The obvious solution is private investment. Or at least, that’s the only solution that the Times explores (notwithstanding a misleading headline on the online version of the story, “Cities Debate Privatizing Public Infrastructure”).

Anderson supplies no critical analysis of why governments and politicians are failing to make needed infrastructure investments, or how government might pursue public-spirited alternatives to private equity. Instead, we hear Norman Mineta, a former U.S. transportation secretary and now an adviser to Credit Suisse, blandly explain, “Budget gaps are starting to increase the viability of public-private partnerships.”

The Times story amounts to a hot tip to the investor class: “Vulnerable public assets await your predatory attention. Big ROI is assured!”

Photo, “Bay Bridge Silhouette,” by Thomas Hawk, via Flickr, licensed under a Creative Commons BY-NC license.

Republicans and investors have long railed against “big government” while enjoying government’s “liquidity backstopping” (Bear Stearns, Fannie Mae, Freddie Mac) and government borrowing to finance reckless foreign wars. Now that such bleeding of government has led to crumbling infrastructure, Wall Street, in a fine thank you to its benefactor, wants to go in for the kill. Groups like Goldman Sachs, Morgan Stanley and the Carlyle Group have amassed some $250 billion to take public infrastructure private.

Standing ready to help them are politicians who have abandoned their commitment to government except as a tool for military aggression and a way station to lucrative private employment. Such politicians are only too ready to enter into “partnerships” that traduce the public interest. The Anderson article gives such politicians plenty of reason to feel complacent. It offers sales pitches from the executives of investment banks and ideological pap from the libertarian-minded Reason Foundation. The privatization of public roads and bridges is cast as a brilliant, natural innovation. Anderson ignores the compelling economic and public-interest reasons for managing and financing public infrastructure through government.

As it happens, Phineas Baxandall, a senior tax and budget analyst at U.S. PIRG, offered an extensive analysis of these very issues in an essay here on OntheCommons.org a few months ago. His piece was based on a report on the subject that he had previously written for U.S. PIRG. Baxandall makes a number of points that Anderson ignores entirely:

Governments can borrow upfront sums at substantially lower cost than can private companies. A private entity will have higher capital borrowing costs and must divert some revenues to shareholder profits. So even at its most basic financial level, privatization is not advantageous to the public.

Perhaps even more than these fiscal problems, long-term road contracts pose a variety of serious threats to the public interest. These include fragmentation and a loss of public control over transportation policy, and an inability to prescribe future needs in contracts signed decades earlier… For example, some privatization contracts explicitly limit the state’s ability to improve or expand nearby roads. Private investors fearing that improved free roads would compete with their paying traffic, have obtained non-compete clauses in California and Colorado, and to a lesser extent, in Indiana.

Instead of examining such issues, Anderson merely notes the political backlash that some politicians have suffered. After Indiana Governor Mitch Daniels granted a 75-year lease on a state road for $3.8 billion, drivers began to sport bumper stickers that read, “Keep the toll road, lease Mitch.” Without further facts, the article makes it seem as if Indiana drivers are a bunch of ignorant yahoos who stupidly oppose taking Wall Street’s money.

Indeed, Anderson makes it seem slightly insane not to privatize infrastructure. She writes: “And then there is the odd romance between Americans and their roads: they do not want anyone other than the government owning them.”

This is followed by a self-serving quote from the head of infrastructure investment banking at Credit Suisse, who breathlessly warns, “There’s a huge opportunity that the U.S. public sector is in danger of losing. It thinks there is a boatload of capital and when it is politically convenient it will be able to take advantage of it. But the capital is going into infrastructure assets available today around the world and not waiting for projects the U.S. the public sector [sic] may sponsor in the future.”

Behind all the genteel business-speak, allow me to offer a plain-speak translation of what the New York Times business section declared today:

“Hurry, hurry, hurry! Step right up and sell off your public infrastructure treasures financed by generations of previous taxpayers! Give them to Wall Street – whom you just bailed out at discount prices – and let them earn fantastic, guaranteed rates of return for decades to come while cutting amenities and ignoring evolving public needs. You poor schlumpy taxpayers can continue to shoulder the high-risk, long-term investments. And if any of those public assets begin to look attractive – say, the Internet, wifi spectrum or federally financed drug research — why, we’ll be sure to swoop down and be the first take them away from you. After all, we have more money and better access to your elected leaders better than you do!”

The New York Times is a great institution, but can we please shed the “liberal” moniker that is so often attached to it? A precious commons is threatened by enclosure, and all we hear is cheering.

But in a surprising instance of man-bites-dog, the people of Montana have fought the privatization of the phrase “the last best place” – and won. With help from Montana Governor Brian Schweitzer and Senator Max Baucus, the U.S. Senate is expected to pass legislation this year that would prohibit the Commerce Department from granting a trademark for that particular phrase. This means that the people of Montana, the State of Montana and small businesses throughout the state will be able to refer to their state as “the last best place.”

Photo by Stuck in Customs, via Flickr, licensed under a Creative Commons BY-NC-SA license.

The controversy had its beginnings in 1988 when a professor of writing at the University of Montana, William Kittridge, and Annick Smith, published an anthology of Montana writers called “The Last Best Place.” The phrase had such an immediate resonance with people in the state that everyone from real estate brokers to motels to the state tourist office began using the phrase to describe Montana. It became a way of expressing one’s identification with and affection for this vast state of enormous natural beauty and its one million inhabitants.

Enter Las Vegas businessman David E. Lipson. One of his businesses, according to one reporter, tried to obtain a trademark on the phrase. He wanted to use it to market a variety of his businesses, including The Last Best Beef. The trademark application was so broad, says a Washington trademark lawyer cited by the New York Times (August 17, 2008) that it would have given Lipson a “de facto monopoly” on use of the term. In 2004, Montana Senator Conrad Burns tried to slip an amendment into a budget bill to prevent the registration of the phrase as a trademark. But Lipson challenged the bill in court. He won at the district court level and then lost on appeal.

Now, to put the matter to rest and prevent any future challenges, Senator Baucus has introduced a stronger, more ironclad version of the legislation that has now passed in the relevant Senate and House Committees, and is expected to become law.

Perhaps there is a lesson in all this. Why shouldn’t other popular expressions be granted some sort of immunity from corporate privatization? Why should Nike, McDonald’s, Coca-Cola or Kodak be able to march in and legally “steal” for itself a phrase or image that morally belongs to the people, or some distinct collective, who gave it social currency (and thus cash value) in the first place?

Among the world’s burning issues, the deficiencies of trademark law in protecting socially created value may not be at the top of the list. On the other hand, protecting the symbols of identity and community pride is no small matter, either. Just as the citizens of Montana.

Still image from YouTube video by Stephanie Lenz.

With the high-handed arrogance to which copyright holders have become accustomed, Universal Music sent a cease-and-desist letter to a Pennsylvania mother who had uploaded a 29-second video of her toddler dancing to a garbled Prince song playing in the background. In a rare turn of events, the mother, Stephanie Lenz, sued Universal for sending her a meritless “takedown notice.” She said the notice harmed her fair use and free speech rights, and she wants damages in return.

“I was really surprised and angry when I learned my video was removed, Lenz told the Electronic Frontier Foundation, which helped her bring her lawsuit. “Universal should not be using legal threats to try to prevent people from sharing home videos of their kids with family and friends.” EFF staff attorney Corynne McSherry said that “Universal’s takedown notice doesn’t even pass the laugh test. Copyright holders should be held accountable when they undermine non-infringing, fair uses like this video.”

Universal ultimately declined to argue that the video wasn’t fair use. But the company did argue that its mere assertion of a copyright violation should be sufficient justification for sending a takedown notice. Universal did not want to have to make a “fact-intensive inquiry” before sending out a notice, presumably because that would be too costly and time-consuming. And besides, Universal implied, it knows what is a copyright infringement. (Or in this case, Prince himself, who by one news report was directly involved in instigating the takedown notice in the first place.)

In other words, Universal Music wants to place the burden on individuals to vindicate their fair use rights when confronted with large corporations with armies of lawyers making unilateral assertions. Talk about ‘let’s go crazy’!

Federal judge Jeremy Fogel implicitly rejected this scenario and insisted that companies are perfectly capable of making fair-use determinations before they send out takedown notices. The judge’s ruling is a cold slap in the face for corporate copyright holders, who routinely threaten individuals with groundless cease-and-desist letters and act as if fair use is a legal triviality. By refusing to dismiss the case – and by squarely affirming the importance of citizens’ fair use rights – Judge Fogel delivers a welcome message that copyrights are not sweeping and absolute. The public’s fair use rights matter. Further evidence that fair use may be getting its groove back.

The film, from Pixar/Disney (!), is the story of a sad, cute robot/trash compactor, the only apparent creature left on an abandoned Earth. WALL-E has been programmed by his creator, the Buy n Large Corporation, to clean up the monumental, crumbling mess of consumer crap strewn about by the human race. A century earlier, in the 21st Century, as Earth became uninhabitable, humanity decamped to a vast space colony that now aimlessly roams a distant galaxy. In the apocalyptic gloom that is now Earth, Wall-E dutifully stacks neat cubes of compacted trash into towering skyscrapers. (WALL-E stands for “Waste Allocation Load Lifter—Earth Class.)

Earthlings live in a manmade space environment that resembles a mall, tropical resort and freeway rolled into one. People spend their lives reclining in hovering Barcaloungers looking at translucent TV/computer screens propped up in front of them. They constantly sip Big Gulp sodas, gossip about celebrities, buy things and behave like sheep whenever the hear the voices of disembodied computers (think “HAL” in 2001) and the CEO of Buy n Large, the mega-corporation that used to govern Earth and now runs the floating space colony. (The CEO – the only live-action character in the film – is played to perfection by Fred Willard, who once specialized as the sleazy talk-show sidekick on “Fernwood 2Nite.”) Everyone is an obese, inert blob who can barely move.

I cannot recall a movie that so deftly lampoons and laments in one seamless narrative the sad, corrupt state of modern market culture. To be sure, the film’s message is delivered in the guise of a humorous cartoon – the preferred vehicle for messages that are otherwise too hot to handle. No film with WALL-E’s devastating themes could ever have gotten past the Hollywood gatekeepers unless it were disguised as some sort of kiddie fare – “good fun.” A frankly adult version of the film’s themes would be seen as far too depressing, political and controversial. And indeed, conservatives have predictably criticized the film.

What gives WALL-E its poignant charm – despite its heartbreakingly bleak premises – is the earnest resourcefulness and integrity of WALL-E and his almost-pathetic infatuation with Eve, a sleek, zippy, aerodynamic cylinder-robot also owned by the Buy n Large Corporation.

One day Eve arrives on Earth to investigate whether it has any viable lifeforms and therefore whether the “ghost ship” of humanity can return to Earth. It turns out that Wall-E had recently discovered a small green sprout of a plant, which Eve seizes. When Eve suddenly zooms off with the plant to notify the Buy n Large Corporation that Earth can now be re-colonized, WALL-E desperately tries to follow. (Eve stands for “Extraterrestrial Vegetation Evaluator.)

WALL-E is in love. She is the first “living” creature that he has seen in decades. The rest of the film revolves around WALL-E’s chase and courtship of Eve, and their adventures as “rogue robots” trying to save humanity from its narcoleptic existence.

The two robots are barely human, but, in this sci-fi universe, they are the most caring and humane creatures around. People have become slug-like blobs with no independent will, zest or love. By contrast, WALL-E takes immense childlike pleasure in the castoff emphemera of consumer culture that he finds while cleaning up the planet. He carefully stores and cherishes battered Rubrik’s cubes, elf dolls and cigarette lighters before trash-compacting everything else. He repeatedly watches a 1940s Hollywood musical film on an ancient videotape, which instills in him a longing to fall in love. WALL-E acts as a brave, sad counterpoint to the utter devastation of the Earth and the affectless humans who have become consumer-zombies.

This film doesn’t preach to make any points. It doesn’t need to. Kids immediately understand what’s going on, and adults do not feel as if it’s “just a kid’s movie.” It is a tribute to both the artistry of the film and its critique of consumer/corporate culture that WALL-E has grossed $267 million in the two months since its release. (There’s big money to be made in depicting alienation with modern consumerism!) My only complaint is that the film should probably have a PG, not a G, rating; I found it plenty disturbing.

The one thing the film does not tackle is how exactly humanity re-colonizes and revives the Earth. That’s when the film ends. Clearly that is a tale for another day. But one thing is clear: it will require another order of imagination entirely, something that goes beyond anything the Buy-N-Large Corporation has to offer, to save humans from their nightmarish exile in a Total Market Existence. They will need to find new ways to cooperate to save the small, green plant that WALL-E has improbably salvaged, and which is the uncredited centerpiece of the film: life.

Even the most ardent free marketer would not go so far as to say that Bill Gates or T. Boone Pickens has the right to own the oxygen we breathe or the words we use. Although some forms of water privatization and genetic patenting have become issues, popular opinion still demands the fundamentals of life should be shielded somewhat from the realm of buying and selling. (That’s why prostitution and the selling of organs for transplant are illegal most places.)

With one notable exception: food. As essential to our lives as air or water, food nonetheless has been widely accepted as a private commodity. It is grown, processed, packaged and sold for a profit, usually by large corporations. Few look upon it as a commons, of which everyone rightly deserves a share.

But for more than 35 years, one woman has courageously carried the message that food is more than simply another consumer product.

She is Frances Moore Lappé, author of Diet for a Small Planet and founder of the Institute for Food and Development Policy, who overturned the conventional wisdom that hunger and starvation are caused by a shortage of food. She has patiently but forcefully made the case that people go hungry because of inequality and greed in the distribution of food.

Lappé’s influence has been immense—in promoting vegetarian and whole grains diets, in broadening the scope of democracy, in opening up thinking about international food production and marketing systems. Yet she’s not convinced everyone.

A lot of news coverage on the recent food shortages around the world did not discuss agriculture, trade and social policies that keeps food out of the hands of people, but rather blamed the crisis on “not enough food to feed empty stomachs.”

That phrase came from a reporter for National Public Radio, who in a 4-part series championed pesticides, artificial fertilizer and genetically-modified seeds as the solution to food shortages and the impoverishment of small farmers around the world.

“NPR misses the real story,” Lappé writes in a blog on the Huffington Post. “On every continent one can find empowered rural communities developing GM-free, agro-ecological farming systems. They’re succeeding. The largest overview study, looking at farmers transitioning to sustainable practices in 57 countries, involving almost 13 million small farmers on almost 100 million acres, found after four years that average yields were up 79 percent.

“All over the world,” she continues, “poor farming communities are discovering their own power to work with each other and with nature to build healthier, more secure, and more democratic lives.”

Although Lappé doesn’t use the c-word, that sounds like a good working definition for an international food commons.

For more information see the Small Planet Institute

So it is refreshing to encounter an artist who is courageously and opening using fair use to build an unusual career. D.J. Girl Talk (aka Gregg Gillis, who only recently quite his day job as a biomedical engineer) has become a hot performer by sampling dozens of music snippets and blending them into his distinctive sound collages. He doesn’t ask permission; he doesn’t make any payments. Girl Talk just takes whatever samples he finds interesting — more than 300 on his latest album, “Feed the Animals” – and claims protection under the fair use doctrine.

Girl Talk, photo by Ezalis, licensed under a Creative Commons BY-NC license.

At one time, bands like the Beastie Boys and Public Enemy freely sampled other artists and became sensations. In fact, sampling was a key element enabling hip-hop to be invented in the first place. But then the record labels and attorneys got into the act, each trying to claim broad protections for “its” musical property.

The big blow came in 2004 when George Clinton’s group, Funkadelic, won a lawsuit against the rap group N.W.A. for using a nearly inaudible sample of a three-note, two-second clip from “Get Off Your Ass and Jam” – the notorious Bridgeport v. Dimension Films case. Now – fair use be damned – it is generally illegal to sample any identifiable sound snippet without first obtaining permission and making a payment to the artist’s record label and/or publisher.

This sweeping legal standard has had a profoundly negative effect on creativity, say culture scholars like Siva Vaidhyanathan, Donna Demers and Kembrew McLeod. Excessive copyright protection has made hip-hop and other musical genres less innovative and robust. The sample-heavy recordings that made the Beastie Boys and Public Enemy so popular are all but impossible today.

Which is why Girl Talk deserves kudos for defiantly claiming fair use as his artistic right. Far from just “ripping off” the sounds, Girl Talk spends months working out ideas during his live performances, and an estimated day of work for every minute of his sound collages. His sampling and sound collages may use other people’s works, but the new songs are truly “creative transformations” within the scope of fair use jurisprudence.

Just because a sound is identifiable as someone else’s does not mean that there is no new creativity going on. In any case, how can future musicians create if they are constantly fearful of stepping on someone else’s guitar riff or melody? Not so long ago, Beatle George Harrison actually lost a lawsuit because his song “My Sweet Lord” was judged to be a ripoff of “He’s So Fine.” The spectacle of some culturally clueless judge making these determinations is at once scary and hilarious. In a recent profile of Girl Talk, The New York Times gave this evaluation of his music: “At times [Girl Talk’s] album sounds like a cleverly programmed K-tel compilation that presents catchy riffs instead of full songs, and part of the fun is recognizing familiar sounds in a new context.”

Could Girl Talk’s brave invocation of fair use signal a turn of the tide for that beleaguered legal doctrine? Perhaps. Not only is fair use being thrown back at copyright industries with increasing frequency and success – evidenced by cases brought by fair use legal clinics at Stanford Law School and American University – Girl Talk actually has the public support of his Pennsylvania congressman, Mike Doyle. Also amazing is the fact that Girl Talk has not yet been sued. Apparently the record labels are fearful of the bad publicity that any litigation would bring as well as a potentially adverse judgment that could set a lasting precedent.

It’s been a long time coming — years of civil disobedience by artists; a number of lawsuits upholding fair use; the publication of new “best practices” norms for fair use in certain creative sectors; the growing use of Creative Commons licenses as a workaround – but if only as a cultural matter, I think fair use may be regaining its mojo.

People’s economic well-being can be held hostage by oil companies, pharmaceutical companies, insurance companies, HMOs, and other powerful multinational corporations, yet in political debates independence generally mean just one thing: the absence of government regulation, or any kind of joint citizen effort.

CC license By Marion Doss from Flickr Thomas Jefferson. Copy of painting by Rembrandt Peale, circa 1805. Still Picture Records LICON, Special Media Archives Services Division (NWCS-S), National Archives at College Park, 8601 Adelphi Road, College Park, MD 20740-6001

I was reminded of this by a headline in the New York Times citing the “independent streak” of Houston residents for the city’s miserably low recycling rate: 2.6 percent, worst in the country, four times less than some others at the bottom of the list like Dallas and Detroit.

“We have an independent streak that rebels against mandates or anything that seems trendy or hyped up,” declared Mayor Bill White, a Democrat who favors expanded recycling in the city. (Actually there’s no law in Houston or anywhere else in the U.S. forcing people to recycle—although San Francisco, ranked at top with 68 percent recycling, is considering one.)

This is surely not what Thomas Jefferson had in mind when he penned the word “independence” in his immortal Declaration. Jefferson embodied a true “independent streak”, working collectively with other American dissidents to “rebel” against the tyranny of the British crown.

Jefferson and his compatriots would be amused (or more likely dismayed) to see that what passes for independence today is a peevish resistance against “trendy and hyped up” chores that might result in a tiny bit more work on trash day. Independence for them did not mean a privatized, selfish focus on individual convenience over the common good.

Although influenced by John Locke and other British philosophers stressing the pursuit of property and the rights of individuals, they still understood the commons as part of the social dynamic that allowed societies to progress.

From communal cattle grazing on the Boston Common (which continued until 1830) to the community cooperation that allowed white settlers to survive on the frontiers of Pennsylvania and Virginia, the commons was central to American life at that time. And for anyone paying attention, the commons-based culture of Eastern Indian tribes, whose Iroquois Confederation influenced the U.S. Constitution, provided another example of the power of the collective cooperation.

No one of that era, including capitalism’s fervent champion Adam Smith, could conceive of a world where the market drove all economic, political and moral decisionmaking. Social bonds created outside the marketplace by people working together to solve common problems is what kept communities together then (and now). To refuse to join a cooperative effort to make the local environment healthier would not be seen as “independent,” but rather as foolish and lazy.

The same is true today.

The City of Sapporo, a city of two million people in northern Japan, was proud as punch to cosponsor the event. City officials threw open the doors of their beautiful convention center and hosted an evening reception at the nearby ski jump for the 1972 Olympics, complete with a performance by some fierce Ainu drummers and an exhibition of skiers who gracefully flew 140 meters onto the Astroturf-carpeted slope.

On the bus ride to an evening reception at the ski jump, I met Lucifer Chu, a mischievous, public-spirited Taiwanese man who has gained some renown for translating J.R.R. Tolkien’s Lord of the Rings into Chinese. As the Taipei Times tells it, , Chu struck a fantastically good deal with a publisher who was skeptical the book would sell. When the Peter Jackson trilogy of films was released, Chu ended up making a small fortune.

Lucifer Chu, photo by Charles Mok, via Flickr, licensed under a Creative Commons BY-NC-ND license.

Chu started two foundations. The first, The Fantasy Foundation, promotes fantasy literature and graphic design throughout the Chinese-speaking world. A second, the Opensource Opencourseware Prototype System – or “OOPS” — coordinates some 700 volunteer translators throughout Asia to translate MIT’s OpenCourseWare website into Chinese. OpenCourseWare makes MIT’s many curricular materials available to anyone for free. By making those materials available to Chinese-speaking world, Chu’s project has helped dramatically change how China teaches physics and many other subjects.

At the conference, I also caught up with David Harris, who is producing the Global Lives Project. The project is about recording and displaying 24 hours in the lives of ten people who will represent the diversity of daily life on earth. The ten lives will be featured in a video installation and also on a website that has an even larger video library of human life experience. A portable exhibition space that immerses viewers in the daily lives of the subjects will tour venues around the world starting in 2009.

Later in the afternoon, I listened to Wojciech Gryc, an international development student who works with a group called the Article 13 Initiative. The project takes computers, Linux and open-publishing software tools to villages in Kenya and Chad to teach them young people how to publish their own community magazines. The project’s tagline is “Open access. Open source. Open media.”

The best-dressed lexicographer you will ever meet is Erin McKean, who lives in Chicago and is a big fan of dictionaries. She blogs at dictionaryevangelist.com. McKean gave an amusing talk about what life would be like if language were not treated as a commons, citing how it would be impossible to curse because religious groups would have bought up all the expletives and retired them, and some big companies would buy up ownership of key letters.

Erin McKean, photo by Neil Hunt, licensed under a Creative Commons BY-NC license.

On a later panel, McKean described the unusual wiki that she launched to help women find and make vintage sewing patterns. The site has become a mecca for women in search of dress patterns from the 1920s to 1970s that are no longer commercially available. What I enjoyed about the story is how the commoners are actually helping out corporate pattern makers like Simplicity, Butterick and Vogue — and other fashion fans — because the companies haven’t even maintained archives of their own patterns.

I also learned about Qwartz.org,, an electronic music awards program for indie artists. Qwartz invites Internet users to select the winners, who are then feted at an annual ceremony in Paris that attracts more than 2,000 people from 40 countries. Result: Qwartz is helping bring the best new international indie music to greater prominence.

As this brief and extremely partial review suggests, iCommons was a dizzy kaleidoscope of venturesome people dedicated to sharing information and culture. In my next post, I will discuss some specific themes at iSummit that captivated me.

_To read Bollier’s address to the iCommons conference see Commoners As An Emerging Political Force_.

Photo on homepage, “Ainu Drummers,” by Rampant Gian, via Flickr, licensed under a Creative Commons BY-NC-SA license.

It is tempting to dismiss locally grown food as just another elite fashion, as many people surely will. But it is also true that wealthy households are often the first to validate broader market trends.

Consider it another chapter in the ongoing dance between the commons and the market. The commons lovingly advances a new ideal – in this case, the ecological virtues, social satisfactions and great taste of locally grown food. And then, after years of hippies, homesteaders and eco-evangelists beating the drum for this new ideal below the radar screen of mainstream culture, entrepreneurs suddenly get hip to what’s going on and swoop in to make money from a grassroots trend.

Photo by asmart42, via Flickr, licensed under a Creative Commons BY-NC-ND license.

Some things never change. We are at that special inflection point in the evolution of social attitudes that are mysteriously propelling the rise of a new market niche. Its customers, the aficionados of local food, even have a name – “locavores.” There are also novel sorts of new businesses.

As the Times reports, Trevor Paque has made a business in San Francisco planting vegetable gardens for affluent suburbanites who want to eat garden-grown food, but who don’t like to garden. So Trevor does the planting, weeding and harvesting. A company called FruitGuys will deliver boxes of locally grown, sustainably raised or organic fruit to people in San Francisco and Philadelphia.

Soon mega-millionaires like Bill O’Reilly and Rush Limbaugh will rail against the trendiness of local food. That’s their schtick, after all – to invent elite foils for themselves so that they can cast themselves as Main Street populists. Real Republicans only eat red meat and potatoes, it would seem.

This is just a shell game in the culture wars, however. I am convinced that local food is going to become a steady, long-term growth market. For its taste, cost and eco-friendliness, local food has already become a symbol of social virtue. People are starting to realize that it is not so good for the planet to haul meat from New Zealand, wheat from South Dakota and fruit from Caifornia. Social demand and sheer economics are starting to buoy local growers, and supermarkets are looking for new ways to call attention to their local produce. The trend lines are clear.

The spending of local money for local produce is surely a virtuous cycle for local economies. It is also likely to promote greater personal connections among people locally, stronger commitments to one’s local community, and a more stable and diverse local economy.

Two days after filing the local foods article, Kim Severson, the same Times reporter who wrote about the elite embrace of local foods, had another piece about the upcoming an upcoming festival called Slow Food Nation. The event, to be held in downtown San Francisco over Labor Day weekend, will feature pavilions devoted to foods like pickles, coffee and salami. A quarter-acre patch of the lawn in front of City Hall has been ripped up to grow a garden.

Slow Food Nation is an ambitious attempt by Slow Food USA, the American spinoff of the Italy-born Slow Food movement, to establish itself as a recognized political and cultural force. Organizers hope the festival will be, in the words of Severson, “the Woodstock of food, a profound event where a broad band of people will see that delicious, sustainably produced food can be a prism for social, ecological and political change.”

I am sure that certain elements of the Slow Food world will behave like effete connoisseurs and fawn over the local argula and goat cheese. But really, is that so bad? Why shouldn’t people start to express their affection and appreciation for local food? If cultural snobs and the wealthy can embrace a populist trend without coopting it – validating it with their presence and boosting it with their dollars – I say, bring ‘em on. Let everyone celebrate the taste of local food – and then move on to the political and economic realities that sustain it.

If local food is going to be a victim of identity politics, let it be a politics of localism: “We all live here together, so let’s find the way to support the farmers who are our neighbors.”

If you care to learn why cell phone service is so bad in the United States, why breakthrough medical treatments cannot be taken to market, and how holdouts can stymie valuable real estate development, The Gridlock Economy helps locate a core problem: the fragmentation of individual property rights and the paralysis that results. Though economists like to tout property rights as a wonder-cure for virtually everything that ails us, Heller explains how all sorts of innovation and market growth is killed in the cradle simply because there are too many rights-holders with too many divergent concerns.

It can be extraordinarily costly to identify all of the people with property stakes in a given field, and even if they can be found, many have no wish to sell their rights. Such “holdouts” can effectively block new research on malaria drugs, plans to consolidate an urban university campus, and attempts by mobile phone companies to build a seamless national network of service. Gridlock prevails, and we are all the worse for it.

The signal contribution of Heller’s book is his lucid popularization of legal concepts that only patent scholars, real estate lawyers and telecom policy wonks give much thought to. Heller gives us a new language for understanding an important type of enclosure: the anticommons.

Heller and a colleague, Rebecca Eisenberg, coined this term in a 1998 law review article that explained how drug patents may paradoxically deter the development of new and useful drugs. An anticommons results when too many people own property rights of a given resource – land, electro-magnetic spectrum, biomedical knowledge – resulting in an inability to initiate new creative and commercial activity. He cites one legal theorist who writes, “To simplify a little, the tragedy of the commons tells us why things are likely to fall apart, and the tragedy of the anticommons helps explain why it is often so hard to get them back together.”

Here is the essential message that Heller develops throughout the book:

“Making the tragedy of the anticommons visible upends our intuitions about private property. Private property can no longer be seen as the end point of ownership. Privatization can go too far, to the point where it destroys rather than creates wealth. Too many owners paralyze markets because everyone blocks everyone else. Well-functioning private property is a fragile balance poised between the extremes of overuse and underuse.”

While it is easy to spot a “tragedy of the commons” – a resource gets visibly ruined and people fight about it – it is much harder to identify a tragedy of the anticommons, Heller explains, because there is usually nothing to show. How does one see something that has never existed (a new drug, a new business venture)? How can the “bargaining failures” of the market be made visible and rectified?

Heller demonstrates the ubiquity of the anticommons effect by taking the reader on a tour of oyster beds in Maryland, storefronts in Moscow, pharmaceutical labs, the Manhattan real estate market and robber barons of the Rhine River after the fall of the Holy Roman Empire. The stories make clear that the anticommons is not some contrived abstraction, but a name for a phenomena that is widespread but largely overlooked.

The tolls levied along the Rhine River is a particularly helpful example. During the 13th Century, all sorts of barons built castles along the Rhine to forcibly extract tolls from merchant ships trying to bring their goods to market. As hundreds of castles sprang up to demand tolls, it became impossible to carry on commercial trade via the Rhine. Trade collapsed in the region for hundreds of years, and everyone was worse off.

Today, there are countless “phantom tollbooths” that use property rights to extract tribute from the stream of commerce while contributing very little in return. For example, “patent trolls” are companies that amass portfolios of patents simply to use them as bartering chits to extract money from companies doing genuine innovation. Now that companies can actually own “gene fragments,” the profusion of individual property rights is making it difficult for biotech companies to develop new therapeutic proteins and genetic diagnostic tests. There are too many bundles of patents spread among too many owners.

It is a heartening sign that many large research-intensive companies understand the anticommons problem. Many are in fact taking the initiative to combat it, if only to protect their own long-term strategic self-interests. Alarmed at the privatization of gene sequences, which are basic building blocks for drug research, Merck created a public database of gene sequences, the Gene Index, and contributed nearly a million of its own sequences. Some telecom companies have entered into patent pools so that they can share patented inventions among each other without the fear and expense of litigation. Innovation can proceed.

Yet there is only so much that individual players in a given market can do to combat gridlock. In most cases, the anticommons must be solved through government interventions such as regulation or eminent domain. Sometimes voluntary cooperation can devise solutions, but much depends upon the particular resource and community involved.

The Gridlock Economy is a refreshing book because it draws upon the deep knowledge and authority of legal scholarship without getting mired in pedantic, inside debates. It speaks to the concerned citizen and policymaker, and grounds its arguments in vivid, concrete stories that anyone can relate to. After going through so many examples, Heller makes a compelling case that the tragedy of underuse, a function of an anticommons of property rights, needs to be named in order to be recognized and then addressed. He is also astute about the neglected potential of the commons: “Cooperative solutions are often small-scale, context-specific, local and not reliant on legal structures – thus hidden,” he writes.

I do have some quibbles with The Gridlock Society. In his zeal to point out the tragedies of the anticommons, I think Heller could do a better job of recognizing that some anticommons can be worth keeping. I disagree with the presumption that consolidating market activity to make it more efficient is necessarily the highest virtue. As one reviewer of The Gridlock Economy pointed out, thank God urban critic Jane Jacobs was able to help prevent Robert Moses from turning lower Manhattan into a highway. Keeping the anticommons of Soho and Greenwich Village wasn’t such a bad outcome.

Heller bemoans the fact that political factors have thwarted the expansion of high-traffic airports around the nation. Building just 25 more runways could eliminate most air-travel delays in the United States, he writes, eliminating gridlock. Yet should the demands of an ever-burgeoning market sector and the nation’s frequent flyers be presumed to be more important than the desires of homeowners who live near airports? This strikes me as an inherently political question, one that economics cannot summarily resolve.

Localism, the diversity that comes with it, and a wide array of non-market values (history, culture, personal dignity) deserve respect, too. If they contribute to “gridlock” in some instances, the outcome may be worth it. There are likely to be many circumstances in which an anticommons is not such a bad thing.

This point should not detract from Heller’s larger accomplishment. The Gridlock Society skillfully draws together many diverse strands of scholarship and weaves them into a cogent analysis and highly readable story. He brings a penetrating eye to the limitations of traditional property rights theory, and clearly explains how many social, technological and economic problems stem from the anticommons. Heller concludes by offering an array of strategies for overcoming gridlock. It will be a difficult, long-term challenge to bring the commons and the market back into a more wholesome alignment, but The Gridlock Society gives us a new vocabulary and mental concepts for making serious progress.