The Intercommons
Concept and Development, Opening Statements
Draft 1: 12/17/2001
Draft 2: 12/18-19/2001
This document proposes that current emerging monopoly control of communication through the marketplace of and creative expression on the Internet justifies creating an innovative new entity to counterbalance this control. We introduce the concept of this entity, the Intercommons, and suggest its underlying principles, and possible structure and implementation.
I. Background
The Problem
The Internet as a public medium for exchange of communication, content, and commerce is coming increasingly under monopoly control, made possible by a potent combination of corporate interests and related government action and inaction.
Specifically, software code and its counterpart in legal instruments provide the means to create Cyberspace, but also grant the power to regulate access, behavior, content and consequent economic and social power. The original keepers of this code were mostly independent persons and groups working in open sharing arrangements. This group no longer has the ability to set the direction of Cyberspace through its code, and market and governmental forces have largely passed this ability to a few corporate interests. As it is currently operating, the open source movement, the inheritor of the original Internet coder community, very likely lacks the ability to regain this control.
If the future evolution of democracy, economy, creativity and even ideas is dependent on the availability of an open and continually innovating Cyberspace, then our society is at risk of foregoing those benefits in the emerging environment of monopolistic control. If government is unwilling or unable to regulate the new monopoly operators of the essential new public service represented by Cyberspace, then independent collective action must be taken to provide a counterbalance to this monopoly power.
Why Current Responses Cannot Succeed
The threat of control can be a great energizer for innovation on the part of small players who seek to circumvent their seemingly diminishing options for market participation, as well as large players who do not want to base key strategies and infrastructure on solutions from one supplier. However motivated these would-be challengers are, largely uncoordinated actions of many players against very sophisticated monopoly powers who are able to tilt the scales of the justice system in their favor are also unlikely to produce viable alternatives to the monopolies. Over time, perhaps decades, the grip of the monopolies will be loosened by their own failures, by real changes in the market or by shifting government sentiment. We posit that waiting for this outcome will prove to be a costly exercise for society and that this cost is unacceptable.
The main opposing power in this case is willing, able and ready to engage in a marketplace, technological, political and legal conflict of proportions that cannot be understated. This opponent is an unrestrained, powerful monopoly that is highly competent in both technology and in garnering market share. The opponent has and will likely continue to engage in illegal business practices for which it has already been found guilty, and in the process it may make these practices the norm for other monopoly players.
There is only one strategy that can achieve success against such an opponent: seeking the same goals while using very different methods. That is, seek to maximize gains of market share, out-innovate the opponent in both software and legal code, while engaging in a process that includes and compounds rather than absorbs and destroys competing business entities.
Customers will deliver loyalty, economic and political power to any provider of excellent, innovative products, support and services that makes the customer successful. If there is a source of such products and people to back them up residing outside of the control of monopoly powers, then there is a starting point for building an alternative to any monopoly power.
This is only the first step, however. In the current changing landscape of intellectual property and business practices, any product or service considered valuable by a monopoly power can now be rather easily obtained by that power through a variety of legal, illegal and in-between methods. Therefore, any innovation capable of making inroads against a monopoly power must be placed outside the reach of that power, if at all possible. This is no small task.
Moreover, the opponent has not one, but hundreds of innovative products offered in an integrated package. Therefore, to make a significant challenge to the opponent, not one or two, but hundreds or thousands of products and associated supporting groups must be offered in an integrated way.
Further, the opponent largely controls the means of operation of, and to a lesser extent, the means of delivery of any product that could compete with it. Competitors who are offering products only on minority platforms not part of the monopoly power's almost total majority market share cannot make significant gains against the opponent. Given the new power of the monopoly and declining fortunes of its competitors, these minority platforms are likely to continue to decline in market presence, as has been the case for the past decade or more.
Control of the dominant platform gives the opponent the capacity to change the ability of products to function or to be accessible at all. Short of governmental intervention or successful class action, this is an advantage that if employed, can destroy most competitors. Therefore, competitors must build their offerings such that it is difficult for the opponent to affect them without affecting the opponent's own ability to operate.
It must be apparent by this point that no effort currently in the marketplace or announced will be capable of countering the dominant monopoly power given its advantages and the resultant capabilities required by any competing effort. No alliance of open source developers or proprietary commercial interests concentrated on minority platforms can make significant inroads. No consortium of large monopolistic entities also operating from the basis of minority platforms and a proven inability to innovate stands a chance against the opponent. And finally, no set of smaller, innovative entities acting independently to deliver uncoordinated solutions on the dominant player's platform can survive marketplace, legal or credibility challenges by the dominant monopoly.
II. A Potential Solution: Same Goals, Opposite Methods
The full scope of the challenge outlined above should not be understated, and we believe, cannot be met by any organization existing or planned. Therefore, we propose that a new entity be formed with the principles, properties and structure capable of providing a counterbalance to the monopoly powers of Cyberspace. That entity must achieve significant success in the marketplace, as well as protect its property and membership while enabling innovation to proceed. This section of the document is developed only in outline and begs for a polity of input and refinement. Let us start with some definitions.
Definitions:
Commons: a community place for the open exchange of communications and creative works, a marketplace for the exchange of tangible value, a cooperative workshop for collaborative invention of new art or technology. We use the term here as a "digital commons" in which the public spaces are represented using digital technology on the Internet.
Intercommons: an interconnected network of digital commons, derived from Internet, a protocol connecting networks. The Intercommons is both a framework and the protocols for creating one or more viable digital commons -- community property, public investment, environmental resource, social contract and nonprofit foundation all in one.
I. Purpose
The purpose of the Intercommons is to serve the public interest by creating, growing and protecting an open digital commons for free speech, invention, artistic expression and a fair market for products and services. In recognition that current trends threaten all of these elements, which are the very basis of all free societies of the future, this initiative must be engaged in with all due haste and forthright commitment.
By creating this Intercommons, an independent network owned and operated by its participants, we believe that sufficient social, economic, legal, and political power can be generated to ensure that Cyberspace continues to exist by and for the public interest.
II. Principles
It is our fundamental principle that no one entity or small group of entities, commercial or institutional, should control or otherwise direct the development of the recently emerged commons of Cyberspace.
Therefore, the toolmakers, entrepreneurs, providers of services and creators of objects of artistic expression should have access to and participate in directing a forum of open communication and a fair market into which they can offer and from which they can derive value.
We believe the intercommons should be founded on the following principles:
- open communications
- non-exclusivity
- open disclosure
- community generated reputation
- opt-in and opt-out
- seeking of beneficial cooperation
- negative value of negative acts
- value of existing in the long term
III. Structure and Implementation
Intercommons.org
Intercommons.org (".ORG") is proposed as a not-for-profit entity whose mission is to create and defend a public conservancy of intellectual property, initially in the area of Internet protocols, tools, artistic content and standards. This entity will serve a number of needs through innovating existing legal tools of the protection of property including licenses, copyright, patents, trademarks, public domain prior art publication, and other novel means of protection as evolved in the future.
Intercommons.org will serve the needs of member clients of two sister organizations, Intercommons.com and Intercommons.net. Intercommons.org will be supported from a variety of sources, including private philanthropy, donated services, and pre-paid legal service agreements deriving from the activities of served organizations, including the two described below. We invite you to visit the reference web site for Intercommons.org for further development of this concept.
Intercommons.com
Intercommons.com (".COM") is proposed as a for-profit non-shareholder membership corporation which operates a digital commons marketplace for the rights to the exchange of value. Modeled loosely on online auction services, Intercommons.com will provide the ability for member organizations and individuals to post the right to use property, that is, to obtain or make copies of tools or products of creative expression, utilize services, or obtain or trade other objects of value. Members would submit with each right a set of conditions for use, which may stipulate a financial cost or no cost, credits or other terms of use, barter arrangements, or requests for collaboration.
Members do not have to offer their rights exclusively to the Intercommons market and they are free to opt in or opt out rights to their offered value at any time. Members can apply for a number of services to go along with the offered property including pre-paid legal services, or value-added service agreements. We invite you to visit the reference web site for Intercommons.com for further examples of how this market might operate.
Intercommons.net
Intercommons.net (".NET") is proposed as a not-for-profit membership organization providing facilities for collaboration on technological and creative projects for the members of the Intercommons.com marketplace and others. .NET would provide a framework for collaborative invention and development and standards development, building on the Internet's original culture of innovation. We invite you to visit the reference web site for Intercommons.net for further development of this proposed organization.
Implementation by Example
A small company which has developed a series of products, some of which it feels can achieve wide adoption in the marketplace, needs to generate increased revenue, but also fears attacks on its business by monopoly or other players making intellectual property challenges in order to drive it to become part of the monopoly player or go out of business. This has become the norm in the high technology marketplace and has encouraged a business culture of "build it up and sell it off" either to the public markets or dominant monopolies. In this culture, it is rare that independent players can or are willing to emerge. Over time, especially as avenues to the public markets have closed, the only remaining avenue is to build for acquisition.
There are, however, companies that would like to stay in business on their own for the long term but have no vehicles to make this possible. The small company in this example has a mixture of products it passionately believes in, some acquired from other companies, some developed internally through projects and some composed of open source elements. Thus this company, which has stayed close to 100% privately owned and has no venture investment, has a great deal of latitude to decide what it will do with these products.
Enter the Intercommons. The company finds that it can join the Intercommons.com marketplace by simply applying and satisfying some basic means tests (such as being a valid entity legally in business and having the facilities and offerings to be able to support its participation). It then creates a series of listings for its products, each taking the form of "rights" and "conditions." For each class of product, it creates slightly different rights and conditions, based on the nature of the product and the goals it has for their propagation in the market:
A) Multi participant voice server and client software, composed of proprietary third party codec (for which the company pays a license fee) and proprietary company code wrapping.
- Rights: for-profit (see definition) 25-user licenses (quantity 100) offered at $499 each.
- Conditions: buyer may commercially mark up and resell, but obtains no rights to recopy; buyer must also provide service and support to end customers (or itself) from one of the following (see approved list of) service organizations. Product is considered a beta. Code is not published by provider but provider is open to co-development arrangements (contact provider). End user license is provided here.
B) Open source text chat solution, server and client, cross platform with rich customization:
- Rights: unlimited user licenses offered at no cost for personal or not-for-profit use (see definition). Source code is also published for not-for-profit use (under license described here). An unlimited number of for-profit use (see definition) licenses are offered at $49 per server.
- Conditions: user of open source code is required to contact and describe the proposed project with the provider for possible collaboration. For-profit users must obtain support and service from the approved list of providers (described here).
C) Reference Specification for an innovative instant messenger server based on a database and SOAP which the provider feels could be a valuable tool for free speech if available on more platforms. Specification references an existing implementation that provider is already selling. Specification is published here to establish prior art protection and attract development partners.
- Rights: rights to view specification and build complete renditions in code for any platform.
- Conditions: if code is to be built on this specification the user is required to contact the provider and to coordinate development. Provider has entered the network protocol portion of this specification to Intercommons.net where it is being engaged in an open standards process. All users are required to participate in that process. Code produced on this specification can be used by the developer in any way it sees fit, although provider requests that products be offered in some form on the Intercommons market.
Listings such as the ones above would be available to members of the Intercommons market and to non-members alike. Listings are provided through a dynamic database-driven interface similar to popular internet auction sites. Prices and availability may fluctuate as items are re-listed or greater quantities of rights are posted. In some cases, if supplies are short, items may be bid up from their minimum price.
Apart from the benefits of participation of its products in a large, high traffic marketplace for tools and services, our sample small business entity obtains additional benefits and takes on further responsibilities by joining the Intercommons market:
- It becomes a voting member of the Intercommons.com organization and will be presented with decisions that affect the entire market. It is also permitted and encouraged to organize at any level of the organization, creating a new board of directors and initiatives around localized issues.
- It may join the Intercommons.net developer and integrator community and promote its capabilities and tools to seek collaboration in larger projects.
- It may apply for a range of legal services from the Intercommons.org intellectual property conservancy. The conservancy may vote to provide the small company pro bono or discounted legal services to extend some measure of counsel or full intellectual property due diligence and protection. The conservancy may offer a package of pre-paid legal services whose retainer deposit can be accumulated through a percentage of sales through the Intercommons market.
Similar examples can be illustrated for the provider of objects of artistic creation, such as music or visual arts, services such as programming or content design, or business value addition such as resellers or market promoters. For further examples we invite you to visit our reference implementation web site for the Intercommons.com marketplace.
The above is a rough first draft of the vision of the Intercommons. The next steps are many, and we hope, will lead to the creation of a functioning and effective set of entities working in support of their mutual goals, for the benefit of their members and for the protection of the public commons of Cyberspace.
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