Unfortunately, the benefits to the public are often more nominal than real. Drug makers frequently use their patents to extract exorbitant prices for life-saving drug compounds. Tech companies claim exclusive rights to common “business methods” and mathematical algorithms embedded in software. The record and film industries have expanded their copyright monopolies in numerous ways at the expense of the public domain and fair use rights.

As practiced, in short, property law tends to expand private prerogatives and suppress public benefits. Its priorities — to turn ownership into money — often trump those of democracy, community, free expression and life outside of the marketplace.

For example, property law conveniently ignores the role of the commons in adding value to private ownership. Its champions generally fail to acknowledge the public system of law that enforces all those private contracts; the social trust engendered by regulation which in turn enables markets to function well; the ecological commons that are used as free waste dumps; and the civil infrastructure of roads and bridges that enable commerce to take place in the first place.

So private property rights are extolled as the most powerful engine for “progress.” — and soon the idea takes root that the stricter and more absolute those rights, the better.

It is the conceit of a new book, Property Outlaws, that the dissenters to this catechism play an invaluable role in making property law more socially responsive and functional. Or as the subtitle of the book puts it, “how squatters, pirates and protesters improve the law of ownership.” Property Outlaws is the rich, neglected history of conscientious objection to property law.

The authors, Eduardo Moisés Peñalver and Sonia K. Katyal, are professors of law at Cornell Law School and Fordham Law School, respectively. In their telling, the people who challenge the broad scope of property laws through deliberate protests are a highly useful and indeed, honorable force for good. They are the ones who have shown great personal courage in forcing property law to become more responsive to evolving norms. They are the ones who dare to assert that property owners have certain affirmative responsibilities to larger social and democratic values.

Peñalver and Katyal start their book with the story of four African-American college students who sat down at the lunch counter in a Woolworth’s store in Greensboro, North Carolina, in 1960, seeking to be served. This nonviolent protest was not just an attempt to win equal civil rights; it was also a challenge to the strict prerogatives of property law.

The students wanted to prohibit a private property holder (Woolworth’s) from being able to discriminate on the basis of race. In the end, of course, the civil rights movement helped achieve this change. This principle has become so integrated into American values, in fact, that it is difficult for many to appreciate that the change was catalyzed by “property outlaws” — dissenters who were willing to make a public spectacle of themselves by protesting the (overly broad) privileges of private property.

Peñalver and Katyal deserve great credit for excavating this little-explored history of subversives trying to remake property law. It is surely easier to strike a triumphalist pose about the myriad (materialist) virtues of private property, and to ignore how social struggles helps incorporate new social values into property law.

Peñalver and Katyal introduce a number of conscientious objectors for our consideration: the peer-to-peer file sharers who are challenging the record industry’s failure to offer digital distribution of music, and the Norwegian hacker who landed in jail after reverse-engineering Hollywood DVDs so that they could run on a Linux-based computer.

The authors also describe the battles of HIV-infected people against companies who claim exclusive patents (and charge expensive prices) for life-saving AIDS drugs. One chapter is devoted to the students who discovered software flaws in Diebold electronic voting machines and posted internal corporate documents confirming the flaws — only to be accused of violating copyright law by posting the documents on the Web.

In each instance, as the authors explain, social protest is a means by which property law is improved and reinvigorated. Since property law is inherently conservative (its stability and predictability is regarded as a virtue by owners), it invariably falls to troublemakers to call attention to the anti-social limitations of property law and to demand reforms.

In our time, property outlaws focus much of their attention on copyright, trademark and patent law, especially as they apply to activity on the Internet. They ask why the public’s “fair use” rights to excerpt and re-use existing copyrighted material should be so limited. They question the exclusive patent protection for lifeforms, genes and human tissue. They challenge trademark limitations on how imagery and design may be used, even for public commentary and expression.

Peñalver and Katyal introduce a number of useful distinctions — a vocabulary of sorts for understanding property outlaws. For example, some dissenters object to the very idea of information as private property. Others simply oppose the broad scope of copyright law. They think that fair use should not be so constricted, or that the terms of copyright law ought to be shorter (thus enabling works to enter the public domain more rapidly).

The authors propose a useful distinction between the property outlaw and so-called “altlaws”: “Whereas the outlaw might disagree with the concept of intellectual property altogether, an altlaw might seek simply to expand privileges like fair use in order to allow more access to nonowners.”

Protests against private property are a conspicuous form of social and political communication, note Peñalver and Katyal, because they enable people to “send a message” that is not effectively communicated otherwise. That was the point of the Woolworth lunch counter sit-ins, and that was the point of anti-globalization protesters smashing the windows of Starbucks stores. “There is a difference between talking about something and being confronted with an actual example of it,” write Peñalver and Katyal.

They note that our “lived experience of the law” is relevant to how we make legal and moral interpretations of the law’s justice and injustice. “Property outlaws are therefore able to offer a particularly concrete vision of their alternative conception of the law.” Violating property law becomes a vehicle for expressing a different cultural role for property. The civil disobedience becomes an appeal to the general public to change the law.

I recently encountered a great example in the form of Isaac Hacksimov, a hackers’ group based in Madrid, Spain. Isaac Hacksimov sent a certified fax notifying the police of their intention to publicly download files — and then they did just that in front of a police station.

Their point was to dramatize in a noisy public way that file-sharing is legal in Spain. (Legislators and culture industries were claiming that it was illegal, in order to win support for legislation that would actually make it illegal.) The hacktivists essentially dared the police to arrest them, which they didn’t. Point made. The public perhaps began to see property rights in digital files in a different light. (A video of the demo can be seen here .)

“We have needed this book for a long time,” writes copyright scholar Siva Vaidhyanathan on the back cover of Property Outlaws. Indeed. Civil disobedience has a long and venerable history. It’s about time that its relevance to so-called intellectual property is made clear, because the scope of copyright, trademark and patent law represents one of the great cultural battlegrounds of the future.

1. The Copenhagen Climate Change Protests

On October 24, 2009, hundreds of thousands of people around the globe came together for the 350 Day of International Climate Action, asking their governments and nations to embrace a more sustainable way of life. They shared the same purpose, but interpreted it in their own locally relevant way all around the world, from Sydney to Hanoi to Mumbai.

Then in December, thousands of individuals and groups converged on Copenhagen for the UN’s Climate Change Conference, meeting each other again or for the first time, engaging in conversations and debates that are unprecedented in human history.

The event made it clear that we still have a ways to go: the social movements that came to Copenhagen don’t yet have a unified or coherent alternative to present, except for a generalized devolution to re-localized economies, and a demand for “system change, not climate change.”

And yet these days of action gave a global voice to tens of thousands of local efforts that have had a hard time being seen or heard, but are unmistakably giving shape to a new, shareable way of organizing both society and daily life.

2. Facebook Membership Exceeds Population of the United States

When Shareable first launched in October 2009, Facebook had roughly 300 million members, equivalent to the population of the United States. By December, that number reached 350 million-if Facebook were a country, it would be third in population, right behind China and India. That same month, the number of tweets passed 6.8 billion, exceeding the world population.

Why does the rise of social media matter?

Let’s start with concrete examples. Social media helped get President Obama elected, and in 2009 politicians started announcing their candidacies to their “friends” and followers over Twitter and Facebook first, in advance of news conferences. In Iran, social media enabled anti-government activists to bypass state-controlled media and speak to the world; indeed, mainstream media around the world relied on Twitter and Facebook as sources, and the U.S. State Department actually asked Twitter to postpone a scheduled service outage so that Iranian voices could continue to be heard.

The democratic possibilities suggested by social media are influencing the possibilities we see in other spheres of life. “The people who create Facebook not only believe in what they’re doing but are on the leading edge of Generation Open,” writes open source activist Chris Messina in Shareable.net.

“It’s about having all your references come from the land of the internet rather than TV and becoming accustomed to-and taking for granted-bilateral communications in place of unidirectional broadcast forms. But it’s not just that the means of publishing have been democratized and the new medium is being mastered; change is flowing from the events that have shaped my generation’s understanding of economics, identity, and freedom.”

3. The Obama Administration’s Open Government Directive

In recent years, the Government 2.0 movement has advocated for local, state, and federal agencies to adopt social media and open source technologies.

The movement’s ideas didn’t get much traction with the Bush administration. Then the new Obama administration appointed Vivek Kundra as the White House’s first information chief.

“My first approach coming into the public sector here in D.C. was to take as much data and put it out in the public domain as possible,” said Kundra. “I had three goals in mind: No. 1 was to drive transparency; No. 2 was to engage citizens; No. 3 was to ensure that we were lowering the cost of government operations.”

Under Kundra’s leadership, the White House took small steps like putting 216 real-time feeds on its website and switching to open-source platform Drupal.

But on December 8, 2009, the administration took a giant leap, issuing the “Open Government Directive,” which ordered executive departments and agencies to identify and publish online in an open format at least three high-value data sets; create an Open Government web page, and respond to public input received via that page; and to develop and publish an Open Government Plan that will describe how they will improve transparency and integrate public participation and collaboration into its activities.

Will the directive be followed and its promise fulfilled? It’s certainly a step in the right direction.

4. The Pirate Party Emerges in Europe

The Swedish Pirate Party was founded in 2006. Its goals: to open up copyright and patent laws, strengthen the right to privacy on both the Internet and in everyday life, and foster transparency in government.

By May 2009, its membership surpassed those of the Green Party, the Left Party, the Liberal Party, the Christian Democrats, and the Centre Party, making it the third largest political party in Sweden. In the 2009 European Parliament elections, the Pirate Party received over seven percent of the total Swedish votes, which gave it 18 seats in the Swedish parliament and two seats, filled by Christian Engstrom and Amelia Andersdotter , in the European parliament.

“We are very strong among those under 30,” said Engstrom. “They are the ones who understand the new world the best. And they have now signaled they don’t like how the big parties deal with these issues”-meaning issues of Internet sharing and privacy.

Pirate Parties have emerged in 33 other countries-including the United States-cooperating through the Pirate Party International.

Outside of Europe and North America, citizens voted decisively for a shareable society in Bolivia, where “buen vivir,” or well being, has been enshrined in the new constitution; battled to “Leave the Oil in the Soil” in Ecuador; and advanced “free culture” politics in Brazil.

Even if every one of these efforts ultimately fades away, they have already succeeded in pushing twenty-first-century ideas of transparency and sharing into their governments.

5. The Complete Streets Movement

For most of human history, everyone shared the streets. They were a commons where kids played and neighbors chatted.

Today, legally speaking, the streets still belong to us all; but in reality they have become the exclusive property of motorists. And when traffic proliferates, streetlife disappears and our lives suffer, too-crime rises, pollution increases, social connections decline and we have fewer transportation options.

Thankfully, the Complete Streets movement has emerged to reclaim America’s roads for everyone: pedestrians, bicyclists, transit riders, the disabled, old people and children, as well as drivers.

Local organizations and the National Complete the Streets Coalition are pushing for new policies that make streets safe, accessible and convenient for all. The Complete Streets Act is now before Congress, and nine states and many localities have recently enacted complete streets legislation. Meanwhile, in 2009 the Obama administration quietly infused cities with funds for public transit, green building and retrofitting, inter-agency sharing, and education, creating new possibilities for renewing the urban commons.

6. Rise of a Sharing Industry

This year saw the founding of services like Rentalic, Share Some Sugar, and Neighborgoods-all of which rely on the web and mobile technologies to facilitate neighborhood-level sharing. In 2009, the ridesharing service Zimride allied itself with the carsharing service Zipcar, both making extensive use of social media and mobile technologies.

Similar synergies emerged in citywide bikesharing programs: The Spanish company Onroll, for example, runs bike rental and return in 28 cities through text messaging. A company called PlanetMetrics created software that allows “retailers, product manufacturers, and consumer packaging manufacturers to see their supply chain carbon emissions and easily identify ways to reduce the footprint of their products or services”-often by sharing resources.

Meanwhile, architects, urban planners, and real estate agents are starting to talk about “open source” homes and streets, and they’re using social media tools to open up planning processes. Writers and publishers are experimenting with a range of shareable platforms, from Cory Doctorow’s Creative Commons book launches to one project (launched this year by former Punk Planet editor Dan Sinker) that shares short stories on cell phones.

Zipcar founder Robin Chase sees cross-platform, cross-industry sharing as the wave of the future. “Thanks to technology, sharing transactions are easy and low cost,” says Chase in a Shareable.net Q&A.

And the demand for sharing is rising as prices go up and budgets fall or stagnate. Innovators are working every day at exploiting the possibilities offered by mobile technologies to meet the needs and solve the problems of the market.

7. Elinor Ostrom Wins the Nobel Prize in Economics

Sharing is widely seen as a virtuous trait on the personal level, but naive and impractical on the larger scale of economics. For decades, the most influential economists have championed private property and the individualized pursuit of wealth as the path to progress.

So it came as a shock this year when Elinor Ostrom-a political science professor at Indiana University whose work examines how people collectively manage natural resources-shared the Nobel Prize for Economics.

Her research refutes the long-held theory (“The Tragedy of the Commons”) that private property is the only way to protect finite natural resources such as grazing lands, water resources or forests from overuse and degradation. Ostrom’s field work in Switzerland, Nepal, Kenya, and Guatemala proves that communities routinely create their own systems to preserve common resources.

Her prize is a ringing endorsement that cooperation for the common good is a legitimate economic strategy.

8. The Emergence of an Equally Shared Parenting Movement

Most items on this list involve governments, technology, business: big-picture, traditionally male domains.

What about sharing at home? The idea of shared parenting is not new; for decades, feminism has pushed men to do more around the house.

But Father’s Day 2009 saw the emergence of a new generation of fathers promoting the shared parenting ideal along with women. Through a blizzard of media coverage in outlets that ranged from USA Today to NBC News to NPR, male writers and activists asked other men to share the joys and burdens of parenting with the women in their lives-not out of guilt, but because they have found sharing at home to be a more meaningful and healthier way of life.

The number of 2009 books that tackle this topic from both male and female perspectives is staggering: Manhood for Amateurs, Bad Mother, The Daddy Shift, DadLabs: Pregnancy and Year One, Home Game, One Big Happy Family, Men and Feminism, and Getting to 50/50, to name a few. And the shared parenting ‘zine Rad Dad won Utne Reader’s 2009 Independent Press Award for best ‘zine. (Coming next month: Equally Shared Parenting: Rewriting the Rules for a New Generation of Parents, by Shareable.net contributors Marc and Amy Vachon.)

This was also the year that social scientists (such as Steven Greene and Laurel Elder) discovered new links between sharing at home and shareable social attitudes, suggesting that how we structure our family lives and raise our kids might be key to gradually building a more shareable society.

9. The Health Care Debate

Everyone agrees that the health care situation in America is a mess. Among industrialized nations, we rank at the top of wealthy nations for health care costs and near the bottom for health care quality.

But the 2009 debate about health care reform revealed deep fissures in American ethics and morality, pitting shareable, commons-based thinking against its opposite. In our view, it was an uneven debate-Republicans articulated a clear philosophical vision of heath care as privilege that each individual is responsible for obtaining, while Democrats were too often muddled in saying why we should expand health care to include the approximately 46 million Americans who don’t have it.

What was missing in this debate? The idea that health care is commons, something all people should share, just the same as air, water or other things essential to life. Looking at the health care debate from a commons perspective would have made a number of things very clear:

1) We have a moral obligation to ensure that all citizens have access to quality health care, whether through for-profit companies, non-profit cooperatives, or government programs.

2)Government funding for health research should not become the private property of pharmaceutical and other companies; it should be offered to the public at low costs.

3)In the age of H1N1 and SARS, our health depends upon the health of everyone else, so we imperil ourselves when others can afford to see a doctor.

Looking ahead to 2010, the challenge now is to articulate the idea of health care as something that everyone should share, like police and fire protection, parks, transportation facilities, and schools. This is a slow, even glacial process, one that involves building a sharing mindset on the ground level, in our daily lives, and then works its way up, from the ways we design our streets and institutions to how we run our businesses and government.

10. The First Global Meetings for a Shareable World

Around the globe in 2009, people met to discuss how to build a culture and economy based on sharing.

In January, 2009, participants of the World Social Forum in Belem do Para, Brazil, launched “an international mobilization campaign to reclaim, protect and re-create the commons,” complete with manifesto that has been translated into seven languages (and they’re looking for more, FYI!).

The following July, leaders came together in Germany for the Crottorf Consultations on the Global Commons.

In September, the World Commons Forum met in Salzburg, Austria.

In October, participants at the Free Culture Forum in Barcelona created the “Charter for Innovation, Creativity and Access to Knowledge.”

In December, James Quilligan and Lisinka Ulatowska initiated the creation of a UN lobby for global governance of the commons, a which they intend to repeat May 3-14 in 2010.

And at a conference in Manchester, England, on November 3, participants discussed new distributed infrastructures for manufacturing, based on shared designs.

Will all these meetings add up to a new global movement for sharing and the commons? It’s too early to say, but we hope so.

CONTRIBUTORS: Compiled with the help of Rachel Botsman, Chris Carlsson, Neal Gorenflo, Michel Bauwens, David Bollier, Silke Helfrich, and Jay Walljasper.
 
 
This first appeared on the website Shareable.net

But is it? Perhaps our biggest problem is the suffocating strictures of conventional wisdom and our lack of imagination.

For example, why not consider starting state banks? If Republicans are going to blast any government action, no matter how innocuous, as “socialism,” why not make the most of it? Why not actually recoup some of the benefits of taxpayer money for taxpayers themselves? Now there’s a radical idea!

The Bank of North Dakota is getting a lot of attention these days for precisely that reason. As a recent Associated Press story noted, “Gubernatorial candidates in Florida and Oregon and a Washington state legislator are advocating the creation of state-owned banks in those states. A report prepared for a Vermont House committee last month said the idea had “considerable merit.” Liberal filmmaker Michael Moore promotes the bank on his Web site.”

Just last week, the president of the Massachusetts state senate called for a commission to study whether Massachusetts should emulate the North Dakota bank and move its funds from money management firms (which collect a fee for their services) to a state bank.

The Bank of North Dakota was started in 1919 when out-of-state bankers and grain dealers were manipulating markets and credit to farmers in the state. In effect, state farmers were held captive by private interests, with serious harms to the ability of farmers to buy and sell crops and finance farm operations.

To help loosen the grip of private power, the state legislature created the Bank of North Dakota. For creditworthy projects, this state-owned bank takes a stake in loan packages, which reduces the levels of risk that private, commercial banks must assume. It makes direct loans to South Dakota farmers, students and businesses at reasonable rates, and it acts as the repository for the funds administered by all state agencies.

When the economy gets bogged down and commercial banks are disinclined to lend, the Bank of North Dakota is a ready, reliable alternative. It makes money as the bank for taxpayer funds while making loans to state citizens, which helps keep the (state) economy humming.

What’s not to like? A state banks produces a less volatile credit market with greater social equity and lower banking costs!

At a time when the economies of most states are dismal, the economy in North Dakota is doing very well indeed. Unemployment is only 4.4 percent and there is a state budget surplus. Now, there are certainly many “exogenous” factors to explain this state of affairs, but a state bank is certainly a stabilizing, constructive influence. It lets taxpayers recoup greater margins from their own tax monies and enjoy greater access to credit in periods when commercial banks are skittish about any lending.

While commercial banks may not like even the whiff of competition from a state bank, such competition is minimal in this instance. The Bank of North Dakota has only one office, and it does not offer retail banking services. Yet even in this restricted role, the bank clearly benefits the citizens of the state.

Last year, the Bank of North Dakota had profits of $58.1 million (on a loan portfolio of $2.67 billion), which was the sixth consecutive year of record profits. Over the past decade, the bank has channeled about $300 million to the state treasury, where it supplements the budget of the state government. Not too shabby.

Although the state earns about 0.25 percent less interest on funds deposited in the Bank of North Dakota than in commercial banks, it does not pay state or federal taxes. Nor does it pay deposit insurance; essentially the state of North Dakota is the guarantor of funds: a great way for taxpayers to leverage their collective equity for collective benefit. (If government is going to act as a guarantor for banks, why not reap some margin from doing so?)

Because the Bank of North Dakota is not obliged to maximize returns for private investors, but to serve the common good — within the bounds of responsible banking practices — it can spend time and energy trying to make deals work rather than summarily rejecting them as too risky or not lucrative enough. After all, the bank realizes that putting together a successful loan package could have enormous effects on community development — something that is lesser priority for commercial banks. As a result, the Bank of North Dakota is often willing to take extra steps to try to make local development projects work.

Ah, but then, there’s that nasty accusation: “socialism”!

I continue to be perplexed by the crazy reality that any time government tries to act for the common good, outside of military circumstances, conservatives rise up to deride it as socialism. The clause in the U.S. Constitution mandating that government “promote the general welfare” strikes me as pretty darn American. Where is it written in our founding documents that the public interest can only be served by letting private interests have full sway — often monopoly or oligopoly control — is the only way to actualize the general welfare?

Of course, the sloganeering is just a preemptive attempt by insecure bankers to prevent innovative, public-spirited solutions from gaining a toehold. It resembles the banking industry’s shameful efforts to shut down government’s role in making student educational loans.

North Dakota, you are an inspiration! Here’s hoping our current financial crisis is the mother of a new wave of innovation in the states.