The creative commons are compromised by capital. Neoliberal logics reduce it to a place where people share for productivity but can never do it through non-market means. That turns the 1ac and means it gets commodified by the large corporations they seek to avoid.

Lessig (2001) frequently refers to the Internet as an innovation commons (p. 40) where innovators can develop and deploy new applications or content without the permission of others. He speaks of both commercial innovation as well as cultural innovation—though his emphasis is squarely on the notion of commercial innovation (the idea of cultural innovation is never fully developed). Lessig‘s emphasis on innovation is significant. By focusing on innovation he limits his analysis almost exclusively to the socalled productive uses of the commons. In other words, his commons is construed primarily as a resource from which capital is free to draw. Lessig (2001) states that ―free resources, or resources held in common, sometimes create more wealth and opportunity for society than those same resources held privately‖ (p. 86). Here Lessig is seeking a middle ground—to balance public and private control. When a resource has more value because of its openness and being held in common, then it makes the most sense to him to treat it as a commons. Like the law and economics scholars of the neoliberal economic tradition, Lessig‘s approach to the balance of interests is premised on economic efficiency. In other words, the terms of the debate are the same for both sides, whether they support increased authority for the private sphere or the public sphere. What is implicit in Lessig‘s conceptualization of a state-supported commons is that value is being constructed within a capitalist framework. This is why Lessig like many in the reformist camp is explicit in his denouncements of peer-to-peer file-sharing. Non-market systems of value do not enter into Lessig‘s analysis in any meaningful way despite his cryptic allusion to cultural innovation. A rhetorical focus on innovation allows Lessig to keep the terms of the debate safely within the capitalist framing.

The indeterminacy of Lessig‘s approach to resolving the contradiction of immaterial production is underscored by his constant vacillation between his adherences to private property on the one hand and property held in common on the other. At some points Lessig (2001) seems preoccupied with vocalizing his support for free-market values, proclaiming, ―I am fanatically pro-market, in the market‘s proper sphere‖ (p. 6), while at other points he obliquely seems to acknowledge his own complicity in subverting the market. For example, in the introduction to The Future of Ideas Lessig (2001) says that he is ―disgusted‖ by his friends who possess pirated DVD collections (p. xvii). Yet in the same book he admits to having pirated music off of Napster without paying for it—though he sheepishly claims that it constitutes only about five percent of his music (p. 194). Lessig‘s befuddled approach to property stems in large part from his refusal to confront the politics of property head-on. He incorrectly conflates personal property (his house and car) with corporate ownership of the means of production (Microsoft‘s source code), reasoning that society has equal interest in allowing both parties to keep it to themselves.

Ultimately the failure of Lessig‘s approach to the commons is that it defines the commons primarily by its utility to capital. The choice between two approaches— commons-based or proprietary—is simply a matter of transaction costs and the desired level of efficiency. The choice is not one between capitalism and something else. In truth, most of the authors surveyed here seek a more efficient incorporation of nonproprietary forms of production into the market system. All of the various formulations and rationalizations of legal scholars with regard to the appropriate role of the state in the establishment of a legal basis for the exchange of information commodities are founded on the desire to find stability for the capitalist organization of society. While these authors all recognize the growing schism between capital‘s increased reliance on immaterial production on the one hand and the degradation of capital‘s control over that production on the other, none seek to rupture the basic social relation. Whether they pine for a return to a historical balance of copyright or look forward to new innovations in copyright law, their vision of the commons is politically impotent. As Coleman and Dyer-Witheford (2007) explain:

The reformers, on the other hand, aim at an accommodation between commons and capital. The Creative Commons initiative, for example, argues that cultural production under digital conditions requires a relaxation of copyright regimes, and protection of the role of audiences and sources, not just authors, in creative processes. Heretical as this may sound in an era of neoliberalism, Creative Commons does not challenge the market system, but rather proposes greater formal assimilation within that system of users and adapter, recognized primarily as commercial agents and digital property holders. (947)

A social system of commoning cannot be delineated by its usefulness to capital. The economic and legal studies literatures simply lack the creative vision for the type of commons conceived as a part of the current study.