman law, which recognized that certain resources such as fisheries, air, running water and wild animals belong to all. Under the doctrine of res communes, the king could not grant exclusive rights of access to a common resource. The point is that there is a clear distinction between common property (which belongs to the people) and state property (which can be controlled and mismanaged by government).
Tragedy of the commons: Title of an influential 1968 essay by biologist Garrett Hardin, which argued that overuse of common resources is a leading cause of environmental degradation. This was interpreted by some, especially economists and free-market libertarians, to mean that private ownership is preferable to the commons for the stewardship of land, water, minerals, etc. Yet in recent years many have challenged this view on both empirical and philosophical grounds. Professor Elinor Ostrom of Indiana University has been a leading figure in demonstrating the practical utility and sustainability of commons governance regimes, particularly in developing countries. Other analysts, such as Professor Yochai Benkler of Harvard Law School, have shown how people in online commons can indeed collaborate sustainably to produce and protect valuable resources. This suggests that the vision of human behavior implicit in the tragedy of the commons metaphor is not as immutable as many economists assert, and that collective management is an eminently practical governance strategy in many circumstances. The tragedy of the “anti-commons” is now frequently invoked to describe the problems associated with excessive privatization and fragmentation of property rights, such that collective action for the common good is thwarted. An example is the proliferation of patents on bio-medical knowledge that impedes research on cures for malaria, or the proliferation of copyrights in film and video that prevents documentary filmmakers from clearing the rights to images for use in new films.
Trust or stakeholder trust: A legal institution for protecting the commons and managing any assets that may arise from it. If the corporation is the preeminent institution of the market, the trust is the premier institution of the commons. The managers of a trust, the trustees, have clear legal responsibilities to manage its resources on behalf of the beneficiaries. This includes strict fiduciary responsibilities, transparency and accountability. (See land trusts)
Value: Economists tend to regard “value” as a quantifiable object with a price tag. But as commoners realize, “value” can also be something intangible and not available for sale. An example is the social satisfaction of belonging to a community and contributing to a shared goal. A commons can also create economic value as efficiently as a market; examples include Wikipedia, the online user-generated encyclopedia, and Craiglist, the online advertising service. The difference is that a commons usually does not convert its output into a marketable commodity.