1
DEFENDING THE CULTURAL COMMONS
The argument: Even as market triumphalists work to extend the range of private property, a movement has arisen to protect the many things best held in common.
Most people act as if they had a private understanding, but in fact the Logos is common to all.—HERACLITUS
"THEFT IS THEFT"
Some years ago in Thailand, when drug companies priced AIDS medications at an annual cost exceeding the average Thai income, the government stepped in and set more affordable rates. In response, the pharmaceutical industry called the move illegal and ill conceived, claiming it undermined the incentive to conduct the very research that produces AIDS drugs in the first place.
During the 2008 presidential campaign, Fox News insisted that you tube remove from its site a John McCain commercial that used unauthorized video from a Fox-moderated debate. When the McCain campaign complained about suppression of political speech, you tube replied that copyright law gave them no choice, though they "look[ed] forward to working with Senator (or President) McCain" to improve the law.
In 2000, a British scholar published a 1, 300-page anthology of modern Irish writing, twenty-four pages of which were devoted to James Joyce. Asked for permission, the Joyce estate insisted on a fee of £7,000. When the editor wrote saying he couldn't afford such a steep fee, the estate raised the price to £7,500, then changed its mind and refused permission outright. Ten years later, this anthology still lists Joyce's work in the table of contents, but pages 323 through 346 are cut from the volume.
Each of these stories revolves around what we now call "intellectual property," and as modern as these cases are, the question behind them is very old: in what sense can someone own, and therefore control other people's access to, a work of fiction or a public speech or the ideas behind a drug? The literary part of this puzzle has, by itself, a long history. Three hundred years ago in England, writers and publishers engaged in a spirited, fifty-year debate over whether or not there could even exist such a thing as "literary property."
Publishers in Scotland, for example, thought it made no sense for their competitors in London to claim exclusive ownership of, say, a book on oratory by Cicero or a popular poem like James Thomson's The Seasons. As one aggrieved Scot tried to explain, if a writer were to "keep his Lucubrations to himself," then perhaps "he may be said to have a Property in his Noddle." But once "he prints . . . these Lucubrations," and once someone else pays for the book and reads it, "the Person who buys has just the same Property that the Author had."
"To lucubrate": surely this is a key forgotten verb of the European Enlightenment, the root ("lux") being light itself and the action indicated being the labor of studying long into the night by the flame of a lamp. Lucubrations are the mental harvest of midnight oil, and the only way to make them "property" in the usual sense ("this is mine; you keep out") would be to keep them locked inside the skull, or so this Scottish publisher believed against the protestations of his London rivals.
Centuries have passed since arguments of this sort first appeared, but the years have neither laid them to rest nor brought much clarity to the terms of engagement. "Intellectual property" is the phrase now used to denote ownership of art and ideas, but what exactly does it mean? Does it make sense, to begin with, to say that "intellect" is the source of the "properties" in question? A novel like Ulysses, the know-how for making antiviral drugs, Martin Luther King, Jr.'s "Dream" speech, the poems of Rimbaud, Andy Warhol screen prints, Mississippi Delta blues, the source code for electronic voting machines: who could name the range of human powers and historical conditions that attends such creations? All that we make and do is shaped by the communities and traditions that contain us, not to mention by money, power, politics, and luck. And even should the artist or scientist think she has extracted herself from the world to stand alone in the studio, a tremendous array of faculties and mind-states may well attend her creativity.
There is intellect, of course, but also imagination, intuition, sagacity, persistence, prudence, fantasy, lust, humor, sympathy, serendipity, will, prayer, grief, courage, visual acuity, ambition, guesswork, mother wit, memory, delight, vitality, venality, kindness, generosity, fortitude, fear, awe, compassion, surrender, sincerity, humility, and the ability to integrate diametrically opposed states of mind into harmonious wholes . . . We would need quite a few new categories to fully map this territory—"dream property," "courage property," "grief property"—and even if we had that list, only half the problem would have been addressed.
For what exactly is "property"? The oil in a lamp, the light it sheds, the midnight scholar's flash of insight: can each of these be "property" and, if so, by what ample definition of the term?
I will have more to say about these questions in the chapter that follows; here I'll simply acknowledge that my own position is not as extreme as that of the Scottish publisher. I believe there can be property in all sorts of lucubrations and, in a rightly limited form, usefully so. The very first copyright law (Britain's 1710 Statute of Anne) gave "the Authors and Proprietors" of books exclusive rights to their works for as long as twenty-eight years, provided that they paid a sixpenny fee and listed their works "in the Register-Book of the Company of Stationers." For most of the twentieth century, the law in the United States was much the same: rights lasted twenty-eight years (and could be renewed once, if the owner cared) provided that works were duly registered with the copyright office. Both of these seem to me to offer sensible ways to manage the "intellectual property" found in books.
That said, part of the task of this book is to show the degree to which a phrase like "intellectual property" serves simply to obscure a long history of philosophical, legal, and ethical argument about what sort of property lies under that heading and, once that's decided, what "rightly limited" should mean and why a limit to ownership might arise in the first place. Knowing the history of that debate not just well enough to follow the argument but well enough to engage with it, to take an informed position in the debate, is to my mind one of the prerequisites of cultural citizenship in the twenty-first century.
But here we come to another topic that informs this book, for cultural citizenship is itself now highly contested, sufficiently so that I take it to be the site of a new culture war. For a quick overview of the terms under which that war is being waged, one could do worse than begin with a look at the public relations campaigns that the U.S. entertainment industries have been funding, especially the antipiracy curricula that they have developed and distributed to public schools.
One such campaign, produced by the Motion Picture Association of America (MPAA), has now reached hundreds of thousands of children in classrooms from New York to Los Angeles. In most schools, teachers have been free to use the offered lesson plans or not, as they see fit, though not in California, where a 2006 law mandates that all public schools must develop an "education technology" plan in which, for example, "the implications of illegal peer-to-peer network file sharing" must be taught. (The law never mentions teaching the more interesting and revolutionary implications of legal file sharing.) The year 2006 was also when the industry persuaded the Boy Scouts in Los Angeles to offer a "Respect Copyright" merit badge; the MPAA wrote the curriculum for that, too.
Many of the assignments in these programs depend on role-playing exercises. The merit badge curriculum suggests, for example, that each Boy Scout "write and perform a skit about why copyright protection is important." Elementary school children get to create greeting cards and posters and hold a "publication party," at the culmination of which each child writes his or her name on a sticker that says, "You're part of the © TEAM!" and then affixes this notice to the back of the work. The sticker bears a stock "All rights reserved" copyright declaration.
In an even more elaborate exercise called "Living in a Fishbowl," the teacher gives the students cards assigning each of them to one of six roles, five of which pertain directly to conventional motion picture production: actor, set carpenter, singer, director, and producer. The sixth role is a "computer user." The movie people all have jobs and a clear story to tell: they work hard to make movies; copyright law rewards and protects that work, piracy threatens and destroys it. Online file-swapping, a typical character says, "is costing me big bucks . . . [It] just isn't fair." The computer user, on the other hand—pictured with the top of his head missing and stars shooting out of it—offers an incoherent ramble that mixes rhetorical questions ("How could it possibly be illegal . . . ?") with dismissive remarks ("It's really no big deal!"). He seems to have no job.
The students break into groups to talk about how to present each of these characters to the class; then one by one each student must sit in a circle of chairs—the "fishbowl"—and try to answer in character questions posed by the teacher. A spokesman for the MPAA describes exercises like this as offering a good way for "students to reach their own conclusions about being a good digital citizen." But of course the game itself has determined the conclusion. It is part of a program called "What's the Diff?" intended to teach the young that downloading movies is the same as shoplifting from a store ("no diff"). No student, when asked by the teacher, "What's the difference . . . ?" is really expected to hold forth on, say, the classic economic distinction between corporeal and incorporeal goods.
The offered roles are narrowly selected and well scripted. There are no archivists preserving public domain films, for example, no librarians using ad clips to teach media literacy, no critics satirizing Mickey Mouse, no documentarians of the civil rights movement, no investigative journalists, no young musicians giving their music away to build an audience, no academics sharing scientific data, no remix artists laying sixties harmonies over fifties rhythms . . . Above all, there are no blank cards encouraging students to become the active authors of their own stories. In fact, there are no real "actors" at all in the civic or educational sense, only actors in the movie sense.
Moreover, the lessons meant to inform these roles teach a series of simplifications, even falsehoods, when it comes to the ownership of art and ideas. Teachers are told and children are taught:
If you haven't paid for it, you've stolen it.
Intellectual property is no different than physical property.
As the creator of your work, you should have the right to control what people can and cannot do with your work.
Never copy someone else's creative work without permission from the copyright holder.
Students who have learned to strictly respect the intellectual work of others in order to avoid plagiarism already have a solid foundation for understanding the laws of copyright.
Every one of these assertions is either false or misleading. Take the last one, for example: copyright infringement and plagiarism in fact have almost no connection with each other; infringement is a crime defined by statute, plagiarism is an ethical violation in some—but not all—creative communities. There can be plagiarism without infringement and infringement without plagiarism; to equate the two simply muddies a useful distinction. Moreover, learning to "respect" the work of others, while often a noble goal, has nothing to do with "the laws of copyright," which contain carefully designed provisions meant precisely to protect disrespect wherever it deserves expression.
Or take the claim that "Intellectual property is no different than physical property," this being the ungrammatical first sentence in the Boy Scout merit badge curriculum. In fact, as we shall see, the differences are striking and important, and have been a topic of philosophical and legal analysis for centuries. But these campaigns are not out to lead the young toward the pleasures of subtle thought; they are out to command a particular model of cultural citizenship, and to that end, they need a simple tale to tell.
That tale is often built around one endlessly repeated analogy: copyright infringement is the same as shoplifting. The Recording Industry Association of America produced a public service video, for example, in which the adult moderator quizzes a high school student, asking, "What really is the difference between shoplifting and illegal downloading?," to which the student dutifully replies, "Legally . . . nothing." The answer is left to stand (though it would not stand in a court of law), and is followed quickly by the voice of a music retailer who seals the logical loop: "I don't think there's a difference, because theft is theft."
The final thing to say about these campaigns is that they often present themselves as reflecting a long and well-settled tradition of American thought. The New York Times Magazine once published an interview with the head of the MPAA, Dan Glickman, in which he offered a typical view, saying that "we need to educate kids so they understand the value of intellectual property" and that "the founding fathers, in our Constitution, talked about copyright. They talked about the creative juices that are necessary for a free society and protecting property rights." Here, too, we have a fable for a certain kind of citizenship, not a true attempt to educate, for Glickman's version of U.S. history is an astoundingly narrow reading of what the founders actually thought, as we shall see.
The entertainment industry's campaigns are best understood not as a late flowering of eighteenth-century thought but as a modern, post-1990 response to a striking convergence of at least three historical events. The first and broadest of these has been the rise of a "knowledge economy." Since at least the Second World War, remarkable wealth and thus remarkable power have found their sources in the laboratories and studios of industrialized agriculture, medicine, computing, and entertainment. It therefore matters to companies like Monsanto, Pfizer, Microsoft, and Disney that they control the know-how behind the goods they produce, and as for the goods themselves—especially intangible ones like a digital music file or the description of a soybean gene—it matters that the law help them guard the rights that ownership is supposed to bring, especially the exclusive right to charge fees for access.
A second historical change has, however, made it much more difficult to maintain the fences needed to make exclusivity work. In the 1990s, digital copying and the global Internet appeared almost simultaneously, and all of a sudden many of the useful old fences simply disintegrated. Once upon a time, someone had to physically lift boxes of vinyl recording disks and put them on a truck; someone had to carry tins of celluloid film to every movie theater. Once, the media themselves were slow, sticky, and local, and copying was consequently fairly cumbersome, misbehavior fairly rare, and the tools for controlling access fairly modest. There were always cheaters, of course, but on the whole the commercial and moral economies had no trouble finding common ground, and no one needed to get fourth graders to put copyright stickers on their posters.
Then, in less than a decade, the heavy, slow, and local became light, swift, and global. As with the invention of movable type or the telegraph, the appearance of the digital Internet has amounted to a phase change in the media. The old boundary markers weren't just moved, they were vaporized, and tacit understandings between owners and users got replaced by a kind of amateur anarchism on the consumer side, by ramped-up threats, lawsuits, and lobbying on the producer side, and by very little in between.
And while conventional owners are surely fighting a losing war against the material changes the Internet has brought, they nonetheless still have the kind of money and political clout that has allowed them to punctuate their propaganda campaigns with actual battles joined. The recording industry has fought hard to destroy or regulate one of the more revolutionary features of the Internet—peer-to-peer file-sharing systems—lobbying Congress to force universities to filter their networks, for example, and litigating aggressively.
Agribusiness producers have demanded that farmers who buy genetically altered seed not reproduce and save it from year to year but buy anew each spring (and they have successfully sued a Canadian farmer who, when he discovered that altered canola had accidentally appeared on his land, saved the seed and planted it again). Pharmaceutical producers have developed international trade agreements such that all nations must abide by the rules governing U.S. industrial knowledge or else be sanctioned for "piracy" (and thus managed to get the Indian Parliament to outlaw the making of generic copies of patented drugs, despite the fact that by their manufacture India had been supplying half the drugs for AIDS patients in nations too poor to otherwise afford them).
Beyond all these things, from the rise of a knowledge economy to the disruptions of the digital Internet, one final surprise of history managed to add ideological momentum to all "intellectual property" initiatives. The 1991 fall of the Soviet Union, I believe, served to remove the primary oppositional force that had kept free-market capitalism on its best behavior for half a century. Absent that force, the West entered a period of unabashed market triumphalism, during which many things long assumed to be public or common—from weather forecasting to drinking water, from academic science to the "idea" of a crustless peanut butter and jelly sandwich*—were removed from the public sphere and made subject to the exclusive rights of private ownership.
"COMMON TO ALL"
Here, however, we should come back to the thinly populated space noted earlier between the amateur anarchists of the digital age and the old-guard content owners, for even if Western free-market capitalism was in some sense triumphant, that did not mean that anyone really knew what it should look like nor, once capitalism's exterior oppositional force had fallen, what interior forces might arise to check the unbridled greed it sometimes sets in motion. In what language, native to our own traditions, shall we speak of, say, farmers who wish to save their seed from year to year, or of patent laws designed to give the poor access to medicine, or of the remarkable new models of production that peer-to-peer file-sharing has allowed?
In answering that question, this book joins with others, and with a number of social movements, that have turned to the old idea of "the commons" as a way to approach the collective side of ownership. The next chapter will offer some history and a definition of this term; for now I want simply to note how widely deployed the language of the commons has become.
Excerpted from Common As Air by Lewis Hyde.
Copyright © 2010 by Lewis Hyde.
Published in 2010 by Farrar, Straus and Giroux.
All rights reserved. This work is protected under copyright laws and reproduction is strictly prohibited. Permission to reproduce the material in any manner or medium must be secured from the Publisher.
