Intellectual Property Law

Commons in the News

By Mike Madison

Five newspapers in the Northeast are going to pool some of their newsgathering to save money, an ad hoc editorial pooling arrangement (commons) that both presages more to come and echoes other larger, more complex commons all around us.  Given that commons is one of my main research interests at the moment, one thing I can say for certain is that the editors and publishers of the papers will need to tread carefully in not alienating what readers they have left.

The Facebook brouhaha (imbroglio?) and volte-face of the last two days turns out to teach much the same lesson.  Most of the public commentary about the affair has focused on (i) inept Facebook public relations; (ii) who owns user data?; (iii) expectations of personal privacy vs. the imperatives of e-commerce; (iv) fair warning and valid contracts with consumers; or some combination of the four. 

But the real lesson of Facebook is the same lesson that those newspaper editors are about to learn:  The hard questions only appear to be “ownership” and “valid contracts.”   They are actually questions of governance, or management of a commons.  Facebook is a information commons, by which I mean a managed or structured environment where lots and lots of people pool information and lots and lots of those people access and use that information.  Facebook both provides the environment, in large part, and manages it and participates it, but the governance mechanisms are not just legal and technical (and economic).  They are social and cultural, and Facebook users were heard yesterday asserting their standing to participate in it.

The legal system in which we are accustomed to swimming has a difficult time with the commons concept, partly because it is unorthodox to think of a commons that’s “owned” by a single private company, and partly because it is unorthodox to think of a commons that isn’t “public” in the sense that everything in it is free (both unrestricted, and zero cost) to use.  The law is usually suspicious of privatized collective action; it sniffs around them with antitrust and administrative law tools.  Sometimes, we wonder if the private system is serving a state function. 

But the 21st century is filled with productive private commons, and there will be more of them, and more recognition of them, as the era proceeds.  Some commons are great things; some are problematic.  Figuring out how to sort them out and manage them effectively will take a lot of work, and more work than antitrust and administrative law alone likely can do.   (There is a conceptual link here between Facebook and Brett’s take on Google Book  Search.)  A lot of that work will be political (small p) rather than (only) legal.  Facebook might have addressed the contract law aspects of its recent Terms of Service change head on, so that users were unambiguously notified of and bound to the change.  But that approach wouldn’t deal with the governance problem; formal contracting might have killed the goose that laid the golden Facebook egg.

Technorati Tags: facebook, commons

Full post as published by Madisonian.net on February 19, 2009 (boomark / email).