4. All That Is Shared Becomes a Market Commodity

If you’ve ever sung “Happy Birthday” at a restaurant or park, you were, until 2015, a “pirate” in the entertainment industry’s sense of the word. That’s because the Warner Music Group owned the copyright to “Happy Birthday.” The song was written in 1858 by two sisters, Mildred and Patty Hill, who were inspired by traditional Negro folk songs and a tune called “Good Morning to All.” Amazingly, their piece of mid-nineteenth-century music, intended for schoolchildren, remained a piece of private property for 157 years after the Hill sisters came up with their “original” creation.

After buying the song’s copyright in 1988, the Warner Music Group raked in about $5,000 a day in royalties from “Happy Birthday,” or nearly $2 million a year. Copyright lawyers conveniently ignored the fact that the only reason this song has any commercial value at all is because it has circulated freely for generations in people’s households, a tenacious host of folk culture that flourishes outside of the marketplace.*

The “Happy Birthday” story is no aberration, alas. It is just one of countless contemporary enclosures of the cultural commons. In the early 2000s, after hearing too many of these stories, I cofounded a Washington, D.C., advocacy group, Public Knowledge, to stand up for the public’s stake in copyright and internet policy. The experience prompted me to write a book, Brand Name Bullies, documenting some of the most outrageous examples of overreaching by entrenched media industries that use copyright and trademark to claim proprietary control over all sorts of our creativity and culture.

I find dark amusement in the greed of the American Society of Composers, Authors and Publishers (ASCAP), the music-licensing body that threatened dozens of children’s summer camps with legal action in 1996. The summer camps’ big crime was to sing copyrighted songs. By ASCAP’s reckoning, commercial summer camps that organize children to sing around the campfire and dance in the dining hall are hosting “public performances.” And, as copyright law clearly states, public performances of copyrighted songs require payment to copyright holders. ASCAP reportedly sought $1,200 per camp per season as an opening offer. The organization’s chief operating officer told a reporter at the time, “They [camps] buy paper, twine, and glue for their crafts—they can pay for the music, too.”

Once the public and press learned of these outrageous demands, the barrage of public criticism became so intense that ASCAP backed off. Mercifully, kids in summer camps are still allowed to sing and dance to “Puff the Magic Dragon” and “Row, Row, Row Your Boat.” It bears noting, however, that singing copyrighted songs at camp remains an ASCAP-granted indulgence, not a legal entitlement.

These examples may seem extreme, but they point to one of the great transformations in culture over the past century. You and I may consider music, film, literature, and photographs to be the cultural treasures that bind a society together. In truth, this is only a secondary effect. In the eyes of the law, such creative works are little more than marketable units of “intellectual property.” For film studios, record labels, and book publishers, culture = product. Creative works = private property.

This a fairly audacious inversion of the history of human culture. From time immemorial, human beings have freely shared their creativity with each other. Culture has always been about imitating, extending, and transforming earlier creative works. Art has always been a communal, intergenerational act of borrowing. The Greek legend of Pygmalion was the basis for a George Bernard Shaw play of the same name, and later for the musical My Fair Lady. The musical West Side Story is clearly based on Shakespeare’s Romeo and Juliet, and Shakespeare himself did his fair share of recycling from Ovid and other ancients. Mark Twain’s Huckleberry Finn owes a huge debt to Homer’s Odyssey, which itself draws heavily upon oral traditions. Culture cannot thrive without a commons of shared creativity.

It is impossible to imagine the development of jazz, the blues, or hip-hop if musicians had not been able to freely borrow from each other. The great American folk singer Woody Guthrie proudly acknowledged that his folk music was cobbled together from the bits and pieces of old blues masters, hillbilly singers, and cowboy music. Taking aim at the commercial ethic that was already beginning to dominate music in his time, Guthrie wrote, “This song is copyrighted in US… for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ours, ’cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it.”

The twenty-eight-year period of copyright protection that prevailed in Guthrie’s time has since been extended several times and now lasts for an author’s lifetime plus seventy years. This is ostensibly the length of monopoly control that an author needs to be motivated to create. According to the logic of copyright law, I would not be sufficiently motivated to write this book unless I could enjoy copyright protection until the year 2100, more or less.

There have been many obscure changes to copyright law over the past century that have expanded the rights of copyright holders. Few have been as consequential as the 1976 change to US law that made all creative works—including scribbles on a piece of paper and casual chords recorded on a tape recorder—automatically copyrighted. No longer did an artist or their publisher have to affirmatively register a work to get copyright protection; all works created since the 1976 law are automatically born in an envelope of private property rights. Most countries of the world have adopted this standard by ratifying the Berne Convention, an international copyright treaty that prohibits formal registration requirements for copyright protection.

This sweeping change in the scope of copyright law has been followed by intensive PR campaigns by the entertainment industry to persuade us that music, film, and books must be seen as “intellectual property” that is as sacrosanct as your home or car. Likening culture to private property has been insidiously effective—if misleading—because it has allowed industry to claim that any unauthorized use of creative works constitutes a theft. Our natural human impulses to imitate and share—the essence of culture—have been criminalized.

That, in a nutshell, is the problem we face today. Copyright—with help from new types of “technological locks” that encrypt DVDs and ebooks—are privatizing more and more of our shared culture so that large companies can squeeze more money from it. This is limiting the freedom of creators in all media. It is also homogenizing culture, erecting legal barriers to new creativity, scientific research, and free expression.

For the entertainment industry, the problems really started with the arrival of electronic technologies, and especially the internet, which make it easier to copy, disseminate, and remix cultural works. The rise of blogs, wikis, collaborative websites, and various forms of social media have radically changed global culture. People can now create and share their own works without paying intermediaries. They don’t necessarily have to buy anything. In a sense, creativity generated outside of the market-place, via digital commons, has become a robust new kind of competition to market-based culture.

Of course, Hollywood, Big Tech, and other “content industries” were not about to roll over and let digital commons supplant their money-making machines. Hollywood joined forces with other media industries to win stronger international copyright treaties that expand their rights and punish “pirates,” defined very broadly. They secured draconian legal penalties for unauthorized uses of their works and new technology locks such as “digital rights management” on music CDs, films, and other works.

Big Tech also pioneered another wildly successful strategy for enclosing digital commons and preventing new ones from arising. They developed proprietary platforms like Facebook, Twitter (now X), YouTube, Snapchat, and Instagram that invite users to share messages, videos, and images for free. But there is a hidden price to pay: the platforms are not interoperable with other platforms, and so users are in effect held captive. Users must abide by the corporate “terms of service,” and surrender any hope of governing the platform themselves. And if they leave the platform, they will abandon their self-created content and hundreds or even thousands of friends and contacts they may have attracted over years.

Worse, social media users are subjected to intensive surveillance of their viewing habits and “friends” so that the corporate hosts can make money. By combining viewing data with other databases of personal information, social media companies have assembled mind-bogglingly detailed dossiers of super-niche cohorts (people who live within five miles of a Walmart, people who buy cooking supplies, coffee drinkers, etc.) that they sell to advertisers.

Meanwhile, other Big Tech players have created ingenious hybrid open platforms to harness creative energies of vast networks of people while maintaining strict proprietary control and monetization of the results. Forget the idea of an open, interoperable commons in which creativity can be readily shared and built upon! Apple invites wide network participation in its App Store, for example, but insists upon acting as a monopoly that forces app developers to pay Apple 30% of the app’s price and lifetime revenues. Rebecca Giblin and Cory Doctorow document dozens of such cases in their book Chokepoint Capitalism.

In short, the great promise of the early internet to empower users and disintermediate exploitative corporate gatekeepers has been betrayed. While brave ventures to develop new forms of online commoning certainly continue, for example, in new Web 3.0 projects, DAOs (decentralized autonomous organizations), distributed ledger systems like blockchain, and so forth, the focus is often on creating new markets, not new commons. This follows in the wake of Big Tech’s determination to build “economic castles protected by unbreachable moats”—the investment strategy that billionaire Warren Buffett says he pursues.

As all this suggests, the tools of enclosure are varied. Trademark law is an often-overlooked legal weapon used to shut down cultural commons and protect markets. This body of law governs names and logos used to identify companies and brand-name products. Trademark has the legitimate goal of preventing consumer fraud and confusion in the marketplace. But big companies are increasingly using trademark law to control their public images and prevent ordinary people from criticizing or making fun of their products.

For example, Mattel has been quick to sue anyone who uses images of Barbie dolls or the Barbie name in unauthorized ways, even for social commentary or parody. The company once went after a photographer who had mounted a photo exhibit depicting Barbie in a variety of silly and sexual positions. Mattel once pressured a small publisher to change the subtitle of its book about anorexia and eating disorders because it used the word “Barbie.”

McDonald’s has threatened legal action against dozens of restaurants that had names like “McVegan,” “McSushi” and “McMuffin.” The company once prevailed against a motel chain known as “McSleep” for trademark infringement. With some thirty thousand outlets in a hundred countries, McDonald’s essentially claims that it has global ownership of the prefix “Mc” as applied to restaurants and related businesses.

Such trademark abuses are common. The Village Voice newspaper in New York City once tried to stop the Cape Cod Voice and other newspapers from using the word “voice” in its name. There are actually trademarks for smells, such as “the smell of freshly cut grass on tennis balls.” The US television network NBC owns a trademark on three musical notes played on a chime—“ding, dong, ding!” One wonders if Andy Warhol would have been able to create his Campbell Soup silkscreen if today’s trademark laws were in force fifty years ago.

The Marketization of Universities and Their Research

It may not seem obvious, but as professors Michael Madison, Brett Frischmann and Katherine Strandburg put it, the university is a “constructed cultural commons.” The university system relies on the commons paradigm to bring together many different people in nonmarket collaborative relationships to generate new knowledge. The university itself is a complex ecosystem of many smaller-scale commons, such as the graduate and under-graduate college, the school, the department, the library, the archive, the lecture hall, and the seminar room. As a federated whole the university manages diverse flows of knowledge as a living system, and devises ways to store knowledge, improve it, and introduce it to new generations.

Anyone who lives within academia knows that the language of property rights and market transactions is quite alien to its ethos. A university does not buy and sell knowledge; it nurtures ongoing relationships of trust and reciprocity. It promotes sharing and collaboration in advancing knowledge. Well-regarded professors peer-review their rivals’ papers, for instance, without thinking of charging money for this service, one they themselves benefit from many times over. Of course, academia is also an arena of competition and rivalry, but there is a presumption within scholarly circles that knowledge should not become a proprietary product. It should be openly shared and preserved.

In fact, that is how academia helps assure the integrity of its research—through open scrutiny and debate. The community is the proper steward of the knowledge. Hoarding knowledge as a privately owned good is not only hostile to the community, it defeats the value-proposition of scholarship. The goal of scholarship is not to maximize profits but to advance the search for truth and root out error. People feel a responsibility to patrol the boundaries of the academic commons in order to identify anyone who might poison the truth with falsified research or plagiarism. That is the real value of the commons in academia: its effectiveness in nourishing ethical, rigorous scholarship. It is always prepared to identify and punish the sloppy or deceitful researcher and has historically frowned upon the entrepreneur who would privatize a research community’s work by patenting it for private gain.

The big story of the past forty-five years has been the erosion of this ethic. The privatization and commodification of academic knowledge and scholarly relationships are now well advanced. The year 1980 was a major turning point in the history of the modern university, at least in the United States. That was the year that Ronald Reagan and Margaret Thatcher both won election and inaugurated new policy regimes based on an aggressive market fundamentalism. It was also the year that the US Supreme Court issued its famous Chakrabarty ruling, which opened the door for the patenting of bacteria, genes, living tissue, and both natural and bioengineered lifeforms.

Harvard University now owns patents for the so-called oncomouse used for laboratory research for cancer studies. It also owns patents on twenty-three synthetic nanoscale substitutes for elements of the periodic table. Patents on treatments for the AIDS virus and Covid-19 vaccines are privately owned and expensive even though public funds were used to develop them. While indigent AIDS patients are more likely to die and pandemics are harder to control, Big Pharma thrives.

One of the most significant forces driving this new market ethic in biomedical research, among other fields, is the Bayh–Dole Act, a US law passed in 1980 and emulated around the world. Enacted at the behest of large pharmaceutical, chemical, and biotech companies, the law authorizes universities to privatize publicly funded research by patenting it themselves, often in collaboration with corporate funders. The law encourages companies to see universities as sources of (cheap, publicly financed) research and development that they can colonize and corrupt to serve their short-term market needs. Not surprisingly, this has transformed many scholarly protocols and ethical standards. University administrators have intensified their search for ways to monetize scholarly and scientific research, launching so-called “tech transfer” offices to court large corporations to fund major research institutes.

This is fine so far as it goes—but it also opened the door to corruption and serious ethical conflicts of interest. Universities and corporations often claim patents in publicly funded research and privatize the profits. Even though taxpayers finance the most important drug breakthroughs, the patents are often owned by corporations and universities, with few price constraints. US taxpayers have financed research that produced treatments for genetic disorders, depression, and diabetes, and have invested in the research for Vasotec and Capoten for hypertension, the antiviral drug Zovirax, Prozac, and Zantac for depression, Taxol for cancer, Xalatan for glaucoma, and vaccines for Covid. But the patents for these drugs belong to corporations and their shareholders, not us.

Corporate partnerships with universities can corrupt university research priorities, often to the detriment of long-term basic research that would benefit the public. For example, instead of studying organic farming techniques and integrated pest management, a university biology department eager to secure corporate funding will find it more attractive to take money from Syngenta and study genetically modified crops. Instead of studying open source software as a tool that could help people in marginalized countries (and also reduce its own academic software bills), or public-spirited applications of artificial intelligence, a university beholden to generous Microsoft research partnerships will find it attractive to steer students toward Microsoft’s proprietary products and research agenda. This simply enlarges Microsoft’s customer and developer base while thwarting open innovation and competition.

Big Pharma has systematically corrupted the integrity of medical education in the United States, as Dr. Marcia Angell, a lecturer at Harvard Medical School, has documented in numerous articles. Top teaching physicians enjoy all sorts of cozy consultancies and junkets paid for by pharmaceutical companies. Not surprisingly, the country’s medical profession emphasizes the virtues of drug-based therapies over cheaper, sometimes better alternatives. In the US, nearly half of all continuing education for doctors is financed by drug companies. This expenditure of money has had predictable influences on the objectivity of medical research and clinical recommendations.

The enclosure of the academic commons has had all sorts of more subtle cascading effects. One is a decline in the spirit of collaboration and sharing. After universities enter into corporate partnerships, many professors are not allowed to share their research. It’s proprietary. Corporate sponsors often insist upon the power to suppress research results that might prove embarrassing to their business interests. Academic scientists and university administrations—having chosen in effect to become junior partners of large corporations—can get caught up in ethical conflicts of interest. Should they serve the public good or the private interests of corporate funders? Should academic norms of openness and sharing trump the proprietary terms of corporate research contracts?

As more academic knowledge becomes owned, it is creating what is called “patent thickets”—dense sets of patent rights that make it difficult to identify who owns rights and who is authorized to use them. Law professor Michael Heller calls this problem the “tragedy of the anti-commons”—the fragmentation of property rights such that it becomes harder for researchers to clear patent rights and collaborate without risking a lawsuit. Research into breast cancer was discouraged for years by the patents that a Utah biotech company claimed for “breast cancer susceptibility genes.” While the US Supreme Court eventually invalidated the patents, patent thickets remain a serious impediment to discovery and innovation.

Corporate partnerships with universities have still other troubling effects. They can throw a cloak of secrecy over research methods and delay the timely publication of research results. Sometimes new research findings are delayed so that the sponsoring company can get a patent before competitors learn of the research. This can result in other academics doing duplicative or unnecessary research. There are many cases of researchers who have lost their jobs or had their research suppressed because their work proved embarrassing to a university’s corporate partners.

Enclosures of Infrastructure

The city is one of the most fiercely contested arenas for market enclosures. Public squares, parks, walkways, sports arenas, and the very identity of a city are being taken over by a cozy alliance of corporations, politicians, developers, and professional architects and planners. “Development” and “progress” are the watchwords—or perhaps more accurately, PR code words—for the supremacy of corporate needs and market growth over all else.

In many big cities, corporate branding has taken over public spaces that used to be “no-sell” havens in our culture. One of the most notorious is the selling of naming rights to sports stadiums. There is Coca-Cola Stadium in Xi’an, China; Land Rover Arena in Bologna, Italy; and Barclays Center in New York City. Beloved playing fields that used to have charming and cherished histories—Candlestick Park (San Francisco) and Mile High Stadium (Denver)—now bear icy corporate names that will never inspire lyrical sports lore. Sometimes arenas are renamed because the corporation goes bankrupt (3Com) or gets embroiled in a scandal (Enron).

The implications of selling naming rights or digitally imposing logos onto playing fields, now a common practice, may seem trivial to some, but they are symptomatic of a more troubling trend: the “hollowing out” of our social identity. The shared experiences that over time give a city soul are seen as yet another commodity to be bought and sold. At a more subtle level, national franchises and branding have the same effect on how we experience our own culture; they quietly eliminate all that is distinctive, idiosyncratic, and charming. The irregular textures of a specific place and the shared memories that people have of them are flattened out to maximize commercial returns.

Starbucks’ enclosure of the coffee shop experience in the US is revealing. Originally inspired by the lively cafe culture of Italy, Howard Schultz, then the chairperson of Starbucks, was distressed in 2007 to see how his company’s success in “branding the customer experience” had eroded the social charm and conviviality of its thirteen thousand coffee shops at the time. In an internal corporate memo, “The Commoditization of the Starbucks Experience,” Schultz lamented how the company’s fierce expansion and efficiency measures had “led to the watering-down of the Starbucks experience, and, what some might call the commoditization of our brand.” He cited how Starbucks new automatic espresso machines—an efficiency measure that allowed faster service for more customers—meant that customers could no longer watch baristas make coffee by hand. Schultz complained that this had “removed much of the romance and theater” of the Starbucks experience. Similarly, store clerks are “no longer scooping fresh coffee from the bins and grinding it fresh in front of the customer” because the coffee now came in flavor-locked packaging. Customers no longer experienced the tangy smell of coffee from the bins.

Schultz fretted:

Call it the pathos of enclosure. Schultz cannot quite acknowledge that his branding aspirations eliminate the slack pace and local oddities that made coffee shops so attractive in the first place. He cannot quite admit that branding is precisely about creating a monoculture—the commodification of experience—the exact opposite of what a commons provides.

The market colonization of public spaces—and our consciousness—has become so extreme that many gas pumps and hotel elevators are now equipped with video screens that force us to watch or listen to ads. As public schools and universities suffer from budget cutbacks, corporations often step up to “help” by buying advertising space on school buses, highway toll booths, and even municipal vehicles. In many cities, even the empty spaces above buildings have been turned into a special type of private property—“air rights”—that can be bought and sold as entitlements to build skyscrapers in empty spaces now legally redefined as property.

Commoners, of course, have a more expansive, egalitarian idea of what cities should be. Pulska Grupa, a group of architects and urban planners from Pula, Croatia, put it this way in their Kommunal Urbanism Social Charter:

Over the past decade, a wider variety of people, especially in Europe, have embraced the language of the commons to reassert a moral entitlement to public spaces, buildings, and state resources. It is important to remember that access to open, uncontrolled public spaces is directly related to the vitality of democratic culture. It was no accident that following Generalissimo Franco’s death in Spain, the city of Barcelona created all sorts of new public squares. These spaces are crucial to the ability of citizens to express themselves as a collective in public—and to challenge government abuses of power. We have seen how the existence of Tahrir Square in Cairo was critical to the public protests that toppled President Mubarak. That was surely a key reason why Turkish president Tayyip Erdogan in 2013 sought to transform Istanbul’s Gezi Park in Taksim Square into a shopping mall, and then used violence to expel peaceful protesters. Public physical spaces are important in enacting democracy.

The enclosure of public spaces is essentially an antidemocratic act. When shopping malls supplant our public squares and corporate brands seize control of our parks and our promenades, we lose our capacity to see each other as a people. We can’t socialize and speak publicly, and it becomes harder for individuals to identify and empathize with each other. The erosion of public space means that it is much harder to be commoners. Without these spaces, we are forced into playing roles dictated by the market and the state—acquisitive consumer and quiescent citizen.

Enclosures of Civic Infrastructure

One of the easiest ways to make serious money is to somehow engineer a private takeover of infrastructure resources. Highways, bridges, airports, telecommunications systems, and the internet are coveted prizes because any private enterprise that controls them can reap risk-free revenues by bypassing competition and charging monopoly or oligopoly prices. Owners can also leverage their control of infrastructure to shape people’s habits and steer them to related products in which the company has an interest.

Microsoft shrewdly leveraged its control over 90 percent of computer operating systems via its Windows program to spur sales of desktop applications (Office, including Word, Excel, and PowerPoint), by pressuring manufacturers to bundle the Office program into the preinstalled Windows software on computers. This strategy enabled Microsoft to reap enormous profits, stifle competition, and shape the contour of future markets. By enclosing the commons of computer technical standards—a key infrastructure resource—Microsoft was able to slow innovation to suit its own business interests and shrink the diversity of software applications. The dozens of word-processing programs that used to compete in the marketplace, for example, have shrunk to only a few. Today Word is run on more than 90 percent of all computer desktops. And lest state or local governments try to change this situation, Microsoft has taken pains to lobby aggressively against open software standards in government procurement.

Infrastructure that is kept open and accessible to all can help guarantee that there is competition and innovation in the marketplace. It can also help protect all sorts of nonmarket social concerns, such as assuring privacy, security, universal access to infrastructure (e.g., roads, waterways, and the internet) and protecting the needs of future generations.

The internet may be the most significant piece of endangered infrastructure. In many parts of the world, cable and telephone companies are trying to exploit their oligopoly power as “on-ramps” to the internet. They want to be able to charge a premium for providing faster, higher-quality service and larger amounts of bandwidth that people can use for uploads and downloads. If such “service tiers” and differential pricing were to take root, it would open the door to a balkanization of the internet. Large corporate users would enjoy faster, more reliable service while ordinary users and nonprofits would be stuck with slower, inferior access.

Rather than allow the internet to remain a commons that is open and nondiscriminatory in how it transmits data, cable and telephone companies want to be able to censor or slow down types of network traffic that might compete with their own business interests. So, for example, if cable and telephone companies don’t want the internet phone service Skype or video-streaming services competing with their own services (or those of their partners), they could choose to shut them out or slow them down.

This is why so many public-interest advocates around the world are insisting on so-called net neutrality policies for the internet. Imagine if the dominant telecom providers had been allowed to discriminate against Google when it was a startup twenty-five years ago. It never would have gotten off the ground. Imagine if cable companies had been allowed to screen out or slow down YouTube videos when that company was just launching. Imagine all the innovative competition that would be stifled if internet service providers could say “yea” or “nay” to the sorts of Web traffic they would allow on “their” transmission systems. They could veto what future technologies or services could emerge.

Historically, regulatory policies known as “common carriage” have assured open, nondiscriminatory access and pricing to telephone lines. Such rules have been adopted precisely to prevent dominant companies from stifling competition. Net neutrality follows in that tradition. It is an essential tool for assuring the internet’s infrastructure is treated as an accessible, nondiscriminatory commons, and not simply as a proprietary corporate asset. Without such rules, internet users could lose their most basic online freedoms.

These attempted enclosures of the internet parallel what has happened with the broadcast airwaves in many countries. In the US, the electromagnetic spectrum used for broadcasting belongs to the public. In return for being allowed free use of an essential public infrastructure, the airwaves, broadcasters were originally required to act as “public trustees” of the airwaves with legal requirements to serve the “public interest, convenience, and necessity.” That’s how broadcasters “paid” for their spectrum over decades: by adhering to a handful of modest regulatory requirements to air local news, children’s shows, and educational programming. But these rules were eliminated during a massive round of deregulation under President Ronald Reagan in the 1980s and President Bill Clinton in the 1990s. Free-market deregulators simply rescinded the industry’s side of the bargain and brazenly declared that market-driven broadcasting is the public interest. Broadcasters enjoyed a sweet deal: exclusive legal control over a valuable public asset worth billions of dollars, at no cost to them!

A new frontier in the enclosure of infrastructure is Wall Street’s attempts to buy roads, bridges, and airports that generations of taxpayers paid for. Investors want to acquire equity ownership or long-term leases on civil infrastructure so they can reap guaranteed high rates of return and enjoy low risks.

In Indiana, for example, investors acquired a ninety-nine-year lease on a long stretch of the Interstate 90 highway as well as the Chicago Skyway road, both of which they have turned into toll roads. The City of Chicago lets a private company manage its thirty-six thousand parking meters, a deal that tripled parking rates, introduced meters where they previously didn’t exist, and reduced the quality of service. The City’s inspector general later found that the $1.15-billion privatization deal was undervalued by $974 million. And now the public and city government have even less public influence over how the system is run.

Political leaders often favor such deals because they allow them to avoid raising taxes or making public spending commitments to pay for infrastructure. But privatization also means that the public loses control over infrastructure for which it has already paid billions. Private companies that manage public infrastructure are allowed to skim the cream from the operation while cutting quality, reducing employees’ wages, and shifting costs to future generations.

This familiar dynamic is why “public/private partnerships” often amount to hidden scams that bilk taxpayers. The government assumes the risk of business failure while guaranteeing healthy profits no matter what happens to the business. Variations on this theme of corporate socialism—in which profits are privatized and risks are socialized—can be seen in government dealings with the water, energy, highway construction, and financial industries. Sometimes the hidden subsidy takes the form of loan guarantees, with the government guaranteeing to pay debts if companies default. Sometimes the subsidy takes the form of regulatory schemes that guarantee profits to electricity and water suppliers while quietly reducing their infrastructure costs, legal liabilities, and operating risks. In the US, governments gave industry tax-exempt bonds totaling more than $65 billion in the early 2000s to reduce the financial risks of private investors. Among the beneficiaries: a North Carolina winery, a Puerto Rican golf resort, a car museum in Kentucky, and Goldman Sachs and Bank of America, which both got subsidized office buildings.

The novelist William Faulkner once said, “The past is never dead. It’s not even past.” So it is with enclosures. They are not distant and forgotten episodes of history; they and their social and ecological harms continue. They remain a deep imperative of our modern capitalist economy. An incestuous market/ state alliance—not “free markets”—is the order of the day. The magnitude and mendacity of this alliance was laid bare in the aftermath of the 2008 financial crisis as the federal government bailed out banks and financial institutions while letting them evict millions of Americans from their homes.

As we’ve seen, the methods of enclosure have changed a great deal since the Middle Ages. Instead of stone walls and hedges, modern-day enclosures are achieved through international trade treaties, property law, copyright and trademark law, lax regulation, and corporate asset purchases. But the handmaidens of enclosure—stealth, complexity, and persuasive cover stories—remain all too familiar. As the English protest poem put it, “The lords and ladies fine continue to take things that are yours and mine”—while working mightily to divert our attention from the disruptive injustices of their enclosures.

The Many Costs of Enclosure

One of the most insidious things about enclosures is how they eradicate the culture of commons and our memory of them. The old ways of doing things, the social practices that once bound people together, the cultural traditions that anchored people to a landscape, the ethical norms that provided a stable identity, all are swept aside to make room for a totalizing market culture. Collective habits give way to individualism. Cherished traditions fall victim to whatever works now or saves money today. The colorful personalities and idiosyncratic lore of a community start to fade away.

Karl Marx memorably described the commoditizing logic of capitalism, saying, “All that is solid melts into air.” Enclosures eclipse the history and memory of the commons, rendering them invisible. The impersonal, individualistic, transaction-based ethic of the market economy becomes the new normal.

Our brief survey of enclosures highlights the dangers of subordinating nature, culture, and social relationships to markets. Let me stress: it is entirely possible for markets and commons to “play nicely together.” But that tends to happen more often in local circumstances in which family businesses and local companies are committed to a community and place. Such enterprises have more personal, direct dealings with customers, and are more subject to community support or disapproval. Meeting expenses and community needs tend to be more important than profit-maximization.

By contrast, publicly traded capitalist enterprises are structurally designed to maximize their competitive advantages and profits while aggressively minimizing costs. Publicly traded corporations are ruthless masters of enclosure because it advances their self-avowed purpose: to make as much money as possible. This means building formidable economic castles with unbreachable moats. The priorities of large corporations are transactional and financial, not personal, social, ethical, or ecological except insofar as the latter concerns affect the former ones. And the latter concerns are generally scanted unless strictly required by law, regulation, politics, or public opinion.

This is why capitalist enterprises commit so many enclosures, shamefully passing them off as progress. It’s in the DNA of the corporation as a legal form. It’s why capitalist markets so often bulldoze past ecological limits and social norms and ethical beliefs. Enormous harm results from insisting upon monetizing things that should not be given a price, expanding the scope of property rights to extremes, privatizing access to resources that everyone needs, letting monopoly ownership rights squeeze out competition and nonmarket values, and forcing humans to work within hierarchies of authoritarian control to maximize productivity and competitive success. Ecosystems are damaged. Commoners are dispossessed. The social order fixates on money-making. The inheritance to which future generations are entitled is squandered. The freedom, autonomy, and conviviality of commoning are dismissed as archaic, inefficient, and sentimental.

When businesses enclose commons, a system based on fairness, inclusiveness, and the meeting of needs is turned into a system of exclusion. Access is regulated by one’s ability to pay. That, of course, privileges investors, large corporations, and the affluent. It enhances their ability to convert their wealth into political power. Left unchecked, enclosures usher in autocratic governance, destroy the generative powers of commons, and erode the culture and ethical stability of a community.

To address such harms, I have found that the language of the commons is quite helpful. It exposes the pathological fictions about market economics and its culture. For example, it reveals the many “free lunches” that capitalist enterprises arrogate to themselves notwithstanding the economic claim that nothing is free. The commons lexicon also reveals that people, communities, and nature are not in fact commodities. They are living systems that have their own needs and terms of care.

Commons discourse also helps us glimpse many constructive new possibilities that economics otherwise dismisses as impossible. By naming and understanding actual commons, we can see that these resilient social organisms create enormous value. Their webs of social trust, goodwill, and organized purpose produce vast stores of (unmeasurable, qualitative) shared wealth. Through cooperation, commons generate experiences of security, meaning, and belonging in the course of satisfying important material needs.

Unfortunately, many people still don’t appreciate that there is already a rich, rambunctious Commonsverse out there. Its projects and movements constitute an enormous but dimly understood parallel polis and economy. To outline their scope and texture, we turn now, in Part II, to the many types of commons that are flourishing as generative living systems.

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*Scholar Robert Brauneis had warned that the copyright was likely invalid “due to difficulties with proving authorship of the song, with potentially improper copyright notice upon first publication, and with renewal applications that seem only to cover particular arrangements of the song rather than the song itself.” Yet because no one had a big enough financial incentive to challenge the copyright in court, and because copyright law offers no easy way to invalidate a dubious copyright, “Happy Birthday to You” remained private property for generations until filmmaker Jennifer Nelson marshaled the resources to sue Warner/Chappell Music, Inc. in 2013. Two years later, a federal court affirmed that the copyright was indeed invalid, resulting in Warner/Chappell Music Group paying $14 million to settle claims to thousands of people who had paid licensing fees to use the song since 1949.

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