The Digital Enclosure
How Microsoft’s AI Confessed to the Theft of the Commons
The Digital Enclosure isn’t an accident; it’s an operating model.
Filed in spirit as Amicus Curiae in J. Doe 1 et al. v. GitHub, Inc., et al.
“The road to the free market was opened and kept open by an enormous increase in continuous, centrally organized and controlled interventionism.”
— Karl Polanyi, The Great Transformation
James Boyle warned of a Second Enclosure Movement, the fencing off of the digital commons under the banner of intellectual property. GitHub Copilot was its crowning seizure: billions of lines of licensed code, stripped of attribution, ingested to build a private automation empire.
Yet Polanyi’s double movement is already stirring. Markets disembed themselves from social relations; societies push back.
The Does v. GitHub appeal in the Ninth Circuit is not about convenience or efficiency. It is the first tremor of regulatory recoil.
The question: Will the law bless the enclosure, or reclaim the commons?
I. The Extraction Event - Breaking the Gift and the Commons
“Commons are not just resources; they are governed institutions with design principles that make them durable.”
- Elinor Ostrom
GitHub was not a landfill. It was a commons-based peer production system, governed by three reciprocal norms:
Attribution (recognize the author)
License carry-through (preserve the terms)
Reciprocity (share alike, when required)
Copilot violated all three.
This was not innovation. This was digital primitive accumulation, the separation of producer from product, executed by algorithm.
II. Code is Law and Copilot Rewrote the Constitution of the Commons
“Code is law.” - Lawrence Lessig
Copilot’s interface is governance.
Attribution off by default → a policy choice
Copyright metadata stripped at ingestion → intentional silence
IDE telemetry feeding the model → surveillance as improvement loop
Microsoft did not simply break norms. It rewrote them in silicon.
III. The Jekyll Carve-Out: Ethics Sold as Enterprise Licensing
“Privacy policies are not ethics statements, but revenue architectures.”
- Shoshana Zuboff (adapted)
Microsoft’s own documentation states:
“Prompts, responses, and data accessed through Microsoft Graph aren’t used to train foundation LLMs.”
Meaning: Microsoft has already built a functioning data segregation mechanism, it simply chose not to apply it to the open-source commons.
This is a two-tier citizenship of the digital world:
- Digital proletariat: labor dispossessed
- Digital bourgeoisie: privacy protected at subscription price
This is Foucault’s disciplinary power made economic:
Protection is not a right, it is a product tier.
IV. The Kill-Shot Sentence
Microsoft’s ability to guarantee that enterprise data will not be used to train Copilot proves that attribution, license preservation, and data segregation were never technical impossibilities, but simply never applied to the open-source commons. The difference between the enterprise carve-out and the commons is not architecture—it is power. What is sold as “responsible AI” to corporate clients is denied to the very public whose labor made the model possible. This is not an accident of scale or a limitation of machine learning; it is a deliberate governance choice that privatizes the value of the commons while socializing the cost of dispossession.
**This is intent.**
And intent triggers DMCA §1202 liability.
This is the hinge.
This is where the case turns.
V. The Iron Cage Reforges the Developer Class
“The iron cage is bureaucratic rationality that justifies all means by efficiency.”
- Max Weber
Microsoft converts:
**From → To**
• Cultural capital (craft) → Economic capital (AI rents)
• Peer gift economy → Surveillance-value extraction
• Developer identity → Prompt-feeding maintenance role
This is not productivity enhancement.
This is class restructuring.
VI. The Moment of Enclosure
BEFORE TRAINING AFTER TRAINING
(Commons: Shared, Licensed) (Model: Private, Closed, Proprietary)
[ Code + Attribution + License ] → [ Weights + No Attribution + No License ]
VII. Call to the Commons
The gavel has not fallen.
The enclosure is not yet final.
Act:
Demand provenance surfaces in tooling
Support commons-based licensing & defense funds
Build sovereign models and public training sets
Refuse to accept the Iron Cage as inevitable
The music is not over.
The commons can sing again.
Licensing and Use
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The ideas generated here are for the defense of the valor da inutilidade and the sovereignty of the human mind.
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