an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The problem of the commons has existed as long as humans have formed communities: how do you protect against overfishing in an ocean no one owns, but everyone uses? How do you prevent pollution in a sky that belongs to no one, but everyone breathes?
In talking about more traditional natural resource-based commons problems, economists and lawyers have largely debated the relative merits of two approaches to solving the commons problem:
letting the state resolve the problem (through laws); or
letting the market resolve the problem (through privatization).
An alternative approach, developed by Elinor Ostrom — and which won her a Nobel Prize in Economics in 2009 — escapes this binary, and suggests that a voluntary self-governing citizenry will create its own institutions and solutions to commons problems. Ostrom created a framework for analyzing and studying these institutions, as a means of creating societal preconditions to support their development.
But protecting and allocating natural resources like fish or air or land is slightly different than allocating culture and knowledge. “Knowledge commons” — as Brett Frischmann, Michael Madison, and Katherine Strandburg explain in Governing Knowledge Commons — are created by humans and are both intellectual and cultural. In natural resources, the problem of the commons stems from the self-interest individuals have in depleting a common resource; but in intellectual and cultural resources, the problem of the commons stems from the challenge of incentivizing the ongoing creation of these resources, while also recognizing that such contributions are public goods.
Madison and his colleagues apply Ostrom’s theory to a variety of knowledge commons case studies, from patent pools to Wikipedia, and the Associated Press to open source software. In so doing, they build on Ostrom’s framework and suggest a refined structure for analyzing the more abstract knowledge commons as well as delineating how knowledge commons differ from traditional commons.
This template for ongoing case studies can be used to analyze knowledge commons in many different fields. In analyzing genomic data commons, Peter Lee has done precisely that. Applying the theories of Ostrom and Madison, et al., Lee examines the unique features of the genomic data commons and the problems that have arisen — or not. Lee’s detailed history of the genomic data commons and its ongoing challenges — not only in maintaining itself as an institution, but in creating reliable results — illustrates precisely how complicated and multivariable institutions surrounding knowledge commons can be.
Kate Klonick is a Resident Fellow at the Yale Law School Information Society Project. She can be reached at klonick at gmail.com.