Primitive Accumulation in the Cultural Commons

1. The Cultural Commons

A culture is – or at least can be – a kind of commons. A culture is composed of all the shared systems of symbols and meanings produced and adopted by the cultural group. A culture provides the basis for social communication; in order to make ourselves understandable to one another, we must share a framework for communication and a culture provides that framework. At the same time, culture is created and recreated through the process of social communication; only those symbols and meanings that are drawn upon regularly enough to remain widely comprehensible are part of the shared culture (Turner 2014:164, 194; Pietrykowski 2007: 261). Conceiving of culture as a commons recognizes a culture’s collective production and collective use.

Like other common-pool resources, the pool of shared meanings supplied by a culture can be both means of subsistence and means of production. We draw on the cultural commons to meet the basic human need of making our lives comprehensible to ourselves and to others (subsistence) and we draw on the cultural commons for material to rearrange and recombine in the generation of new meanings (production). New meanings may augment or displace old, enlarging and/or reshaping the commons. The shared-meaning aspect of the cultural commons is nonrival. ¹ Meanings, unlike pastures and fisheries, are strengthened rather than depleted with use.

There is another complementary facet to the cultural commons, and that is the shared pool of attention. A meaning belongs to the cultural commons only to the extent that the meaning is deployed in social communication, the extent to which knowledge of that meaning is widely shared, the extent to which anyone pays attention. Both collective and individual human survival depend on our bestowing our attention in particular ways. Our collective life requires us to share some objects of attention; without a cultural commons setting a basic framework of thought “all contact between [human] minds would be impossible, and with that, all life together” (Durkheim 1966: 30). For an individual, social isolation, the lack of attention from other people can be deadly. And attention, unlike meaning, is rival. Like pastures and fisheries, our capacity to attend can be overextended and depleted.

In contemporary capitalism, however, the cultural realm has been incorporated into the economic realm in such a way that the common nature of culture is disintegrating before our eyes. The cultural commons is so interwoven with commodity forms that the commons is diminished. Money and markets play an expanding role in the ability to access and deploy cultural resources. Capital has found it profitable to privatize both the meaning and attention facets of culture. And as more of the components of culture are bottled in private property forms, capital’s quest for profit takes on an exaggerated role in driving the dynamics of cultural change.

This paper draws a three-stage model of communications and creates a taxonomy of the commodity forms that pervade each of the stages. Each communicative commodity stands in a different relation to the cultural commons and I analyze these commodity-commons linkages. Lastly, I draw out the implications of this analysis for our understanding of the democratic ideal of freedom of expression.

2. The Privatization of the Cultural Commons

A culture’s symbolic system is simultaneously (re)produced and consumed ² through the process of social communication. We can think of successful communications in three stages: the first communicative task is to gain access to attention by intercepting the perceptual field of an audience, usually eyes or ears. The second task is to hold the gaze or ear and convey… something: an impression, some piece of information, an emotion. In the case of communication originating with an advertiser, the goal is often to convey some sense of familiarity with a specific product and its use. Lastly, if the first two tasks are achieved, the audience will have received and retained an impression, which will have become a social fact, an element of social communication. In the case of consumer goods, this impression is a brand identity. Advertisers and marketers call the impression left by communications “mindshare.” Different components of the communications process have each gone through a distinct historical process of commodification resulting in distinct commodity forms.

The creation of private property rights in the basic components of communication and culture is contemporary informationalized capitalism’s version of primitive accumulation, but the roots of the process reach back to an earlier phase. The earliest waves of cultural primitive accumulation in the United States began in the era of U.S. industrial capitalism’s most rapid development. As late-nineteenth-century industrial capitalists attempted to deal with the realization problem of mass production, they developed an approach to marketing that emphasized the management of demand through advertising and branding (Laird 1998; Strasser 1989). To accomplish this, they and their allies in the nascent advertising industry pushed to commodify access to attention through a standardized market for advertising space and pushed to establish brands as private property. My study centers on the United States, but this movement is not unique to the United States. A cross-national comparative study would illuminate interesting patterns and variations in the ways in which the privatization of the cultural commons figures in capitalist development. A wider, global lens could situate any particular national study, including this one, in its wider context.

The commodity version of the first part of the communications task, access to attention, is advertising space. When an advertiser buys advertising space (or, in broadcast media advertising, advertising time), the purpose of the purchase is to gain access to audience attention (Jhally 1987). Beginning in the late nineteenth century, the businesses of selling newspaper, magazine, billboard, and streetcar advertising space were modernized, standardized, and greatly expanded. Advertisers, advertising agents, and suppliers of media advertising space negotiated means of quantifying and verifying attention units, typically the number of gazes intercepted. They negotiated – or battled – amongst themselves to establish market structure and prevailed upon government from the local to the federal level to define and defend new property rights. By 1920, advertisers could, with a relatively high degree of certainty, purchase access to the eyes of desired audiences in a nationally integrated market in access to audience attention (Sherman 2014). When broadcast media emerged after 1920, first radio and then television were also incorporated into the attention market. In the last twenty years, the internet, too, has been tamed into a site for the appropriation and sale of audience attention; the reason that most of what we do online is free is that we are the product. (Commenting on a recent rise in the Nasdaq, reporter Rana Foroohar matter-of-factly, without seeming to imply any radical critique, called the boom the result of a land grab, where the “land” being grabbed is eyeballs (The Takeaway, November 26, 2013).) The measurement of attention units has been renegotiated to incorporate information about time spent on a web page and click rates.

When a sale of audience attention takes place, units of attention have been extracted from the common-pool resource system of our collective capacity to attend and sell in commodity form. Units of a common-pool resource can often be extracted and sold; the fish in the water are a part of a common-pool resource system but the fish in the net of the commercial fisherman are a commodity (Ostrom 1990: 30). Similarly, our collective capacity to pay attention to one another is part of a cultural common pool resource system, but the attention that is intercepted by communications media and sold to advertisers is a commodity (Jhally 1987). And, also similarly, our attention can be overfished. The dynamics of capitalist competition often drive an advertising arms race. Each advertiser tries to outshout its competitors by purchasing a larger swath of our field of vision. As we become overwhelmed, each purchased sliver of our field of vision becomes less and less effective at holding our attention and so advertisers scramble to purchase more. The story follows the script Hardin outlined in “The Tragedy of the Commons” (1968). Ostrom and others have shown that tragic results for common-pool resources are not inevitable, but in this case we did not avert depletion.

There are a variety of commodity versions of the second part of the communications task, most falling under the wide umbrella of intellectual property. Intellectual property rights make it possible to sell or lease communicative content. A full history of the development of intellectual property in the United States is beyond the scope of this paper, but the expansion of property rights in information and ideas is undeniable. Some have already identified the new property rights as a contemporary immaterial analogue of the land enclosures that accompanied the emergence of capitalism in Britain centuries ago, and there is a growing literature calling for the treatment of knowledge as a commons (Hess and Ostrom 2005). Enclosure is not a perfect analogy for all intellectual property, however. New copyright protected cultural production is not subtracted from the commons; it begins its life as private property. Nevertheless, new cultural production still depends on the commons.

Even when cultural artifacts hold private property status, the cultural commons necessarily supplied inputs; new cultural production always draws from the commons whether or not it contributes to the commons. If new production did not draw its inputs from the commons, it would not share in the shared symbolic system of the culture and it would be incomprehensible. Over the course of the twentieth century, the once reasonably predictable progression of initially-copyrighted artistic content into the public domain slowed, sometimes halted. The length of copyright protection has been extended repeatedly (including every time Mickey Mouse would otherwise have entered the public domain); it has never been shortened (Bollier 2005). In the early years of this century, the progression into the public domain has even been reversed. Some content has been clawed back out of the public domain and re-privatized. The Supreme Court’s October 2011 decision in the case of Golan v. Holder affirmed that copyright protection can be applied to something that was previously free of private property restrictions. (The long-dead composer) Sergei Prokofiev’s Peter and the Wolf was among the resulting losses to the public domain (Ginsburg 2012). ³ The Disney Corporation repeatedly, unabashedly draws source material for their films and other products from folk culture or history – none of the Disney princesses were sui generis – and then repeatedly, unabashedly, claims copyright protection for their particular versions of characters and stories, sealing them off from the continuous adaptation and evolution of folk culture (Bollier 2005).

Widely shared cultural reference points are a piece of a common culture, but very often do not, in economic terms, belong to the cultural commons. Access is for paying customers and pirates only. We all draw from the common pool of culture to make new meanings for our own use, but some producers of new meanings – novelists, filmmakers, lobbyists, and advertising creators, for example – produce those meanings for sale. Just as in a physical commons, units of a common-pool resource, when not consumed or sold immediately, can be extracted and used as inputs in a production process, and then the output can be sold (Ostrom 1990: 30). Through copyrighting, meanings produced as commodities to be sold to audiences, such as novels or films, can retain their private property status even when they become widely shared cultural reference points. Rather than replenishing the cultural commons with the new production built on source material from the commons, the copyrighted portions of the resource system of shared meaning remain privatized.

A privately owned slice of the system of shared meanings is potentially a highly profitable asset. For example, Disney princess-themed products are key props in the gender socialization of millions of children in the United States. Disney finds it well worth their while – and, more to the point, their investment expenditures on intellectual property lawyers and lobbyists – to defend their monopoly on the most widely, immediately identifiable depictions of Snow White, Sleeping Beauty, and so on. Learning to be female, for many, involves paying tribute to the Disney Corporation to hear their retelling of folk tales and display their images of the stories’ heroines. By managing those princess pieces of intellectual property effectively as capital assets, Disney captures an enviably large and stable revenue stream.

The third stage of social communication, the impression that remains in the mind of the audience, takes on commodity form as a brand. A brand erects property rights around the impression left in our minds by the interaction of advertising and more spontaneous social communication about goods. Legal decisions in England in the eighteenth century had explicitly determined that goodwill could not be salable legal property because goodwill was produced by customers and the customers were not owned by the business in question, so their goodwill could not be sold by the business (Strasser 1989: 43). The mass producers who rose to dominance after the U.S. Civil War pushed hard to establish goodwill as a business asset; not just an asset in the sense of something beneficial, but an asset in the sense of a piece of property with a monetary equivalent. Without trademark protection, their competitors could (and often did) skim off a share of the return to advertising. The category leaders did not want smaller competitors riding along in their marketing wake and lobbied hard for trademark protection. They found ready allies among the professionals in the still-young advertising industry, who realized that trademark protection would increase the value of the audience attention their own industry packaged and sold to advertisers. The first round of trademark laws passed in the 1880s and the laws have been revised and expanded repeatedly since (Strasser 1989; Laird 1998; Rogers 1914). The legal status achieved by trademarks in the United States as a result of the new laws meant that goodwill became salable after all. This meant in turn that customers, or at least our attention, impressions, cognitive and emotional relations to the symbols associated with brand identity, could be sold.

The breadth of the protection accorded to privatized meanings has increased. When trademark protection began, the standard for identifying infringement was the potential for customer confusion: is it likely that customers intending to buy brand X would mistakenly purchase brand Y? Outright counterfeits are still a major concern for brand owners, but the protections offered to branded meanings have also expanded to include dilution: is it likely that the attention and set of mental associations enjoyed by brand X will be altered by the branding and marketing of brand Y (Arvidsson 2006: 6)?

Branding not only commodifies resource units drawn from the cultural commons, it privatizes portions of the cultural common resource system itself. A brand exists only to the extent that the brand identity is part of the shared symbolic system, the extent that the population at large recognizes and uses the brand in communication. Through branding, meanings associated with a product or company that are (re)produced broadly through social communication are granted private property status. In the case of copyrights, the meanings in question begin as commodities but can pass into cultural commons (known to intellectual property law as the public domain) when the copyright expires. In the case of branding, the meanings are produced in the cultural commons and then privatized. As the reach of trademark protection expands from confusion to dilution, the enclosures expand to encompass wider and wider swaths of the cultural landscape. Trademark-protected symbols are not only withheld from counterfeiters and close imitators in the same product category, but also from those marketing unrelated products. Reaching even farther, trademark-protected symbols are withheld not only from those who would deploy them in an attempt to sell, but also from those wanting to draw on some of the most widely-recognized symbols their culture affords for purposes of artistic creation and social commentary.

Faced with the expanding reach of privatized forms of culture, we have discovered that, in fact, we never had a common; we had only an ungoverned open access resource. From the last few decades of the nineteenth century to the present, both meaning and attention have been the objects of primitive accumulation on a stunning scale. The components of culture and of social communication have become commodities rather than common-pool resources. Once help meets facilitating the circuits of capital flowing through consumer goods manufacturing, private property forms of access to eyes and mindshare have taken on a life of their own. In our era of informationalized capitalism, the mining of our attention and the privatization of meanings have widened in scope. Intangible assets – including brands, patents, and intellectual property rights – made up less than a third of total nonfinancial corporation assets in 1980, but that share rose to nearly half in 2000 (Lindemann 2010). Rosa Luxemburg’s argument that primitive accumulation is never finished is vividly illustrated once again.

As in earlier waves of primitive accumulation, participation in markets becomes a necessity for those newly deprived of access to common resources. The greater the extent of the privatization of culture, the less we are able to meet our needs by drawing from the commons and modifying non-commodified cultural resources through our own non-commodified cultural work. The ability to access and deploy cultural symbols becomes ever more tightly identified with the ability to pay.

Admittedly, unequal access to cultural resources is not unique to contemporary capitalism. Bourdieu coined the term “cultural capital” to suggest that the ability to deploy cultural resources could be understood by analogy to money capital and that, like money capital, cultural capital contributes to sustaining persistent power inequalities. Although the same people often have access to both money and cultural capital, cultural capital can at times be a (limited, partial) substitute for money capital as a means to wield social power (Bourdieu 1977; Turner 2014). What is unique about contemporary capitalism is that more cultural resources than ever before have been encased in the legal armor of private property protections. Our contemporary capitalist phase, what Michael Hardt and Antonio Negri call informationalized capitalism (Hardt and Negri 2000: 280-1), carves private property out of the cultural commons in a dizzying array of ways. As the components and vessels of culture – texts, songs, images, human gazes and attention, knowledge and ideas, etc. – are established as forms of private property, cultural capital and money capital become more tightly entwined.

Not only is the culture of our capitalist society consistent with commodification and market exchange (of goods and labor power) but a large portion of our cultural production and dissemination is accomplished through the processes commodification and market exchange. The “problem of commodities,” Lukács wrote, is not just the central problem of economics; it is “the central structural problem of capitalist society in all its aspects.” Commodification, he argued, makes relations among people take on the form of an external thing, seemingly independent of the people whose relations to one another are now obscured. He was intensely interested in how this process, which he termed reification, affects human consciousness and culture. Among its effects, he noted that “[r]eification requires that a society should learn to satisfy all its needs in terms of commodity exchange” (Lukács 1968). This process has so doubled back on itself that we are now pressured to meet even our need for meaning through commodity exchange. The meanings that are produced and sold, and the batches into which our attention is sorted and sold so that we can be sold to, are those that capital finds most profitable, not those that most effectively meet our needs.

However, attention, meanings, and mindshare are made of slippery stuff, so the road toward ownership of culture is not straight and smooth. Adorno noted that people appear to be influenced by the culture industry and yet not completely taken in, “both ensnared and not ensnared … a double, self-contradictory consciousness is present” (Adorno 2000). Money can buy entry to an audience’s field of vision, but no guarantee of an attentive gaze. Locking up copyrighted material too tightly risks driving away the most committed consumers; fan fiction and fan videos appropriate copyrighted characters and images (sometimes apologetically, sometimes assertively) to produce new stories, but the same fans who appropriate also buy. Even without necessarily arriving at a fully articulated critique of the entire system of a privatized cultural realm, the consumption practices of the most ardent adopters of a brand often make an implicit ownership claim, overlaying new associations never intended by the legal owner of the brand, or resisting rebranding. With more explicit intention, brandjammers and adbusters work to reshape a brand’s set of associations. Creative commons licensing and wikis build non-market means of sharing knowledge.

3. Some Consequences of the Commodification of Communications for the Creation of a Common Culture

The consequences of the commodification of communication for the creation of a common culture are complex and contradictory. During some periods, in some contexts, commodified communications contributed to the construction of widely shared meanings. When a large proportion of the population both is accessed by the same attention buyers and has access to the same purveyors of privatized meanings, we can have a broadly shared culture, what we might call a pseudo-common. Even in a regime of cultural private property we can find commonalities in talking about the local sports team or the popular TV show around the proverbial water cooler. However, when the population is sorted into smaller attention batches, we have fewer common cultural reference points.

In social and political units larger than an everyone-knows-everyone tribe, conceiving of the community is an act of imagination. Benedict Anderson describes the newspapers’ contribution to the generation of imagined communities around the turn of the twentieth century, the period of the emergence of modern nationalism. The experience of reading something that you know that people you do not know are also reading produces, he argues, an awareness of shared experience, shared belonging to a common social unit. This is doubly so when, as in the narrative structure of newspaper reporting, the shared reading material tells stories about the common social unit. The newspaper does not just report the fate of nations; it creates the nation as a coherent entity with a singular fate (Anderson 1991; cf. Hofstadter 1972: 187 on the same phenomenon at the city level). Anderson focused on the editorial content of newspapers read by audiences who were interested purchasers of the content. However, an important part of the common experience of newspaper readership is exposure to the same advertising, belonging to the same bulk order of audience attention sold by newspaper to advertiser. The shared experience of having our attention sold to the same buyers is a source of commonality, much as is the shared experience of selling labor power to industry as a member of the working class, for example.

Indeed, the two commonalities can work in conjunction to strengthen the sense of shared culture and shared destiny. In The Labor Question in America Roseanne Currarino shows how important the ability to fully participate in a shared consumer culture was to Guilded Age labor organizers and social reformers. Given that the dominant culture was already becoming privatized, full citizenship required the purchasing power to buy in, so demanding the right of access to consumer culture through the market was an urgent goal (Currarino 2011). Making a New Deal, Lizabeth Cohen’s study of industrial labor in Chicago in the 1920s and 1930s, finds that shared participation in American mass culture was an important contributor to the construction of working class consciousness and the ability to organize. Immigrants’ children who spoke English, watched the same movies, listened to the same radio shows, and bought the same brand name goods at the same chain retail stores could imagine and create a multi-ethnic community of working class solidarity in ways that their parents had not been able to (Cohen 1990).

But the commodification of audience attention also contains a contradictory tendency toward fragmentation. The dominant trend in contemporary information capitalism is for the economics of attention selling to splinter the pseudo-common of mass media. Sellers of advertising space increasingly sell not just access to our eyes but information about what we are likely to respond to. Advertisers do not want to throw money away on purchasing access to the eyes and ears of audiences who are unlikely to respond, so the sellers of attention race to provide more and more information about us to advertisers and sort us through finer and finer sieves so that the advertising can be more and more precisely matched to its target. Even in traditional print media, many magazines have for decades been selling subscriber information to advertisers and printing multiple versions of each issue so that different advertisers can purchase access to different subscribers (Maas and Roman 1992: 91). The proliferation of television channels and radio stations yields more narrowcasting than broadcasting and digital TV delivery opens the way for individuation even within audiences for the same shows (Dureau n.d.). The most developed extremes are to be found online where the technologies of digital surveillance yield millions of personalized internets guiding us to different content ⁴ and showing each of us a different set of algorithmically targeted advertisements (Pariser 2011).

We attend most readily to content that is already comprehensible in our given frame of reference. This creates a self-reinforcing loop: since attention is most effectively held by ideas that are already familiar and advertisers most often want to purchase just those audiences who are most likely to pay attention to the advertisement, we are increasingly sorted into smaller and more disjointed batches for sale to advertisers (Pariser 2011; Jones 2004). Those who sell audience attention by generating attractive content that will draw our eyes and ears respond to advertisers’ demands by generating finely differentiated content in order to achieve the sorting. Others, such as Google, who do not create content but who instead act as curators, occupy the tremendously powerful role of gatekeepers to audience attention. They direct us to differentiated content and deliver our gaze to advertisers along the way. The broad pseudo-common possible under a privatized and centralized, broadcast-dominated cultural regime (think The Ed Sullivan Show) splinters into many distinct pseudo-commons with fewer areas of overlap (think YouTube or Facebook). Each imagined community grows smaller and more homogenous, while the members of different pseudo-commons become incomprehensible to one another.

For those who had been excluded from and rendered invisible by the mass mainstream, becoming a segmented marketing target has its benefits; Cohen explains that becoming a courted market segment “[gave] often disempowered Americans, such as workers, feminists, teenagers, African Americans, and Latinos, a kind of legitimacy through proving their worth in the consumer marketplace.” However, segmented marketing also reinforced existing social divisions, complementing rather than challenging widespread residential and commercial segregation. Separate has never yet been equal (Cohen 2003: 331). And segmentation threatens the health of the whole, not only the subordinate. “[S]ociety can live only if there is a sufficient unity of outlooks among the individuals and groups comprising it,” Maurice Halbwachs wrote in his study of collective memory (1992). The fragmentation resulting from data mining and the sale of attention in customized collections rather than broad batches can therefore have dangerous consequences. The attention sorting that originated with consumer goods marketers selling soap has been taken up by political campaigns selling candidates (Cohen 2003: 343). Segmentation of attention batches, along with geographic residential sorting and gerrymandering, contributes to the extremes of political partisanship that have all but halted the federal government’s ability to carry out the functions of governance.

The intensely active and competitive market for our attention not only fragments our collective attention, it depletes our capacities. As early as the 1890s the advertising trade press was full of articles concerning advertising saturation and the difficulty of cutting through the clutter, and the scarcity of attention has been a consistent theme in the advertising literature ever since. There are more demands on our attention than we can accommodate, and some demands have more money behind them than others. Decades after the experiences of World War II, orphans demonstrated that infants given adequate nutrition, hygiene, and shelter nonetheless died without the affective labor of a caregiver’s attention (Gerber 1998); Sherry Turkle’s research finds that modern children are in desperate competition with internet-enabled devices for their parents’ attention (Tippett 2012). Our epidemic of attention deficit disorder is as much a phenomenon of the cultural economy as it is a result of individual neurological quirks.

4. Consequences of the Commodification of Communications for Freedom of Expression

The dominant modern conception of freedom of expression begins with the metaphor of the free market. Although it was written in dissent, Justice Oliver Wendell Holmes’s opinion in the case of Schenk vs. United States in 1919 became the foundation for contemporary free speech theory. He wrote (quoted in Bollinger 1986: 18),

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. (emphasis added)

Even as metaphor, the marketplace of ideas conception of free speech has some troubling implications and inconsistencies. There is a contradiction at its core; using the law to restrict expression that an overwhelming majority of us consider to be harmful, e.g. advocacy of genocide, would itself be a form of expression, but we deny ourselves the use of the expressive (and coercive) capacity of the law up until the very moment the speech is materially acted upon. The marketplace of ideas model treats ideas as though they were fully separable from the people who think them, and people as though they were distinct from the ideas they hold, which leaves us with a very thin conception of personhood. The presumption that the best and truest ideas will win out in competition is dubious (Bollinger 1986; Radin 1996). But the free marketplace of ideas also has some undeniable strengths as an ideal, especially in its protection of minority viewpoints from direct government censorship, which provides for both individual self-expression and the possibility that currently unpopular viewpoints will prove persuasive and lead to social change.

However, as the marketplace of ideas becomes literal rather than metaphoric, the contradictions of the ideal magnify, the strengths wither. To the extent that speech becomes a commodity, the First Amendment right to freedom of speech becomes a form of consumer sovereignty. If we consider speech and attention to be commodities rather than acts of political and social participation through which both the individual and the collective are constituted, the Supreme Court’s 2010 Citizen’s United decision (Kennedy 2010) has an internal coherence. Anyone can launch into the discursive sphere as much speech as they can pay for and buy access to as many eyes and ears as they can afford. Limitations on spending and limitations on speech become one and the same. (The best way to get rich off the U.S. political process – now an even better road to riches than before – is to make campaign advertisements.) Speech-as-property also grants speech rights to any entity that can make a purchase, even non-persons. The protection of commodity speech is indispensable to the legal fiction of corporate personhood.

The privatized, branded cultural pseudo-common not only amplifies the speech of big spenders, but also constrains and suppresses noncommodified expression. No matter how much advertising speech and access to audience attention a brand buys, the brand becomes a social reality only when given meaning and granted attention in social practice (Arvidsson 2006). The social communications work of making a brand is a new kind of doubly-free labor, free as in no-monetary-cost to the brand owner and also free as in no-direct-supervision or compulsion. A brand owner eagerly cultivates and appropriates the economic spoils of free (as in no-monetary-cost) expression that produces meanings and draws attention beneficial to the brand. But the brand owner will go to great lengths to suppress, or at least drown out, expression that damages the brand. This can mean countering the expression of brand haters, who denigrate the brand or try to shift the set of mental associations coupled with the brand name for some particular purpose, such as fair trade activists working to draw attention to the conditions under which the branded good is produced. Brand owners will also, however, sometimes go to great lengths to suppress the speech of the brand’s greatest enthusiasts. When Adidas enthusiasts, through their consumer cultural practice, built up a fashion association with the brand, Adidas pursued an expensive and aggressive advertising campaign emphasizing the use of their shoes as athletic gear rather than as a fashion accessory (Tungate 2007: 200). Under the privatized cultural pseudo-common, meaning-making contributions that are not compatible with the private property rights and profitability of existing ideas and brands are suppressed. Brands have limited tolerance for creativity; they encourage us to construct a social identity through our choices from the menu of options they provide rather than through generation of our own new contributions to the range of the possible.

The means of production become capital only when access is restricted and use is granted at the discretion of the owners. Despite the difficulties inherent in the task and a variety of diffuse forms of resistance, our era of capitalism is driving in the direction of converting the means of cultural production into capital. Our efforts to meet our need for meaning integrates us into the circuits of (informationalized) capital. Constructing a self and a social world out of privately owned cultural materials leaves us vulnerable. Not only are we vulnerable to the possibility that our budget will be insufficient to meet our social needs, but we are also vulnerable to the possibility that what we need will not be produced at all. Some far-off marketing strategy meeting results in a decision to reshape a brand identity, and a marker we had used to identify ourselves is suddenly withdrawn. If we use the widely shared symbolic language of a brand to construct a meaning inconsistent with the brand owner’s interests, we could be sued (Bollier 2005).

When speech and brands are property, equal protection of free speech rights for all is impossible. Sometimes property rights conflict and any resolution necessarily favors one party’s property rights over the other (Friedman 2003). This is what happens when a trademark infringement case is decided. For example, thanks to the Federal Trademark Dilution Act of 2006, Victoria’s Secret successfully prevented a small adult novelty shop owner from continuing to use his own name – Victor – in the name of his store because, they said, the store name “Victor’s Little Secret” was too close to “Victoria’s Secret” and infringed on their brand identity (Barrouquere 2010). Too, when speech is produced under capitalist relations of production, the speech rights of the direct appropriator of the speech (and, after sale, those of the purchasers of that speech) take precedence over the speech rights of the direct producers. Once the cultural commons is privatized, access to the cultural means of subsistence and production is structured by the rules of the market, where money is the measure of value.

5. (Re)Constructing the Cultural Commons

The power of the marketplace of ideas conception of freedom of expression has limited our ability to confront the consequences of the literal marketplace of ideas. We need, instead, a conception of freedom of expression that recognizes the problem of commodified communications. We need communicative, cultural practices that will help us to imagine a community as large as our real interdependencies. We need to construct cultural commons to which all have equal access; a voice, like a vote, should belong by right to every person, to be exercised without budget constraints, and our conception of voice must include access to ears. We might begin by returning to the economic model of the commons.

Michael Hardt and Antonio Negri are hopeful about the possibility of a new common and an informational communism. With immaterial labor, cooperation is not imposed as in earlier forms of labor, they explain,

but rather, cooperation is completely immanent to the laboring activity itself. This fact calls into question the old notion (common to classical and Marxian political economics) by which labor power is conceived as “variable capital,” that is, a force that is activated and made coherent only by capital, because the cooperative powers of labor power (particularly immaterial labor power) afford labor the possibility of valorizing itself. Brains and bodies still need others to produce value, but the others they need are not necessarily provided by capital and its capacities to orchestrate production. Today, productivity, wealth, and the creation of social surpluses take the form of cooperative interactivity through linguistic, communicational, and affective networks. In the expression of its own creative energies, immaterial labor thus seems to provide the potential for a kind of spontaneous and elementary communism. (Hardt and Negri 2000: 294)

The community produces and what is produced is community. Private property, they conclude, “becomes increasingly nonsensical in this context” (ibid.: 302). What their account overlooks is that even as some labor power becomes decommodified and capital’s role in orchestrating the production of some (especially immaterial) use values diminishes, the commodification of our attention and personal information intensifies and the enclosure of shared meanings accelerates. (To be fair, this is much clearer now, in 2015, than it was in 2000.)

The communication networks Hardt and Negri celebrate require material support. As currently constituted, the primary way in which exchange value is extracted from communications networks is through the mining and sale of users’ personal information and attention. Advertisers then purchase this information and attention to cultivate the creation of brands. The decentralization of the communications network, it turns out, is not necessarily democratizing. The content that comes to our attention and the audiences we find for our speech are selected on the basis of what will make for a profitable trade in attention and meaning. This can result in even less generation of commonality than the old broadcast communication model. Though certainly different, networked culture can be just as biased toward constructing capitalist ways of knowing. And the ways of knowing that we construct become private property harnessed to the process of accumulation.

The material support for networks could be managed differently, however. The technology is not deterministic; it did not automatically generate a common, but neither is the current private property regime inevitable and final. Plenty of time, experimentation, and “cooperative interactivity” have gone into incorporating each new communications technology, including the internet, into our social reality and there is no reason to think our capacity to experiment and change is spent. Indeed, experimentation with alternatives to privatized culture is bravely underway.

6. Conclusion

In our current informationalized capitalist context audience attention is available as a commodity, speech is available as a commodity, and speech that has successfully commanded attention is monetized as brands. We still participate in noncommodified speech and attention, and some mindshare still belongs to the commons, but these everywhere confront and interact with their commodified counterparts. Through extraction of attention and enclosure of meaning, the cultural commons is diminished and depleted.

We have not tended to think of culture as property, but when the means of meaning-making confront us as commodities, we must. A private property regime is not the only property regime possible, however. What might it look like to treat the cultural commons as a common-pool resource system? We can make no a priori prescription for how the cultural commons should be managed. As Elinor Ostrom argued, “‘getting the institutions right’ is a difficult, time-consuming, conflict-invoking process” (1990: 14). Even as primitive accumulation encroaches into new areas of the cultural commons, experiments in reconstructing the commons – such as Wikipedia – pop up elsewhere. To reconstruct the cultural commons, common property will have to be clawed back from a private property regime and this will only make the conflict more acute. Difficult, time-consuming, and conflict-invoking as it may be, learning to collectively govern the cultural commons is our urgent task.