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The Founders as Mashup Mavens
Mon, 08/23/2010 - 00:00
For pragmatic activists fighting the good fight against expansive copyright laws, the focus is usually on the here-and-now — how the law prevents us from sharing our works online, how it criminalizes all sorts of everyday activities, how it sanctions monopolies that charge ridiculous prices and stifle competition.
But imagine for a moment if we could learn what the nation's Founders actually thought about the cultural commons as they went about crafting copyright and patent law. Imagine our surprise at learning that Benjamin Franklin was not just an iconic entrepreneur, but in fact America's "founding pirate" deeply committed to collaborative invention and the open sharing of knowledge. Consider the pleasure in discovering that Shakespeare and Shelley, Emerson and Thoreau, and Madison and Jefferson, are all grand figures in a little-known pageant of political culture. Each makes the case, from his writings or his life story, that creativity and culture properly belongs to the commons.
You have just imagined Lewis Hyde's brilliant new book, Common as Air: Revolution, Art and Ownership (Farrar, Straus and Giroux). At a time when the entertainment industry’s argumentation about copyright and patent law is generally stale, disingenuous and alarmist, Hyde's book reveals an arc of political history that has been all but obscured by popular mythologies. Common as Air restores a rich tableau of history, law and cultural tradition that is usually bleached and flattened in the standard legal histories. With a careful reading of 18th Century philosophers, jurists and political figures, Hyde mixes scholarly depth with engaging style to give us a daring interpretation of the history of the cultural commons in American life.
But while Hyde shows remarkable resourcefulness in mining primary source material and recovering obscure historical events, Common as Air is no dry, academic tome or legal treatise. Hyde is a consummate story-teller. The story he tells is lively, witty and compelling. It is so rich and full-bodied that most other accounts are destined to be seen as merely mandarin or polemical.
Hyde starts with a chapter, "Defending the Cultural Commons," which notes that "a movement has arisen to protect the many things held in common." Deftly mixing contemporary news about YouTube and AIDS medications with wisdom from Heracitus and Jefferson ("The field of knowledge is the common property of mankind"), Hyde's purpose is to show how the very idea of "intellectual property" is an aberration in the long sweep of humankind.
Then begins our tour of the commons. Hyde's chapter summarizing the history of the commons, especially during medieval times and English history, is the most succinct and penetrating that I have encountered. He draws upon the classic philosophers and historians to explain how the commons has served as a distinctive mode of self-governance and civic agency. The reader will make the pleasant discovery that even John Locke, the philosopher-saint of the property-rights movement, actually recognized the importance of the commons. According to Locke, a person can take private possession of something from the commons, and exclude others, only “where there is enough, and as good, left in common for others." This proviso, alas, is one of those oracular truths that modern-day conservatives tend to ignore.
Hyde also reviews the work of the classic commons scholars such as Nobel Prize winner Elinor Ostrom (Governing the Commons), radical historian Peter Linebaugh (The Magna Carta Manifesto) and Garrett Hardin ("The Tragedy of the Commons" essay) to explain the folkways of the commons -- the social practices and ethical norms that enable commoners to manage their shared resources equitably and sustainably.
The phenomenon of enclosure rears its head in Chapter 3, raising a new set of policy issues that continue to this day: What shall be converted into private property and what shall remain inalienable, and by what justifications? What are the social and economic harms of enclosure? Turning creative works into property is especially problematic because works of the mind are not finite and depletable as land or water is. As Thomas Jefferson famously put it, "If nature has made any one thing less susceptible than all others of exclusive property it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it."
Perhaps the most provocative chapter in Common as Air is the chapter, "Benjamin Franklin, Founding Pirate," in which Hyde argues that "The founders believed that created works belong largely in the commons so as to support and enliven creative communities." Hyde performs some impressive historical excavations in order to reveal a side of Franklin that is largely unfamiliar.
Even though Franklin is renowned as "the inventor" of the lightning rod, bifocal glasses and many other ingenious devices and methods, Hyde notes that “the idea of owning the innovation, or of preserving it for American use only, never occurred to [Franklin]: he immediately showed his method [a new method of casting printer's type] to the king's printer, and soon after the peace accord with Britain was signed, he shared it with British printers." Hyde also shows how Franklin’s discoveries about electricity and the lightning rod were critically informed by his participation in a wide circle of collaborators. Franklin was, in a sense, the original peer-to-peer networker.
Common as Air delivers many wonderful historical nuggets, many of them culled from the deeper recesses of the Wideman Library at Harvard and Hyde's own capacious scholarship. I was delighted to encounter this stern conclusion by Ephraim Chambers in his 1728 book, Cyclopaedia: "To offer a thing to the Publick, yet pretend a Right reserves therein to one's self, if it be not absurd, yet it is sordid."
While at one level Common as Air is a work of political history and legal scholarship, it is more accurately seen as a meditation on the commerce of the human spirit and creativity. This is the topic that has animated much of Hyde’s writing and that he first addressed in 1983 book, The Gift: Imagination and the Erotic Life of Property. That book, which went on to become a classic, enlarged our awareness of the so-called “gift economy” and its potency in our lives, and informed much of my own thinking on the commons.
Now Hyde has expanded his explorations of creativity and the gift as they play out in the forbiddingly complex realms of copyright law and political culture. Common as Air is a gift to be savored slowly and thoughtfully, and allowed to suffuse one’s larger perspectives on culture, copyrights and the commons. I consider it required reading for anyone seeking to understand the origins and future evolution of the cultural commons.