Using commonplace web tools, for example, I located a man in Great Britain who possessed a particular piece of gear I wanted yesterday, from a standing start, in a few seconds. I paid him, frictionlessly, at a fair commercial exchange rate, without credit card overhead or insecurity, through PayPal, and had a trackable international shipment, only notionally subject to customs inspection or detention, moving within two hours. Why all that works, and what happens if it fails, has almost nothing to do with transnationality—with the Vienna Convention, for example—and would be almost precisely the same if we were located in two different US cities. In fact, as eBay sellers who breached with me in the past discovered, the only effective differences in 21st-century discrete contracting occur when the two parties are physically close enough to be within the jurisdiction of the same small claims court, or, we might say, close enough to be outside the realm of contract law altogether.

In today’s digital economy, the unit of production is no longer either the household or the firm: it is the community. This break from the pattern of production in the last half millennium is made possible by the zero marginal cost rules and the drastically reduced cost of collaboration. In this digitally networked society, national boundaries do not impede community production: it is as easy to collaborate with someone in Shanghai, Vladivostok or Capetown as it is to collaborate with someone in the next street. More importantly, when a thousand people are collaborating, there’s no point in even asking questions about where everyone is. One of the lawyer’s most important intellectual resources since the beginning of lawyering—the infinitely sharpened, learned and gut-enhanced understanding of how we do it around here—ceases to be worth anything at all. Clay Shirky is wise to steal from James Joyce who stole from the collective nighttime unconscious the motto of twenty-first century social description: “here comes everybody.”

So instead of being held together by sacramentalized patriarchy or an agreement with finance capital, productive communities cohere through agreements about the terms for the voluntary aggregation and distribution of their “development in commons.” What holds the communities together, allocates their risks, and procedurally governs their disputes are the sharing rules, known as intellectual property licenses, that also set the terms on which they relate to the rest of the market.

A few years ago, if we wanted to know how the world’s most widely-used general reference works were produced, from the point of view of the legal blueprints, we’d have been asking about the corporate form, financing, and operational contractual relations of the Encyclopedia Britannica, Incorporated. Today, the crucial description would be of the GNU Free Document License and the forthcoming Wikimedia License that determine how the immense global community that produces the Wikipedias shares its products. Careful analysis of the Wikimedia Foundation would take five minutes and explain pretty much absolutely nothing except how the hosting bills for the servers are paid.