Much of the analysis here builds on ongoing group & one-on-one discussions with members of COALA Global, Crypto Law Review, and networks like RWOT, Ethereum, IGLP, Commons Stack, etc. The following section builds directly on an ongoing mindshare project at COALA (International Law Working Group). If you see errors in need of CleanApp, please let us know.
Here are some key takeaways from Part 1 of our survey of the law of [blockchain] commons.
- Commons are existing and potential resource pools that undergird social processes;
- There are many different existing analog commons forms (HOAs, cooperatives, corporations, water tables, national parks, atmosphere, oceans, etc.);
- Many parts of our existing Internet tech stacks are digital commons — extending across digital forms, networks, and processes, including blockchain embodiments (e.g., Ethereum-as-commons);
- Geospatial maps are types of digital commons;
- Law itself is a type of commons;
- Law structures and enables (and simultaneously seeks to constrain and resolve) the tragedy of the commons.
- Blockchain can help solve the tragedy of the [legal] commons.
Now, let’s smash together and reorg these blocks.
A. Tech Stack [Legal] Commons
The best illustration of tech stacks that operate as existing legal commons is in the realm of intellectual property law.
Consider, for instance, the success of open-source software/data-sharing forms like: (1) Creative Commons; (2) the Linux Foundation; (3) the Wikiverse; (4) etc.
The point is simple. Our enjoyment of the Internet is built on a vast Internet tech stack commons and an equally vast “law commons” — much of which is only now starting to get mapped in rigorous systemic ways.
This tech stack took decades to develop; it continues to develop at an accelerating pace. Much of it was built with a view towards creating a global digital commons. Yet its commons forms are still not fully mapped & well-understood. The reason why is that they have evolved by the time you finish reading this sentence.
The only way the blockchain revolution can fulfill the promise of a global digital commons is to finally unlock how existing tech stacks and law stacks relate to one another.
B. Tech Stacks & Law Stacks
Here’s a typical view of how the law stack grows alongside the tech stack, constraining and enabling the tech stack’s development.
But there’s a fascinating twist. Given the pace of digitization, the Law stack is now unthinkable without its underlying tech stack. These two stacks are in symbiosis.
Every time you get pulled over for speeding, the police officer is running data queries on distributed networks. Much of today’s life is literally built on digital maps, including the mechanisms of law enforcement. And in the tech stack, disputes are ultimately resolved by invocation of a law enforcement mechanism from the law stack. Symbiotically.
This shows no sign of trend reversal.
But while “the law” has largely facilitated and welcomed the Internet tech stack, the path is often one step forward, two steps back.
Witness global clampdowns on large decentralized data-sharing engines, and it becomes clear that IP law (& Law, more generally) is a multi-edged sword.
IP “carve-outs” & legal sandboxes like Creative Commons or other open-source licensing forms may be appropriate for some contexts, but they may restate the problems occasioned by the tragedy of the OS commons, rather than solving them.
Proof? We still have a lot of free-riders and we have more pollution in our air and water each year, not less.
C. Law is Commons-Friendly
Whenever we adopt the framing above — commons as “permitted by” or “anticipated by” or “accommodated by” existing legal forms, we get mind maps like the following:
The best illustration of this is the legal form commonly known as a patent, under domestic and international patent law [the two are largely harmonized by this point, but still represent distinct legal planes].
A patent is an archetypal commons legal form. Here’s an except from “All Our Patent Are Belong to You” (CleanTech Edition):
But there’s a tragic cost to this framework: it limits our ability to experiment with novel ways of solving the tragedy.
There are high transactional and compliance costs to operating within existing commons legal boxes. It costs a lot to get a patent or a wireless spectrum license (as types of formal commons protections). Often, as Elon Musk points out, it’s like buying a lottery ticket to getting sued, which further raises transaction costs. Legal compliance audits and purely defensive strategies are expensive and uncertain endeavors.
Accepting Law > Commons frameworks limits our ability to solve the tragic problems that Law has not been able to solve.
Because the legal forms are intrinsically fluid, we are always reconfiguring them in new ways to minimize risk of loss &/or assign liability.
This is why we need commons legal frameworks (plural, for redundancy) that are far more dynamic than anything we have at present. Blockchain commons represent key components (plural, for redundancy) of those new socio-legal stacks (plural, for emphasis).
D. Commons > Law > Commons
Next, the Law > Commons framework (Law as bracketing & constraining commons possibilities) fails to capture the reality of global knowledge production and dynamics of power, where Law > Commons, but also Commons > Law > Commons …
Fortunately, nothing requires our imaginations to be limited by the existing law stack. We should improve the best features of the current law stack, precisely so we can get more utility from them. Smart social systems welcome this type of renovation.
E. Commons Law & Policy
Because tech stacks can cast unfavorable spotlights on law stacks, and actively undermine law stacks, we must also acknowledge the anxiety that law stacks have towards the growing power of tech stacks.
In light of broader crypto regulatory trends, it is reasonable to expect more state opposition to blockchain projects that seek to radically rethink the rules of social consensus.
For better or worse, blockchain is now stuck in the crossfire between BigTech and BigBrother, as both try to morph with their siblings to create stronger BigTechBrothers.
As always, the commons are the places where the battles take their greatest toll.
This poses challenges. But we also know that we cannot rely exclusively on BigTechBrother’s ability to clean up after himself. So — as Tupac says — it’s on us to do what we gotta do to survive.
As powerful as the law stack is, it’s not all-powerful. This is especially true because our ability to collect, process, and reconfigure data is orders-of-magnitude better than it was just five years ago. Five years from now, it will be orders-of-magnitude greater still. And so on.
Let’s not forget: the law stack now runs on top of the tech stack. Literally.
Blockchain allows commoners to exert powerful levers of influence over law people, which is cool. But it also allows all of us to solve some of humanity’s greatest coordination problems in non-binary and non-adversarial ways.
For blockchain isn’t just about keeping others to account; it’s about keeping ourselves to account.
To unlock these utility gains (and potentially solve the most tragic of the tragedies), we need new approaches to the legal commons. There is no other way.
To flesh out this conception of law-as-commons as it exists today, let’s turn to Part 3.
