Blockchain has revolutionized social coordination, with novel economic processes taking shape all over the world.
New blockchain protocols, dApps & DAOs are fundamentally disrupting business-as-usual.
Some of these new blockchain-based social and economic structures are not new at all.
The application of blockchain to the current financial and securities context, for instance, often results in blockchain forms that are functionally equivalent to their non-blockchain antecedents. So it’s only reasonable to apply existing legal categories to these forms.
But there are also entirely new blockchain forms, processes, and organizations that are truly unlike anything the world has seen before.
Take, for example, the idea of blockchain commons (e.g., Ethereum, Peerism, CommonsStack, COALA Global knowledge base, @BlockchainComns, etc.).
From first glance, it becomes clear that it’s difficult to even define the scope of such commonspheres. Therefore, we should resist the urge to reflexively squeeze these amoeba-like creatures into rigid existing legal boxes.
A. What are Commons?
To understand the importance of new legal frameworks for the blockchain commons, we have to take a moment to define what we mean by the ‘commons.’
Here is one working definition, although there are many others:
Commons: existing and potential resource pools that underpin social processes.
This is a broad definition, but necessarily so. Because what we typically think of as “the commons” (the atmosphere, commonly-shared water stocks, parks, fisheries, etc.) are just the tip of the iceberg when it comes to the full plurality of existing — not to mention, forthcoming — commons socio-legal forms.
Please note that this is a preliminary working definition of commons. There is no consensus, as yet, even within allied blockchain commons traditions on the scope, nature, and function of the commons, as such.
The broad working conception of commons above is useful, nevertheless. It allows us to see that open-source code repositories can (& should) be viewed through new legal commons frameworks (see here, here, here).
The reason we need new legal frameworks around commons is because it’s clear that existing frameworks aren’t protecting the … commons.
Data points that correspond to map data on OpenStreetMap can be seen as a type of commons. Deep future oceans of data may be viewed as a type of commons. This will necessarily include different data moats, bays, channels, and islands.
There are many different legal forms of commons; and that’s a good thing from evolutionary, security, and utility standpoints. See, e.g., Primavera De Filippi and Félix Tréguer, Expanding the Internet Commons: The Subversive Potential of Wireless Community Networks (2015) (highlighting how one of the most surprising aspects of wireless spectrum allocation decisions was the de facto relegation of “junk bands” as spectrum commons, which spurred proliferation of novel technologies that made use of that band to offer greater levels of utility).
The key point is that we cannot even imagine the full range of emancipatory solutions (& yes, also problems) enabled by the blockchain commons (e.g., cadCAD in the token engineering context that can directly enable #KidneyCoin in the healthcare context; #TrashCash in the environmental context; etc.).
The way to maximize the likelihood of success of these life-saving technologies is to make sure that they remain … common.
Commonly known; commonly accessible; and commonly governed.
B. Common Law → Commons Law
Crucially, as we transition to increasingly sophisticated and complex data management systems, we should remember that Law itself is a type of commons.
That everyone should have access to repositories of legal knowledge on a free and unimpeded basis is a baseline civilizational norm.
The law of blockchain commons necessarily entails the creation of the world’s first dynamic and maximally secure geospatial and doctrinal maps of … living Law.
This technology finally allows us to unlock one of the world’s great social riddles, with breathtaking efficiency. We’ll finally unlock the biggest jurisdictional black box of all: who can do what, where, when?
Very concretely (& just by way of one example, of millions): who is responsible for the cost of cleaning up this waste on that beach right now?
Blockchain allows us to finally answer these questions (and solve the underlying problem). Yes, blockchain can help us do this. Blockchain teams are already doing this.
Only once we unleash blockchain’s full commons potential will we get good at doing what we need to do, when and where we need to do it.
C. Tragedy of [Legal] Commons
With big claims like that, we should theorize the problems better.
In a nutshell, the problem that the “law of commons” seeks to solve is an age-old paradox of human social organization — the so-called tragedy of the commons, and those parasitic free-riders (each one of us in a given context).
The tragedy of the commons is a remarkably simple and intuitive realization:
Everyone benefits from vibrant and global atmospheric, ecological, and knowledge repositories, yet not everyone is directly economically incentivized to provide for the protection of the commons.
This state is tragic because by destroying the commons, we are speeding up our own destruction. The tragedy of the commons is not sustainable. It is an evolutionary dead end.
Accelerating depletion of fisheries and runaway environmental pollution are clear illustrations of this tragedy. There are countless others.
Please note that, typically, we think of the tragedy of the commons as an economic reality, and/or a game-theoretical inevitability, and/or a historical phenomenon, and/or a problem of information asymmetry. Yes, the tragedy is made up of these acts.
But there’s more behind the curtain.
The tragedy of the commons is also a legal problem, brought to you (in large part) by … lawyers! Sorry.
For a deeper (& more theoretically-grounded) account of these phenomena, and the shortcomings of existing legal frameworks for dealing with the commons, we urge everyone to read this excellent article by Alpen Sheth:
D. Commons Stock-Taking
Let’s restate some of the main points so far.
- 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.
To smash together and reorg these blocks, let’s turn to Part 2.
