Cybertelecom Federal Internet Law & Policy An Educational Project

Commons Property

Notes

The concept of a commons is a particular notion of property that goes back to discussions of cattle grazing on public land, or commons, in England. In contrasting the commons with other types of property, common property has the characteristics of being publicly available where the users of the property cannot exclude other users, but their use is rivalrous. In this situation, the user of the common property captures a gain from the use of property that exceeds his cost, creating an incentive to continue or increase use the property until the property is depleted for all - creating what is known as the tragedy of the commons. [McFadden] In plain english, the cattle farmers will continue to permit their cattle to graze on the public commons until the land is overgrazed and no longer a valuable resource..

How Common Goods relate to other types of property:

	Excludable	Non Excludable
Rivalrous	Private Goods ex: food, clothing, toys, furniture, cars	Common Goods ex: water, fish, hunting game, Part 15 spectrum
Non Rivalrous	Club Goods Ex: Cable Television	Public Goods Ex: National Defense, free-to-ari TV

Source: Wikipedia Common-Pool Resource

Common Pool Resources

Tragedy of the Commons

"The simple and compelling idea is that when each individual who wants to use a common resource captures a private gain that exceeds his or her portion of a shared cost, all individuals have an incentive to increase usage until the resource id depleted. One clear antidote to this situation is to privatize the commons, and indeed this was exactly the solution adopted in England for shared agricultural lands. But not all goods are amenable to privatization, particularly goods where it is impossible or very costly to exclude use by others. Ostrom clarifies that when exclusion is not feasible, two classes of non privatizable goods emerge: public goods (goods where one person's consumption does not decrease another's consumption) and common resource pools (goods where one person's consumption does decrease the availability to others)." [Sicker p 2-3]

1833: concept of "tragedy of commons" introduced by William Lloyd

Examples

17th Century Cattle Grazing on public commons in England

Fish stock in international waters

Congestion on public highways

Part 15 Unlicensed spectrum

Public Private Borders

Where there is a mixture of common and private property, the owner of the private property can exclude others only with proper notice. [Elk River Sec. 50-31]

The purpose of these laws:

The purpose of this section is to enable private owners of real property situated within the city, and to which the public has some implicit right of access, to exclude persons from that property where the person has committed a crime on the premises or violated the properly posted rules of conduct for the property.

[Elk River Sec. 50-31(b)]

Trespass: One who trespasses must knowingly go (or be) on to the property of another without permission. [enotes] [Olexa]

There are two ways someone becomes a trespasser on private property:

(1) being told to leave by one in lawful possession of the property and [Riverside Chpt 9.40.300(A)]

(2) where posted notice informs the individual not to enter. [Riverside Chpt 9.40.300(A)] [Olexa]

Laws

• Riverside Municipal Code Section 9.04.300 Trespass on private property.
• A. No person shall enter or be present upon any private property or portion of private property not open to the general public without the consent of the owner, the owner's agent, or the person in lawful possession, where signs forbidding entry are displayed as provided in subsection F.
• B. No person shall enter upon any private property or portion of private property, not open to the general public, who within the immediately preceding six months was advised as follows: to leave and not return, and that if he or she returns to the property within six months of the advisement he or she will be subject to arrest. This advisement must be made by the owner, the owner's agent, the person in lawful possession or a peace officer at the request of the owner, owner's agent or person in lawful possession. The advisement shall be documented in writing by the individual making it and shall include the name of the person advised, the date, approximate time, address and type of property involved. Such documentation shall be retained for a minimum period of one year. This subsection is not violated if a person so advised enters the property within the designated six-month period, if he or she has been expressly authorized to do so by the owner, the owner's agent or a person in lawful possession.
• Trespassing on Private Property - Section 50-31, Elk River Minnesota
• (c) Issuance of trespass notice. A property manager or tenant may issue a trespass notice as provided under this section only under the following circumstances:
• Where there is probable cause to believe that the person has committed an act prohibited by state statute or city ordinance while on the covered premises, whether in or on a common area or in a tenant's space; or
• Where there is probable cause to believe that the person has violated the rules of conduct for the property which have been conspicuously posted at all public entranced to the property or have been provided to the person in writing by the property manager or tenant.

Papers

• Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom. Yale University Press. New Haven, CT., 2006
• Yochai Benkler and Helen Nissenbaum, “Commons-based Peer Production and Virtue,” The Journal of Political Philosophy, vol. 14, no. 4, 2006, pp. 394-419
• Douglas C. Sicker, Dirk Grunwald, Eric Anderson, Christian Doerr, Brita Munsinger, Anmol Sheth, Examining The Wireless Commons TPRC 2006 ("In this paper we use measurements of wireless networks and show that a common metric that leads people to believe there is a tragedy really demonstrates nothing of the sort. We also show how system architecture determines how rapidly a tragedy occurs.")
• Elinor Ostrom, How Types of goods and property rights jointly affect collective action, Journal of Theoretical Politics, 15(3):239-270, 2003.
• Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World. Random House. New York, NY, 2001
• Elinor Ostrom, Coping with tragedies of the commons. Annual Review of Political Science, 2:493-535, 1999.
• Yochai Benkler, The Commons as a Neglected Factor of Information Policy, TPRC 1998
• JR Wordie, The Chronology of English Enclosure, The Economic History Review, 1500-1914, 36(4):483-505, November 1983.
• Trespassing, enotes
• Michael Olexa and Joshua Cossey, Handbook of Florida Fence and Property Law: Visitors and Responsibilities to Visitors, University of Florida IFAS Extension (2006)
• "As previously mentioned, under Florida Statute, section 588.10, a property owner must provide proper notice to all parties that may enter the property. All gates, fence corners, and all boundaries that lay along waterways must have posted notice of proper size and composition. The postings can be no more than 500 feet apart. If no notice of trespassing is posted on a piece of property and the party cannot know who owns the land, the party may not be able to be assumed to be a trespasser."

Books

• Larry Lessig, the future of ideas (2001 Random House)

News

• Daniel McFadden, The Tragedy of the Commons, Forbes (September 10, 2001)