Enclosure of the commons is a term that refers to the historical process through which common property was appropriated by a few individuals and transformed into the modern form of private property. Marx has referred to the process as primitive accumulation of capital and his historical overview is remarkably precise given the limited sources at his disposal. The process was carried out with varying degrees of violence but always ruthlessly since it gradually robbed the rural population of its means of subsistence. It was also a process that enabled the capitalist mode of production to take root in the first place since it created a sufficient degree of concentration of property in the hands of few and forced many into subservience to capital either as labourers in manufactures and later factories (what Marx has called real subsumption under capital) or as individual producers indirectly subordinated to capitalists (what Marx has called formal subsumption under capital). Even as early capitalism flourished in Britain the living standard of a large part of the working class declined: the wages, even when and where they were relatively high, could not make up for the theft of common land that used to provide people with means of subsistence. Modern apologists of capitalism often forget that capitalism did not take root simply because of its supreme efficiency - although, to be fair, the efficiency of organising labour in manufactures and factories was an important factor in the decline of earlier modes of production - but needed violence and coercion to force people into factories and prevent workers from organising politically.
Once a legal framework for securing private property was firmly established capitalism no longer needed such brutal measures to ensure that products of social labour were privately appropriated, yet that did not motivate the ruling classes to become too faithful followers of the laissez-faire principle. They don't shy away from government intervention whenever it helps them to appropriate surplus profit and that is why the enclosure of the commons has been repeated many times over. Today it is an ongoing process institutionalised in the form of intellectual property rights. Knowledge, which is produced and can be produced only collectively, is being turned into private property, an unlimited resources is being made scarce to enable appropriation of surplus profits. Unlike industrial production, where the appropriation of surplus value by the capitalist needs but a legal guarantee of private property, appropriation of surplus value of cognitive production demands constant state intervention: it must grant patents and trademarks and it must constantly increase the scope of intellectual property (whether broadening it to include for example biological organisms, increasing its duration or forcing it on "developing" countries through the WTO).
The amount of state intervention needed to create and uphold the private character of cognitive production suggests that a central paradox of capitalism (collectively produced value being privately appropriated) is being manifested in its purest form. Asserting that creation of intellectual property rights has gone too far and is therefore hampering development, as for example Henry and Stieglitz or Lawrence Lessig do, misses this fundamental point. We are not dealing with the question of finding the right degree of property "protection" but with a paradox that can not be resolved under capitalism. Far from being the solution to the problems of capitalism, cognitive production is the point where capitalism is most frail. Political struggles for the right to infringe upon copyright (the best know example is perhaps the Swedish pirate party) are about far more than downloading music and movies, they are at the core of anticapitalist struggles today.
