The Pirate's Prophet: On Lewis Hyde
Most of what we know as pirate myth—peg legs, buried treasure, the Jolly Roger—appeared first as purported fact in A General History of the Robberies and Murders of the most notorious Pirates, an elaborate biographical dictionary published in 1724 by Daniel Defoe. Or at least many people think it was written by Defoe. It's hard to tell because Defoe published almost exclusively under pseudonyms—at least 198, according to a recent study—giving him a shaky claim to the authorship of more than 500 books. "Defoe," too, was a pseudonym: he was born Daniel Foe and adopted the aristocratic affectation upon his release from debtors' prison in his mid-30s, whereupon he hoped to make a legitimate go of it as a hosiery salesman. He had already participated in one plot to overthrow a king; he would soon storm Parliament in support of a new one. Later, he would be arrested and pilloried for publishing a satire urging the extermination of religious dissenters, of which, as a Puritan, he was one. (His cheeky "Hymn of the Pillory" inspired onlookers to shower him with flowers rather than the usual rocks.) He was a spy for Queen Anne and a merciless pamphleteer who also produced kitchen-sink volumes stuffed with materials quoted, appropriated and ventriloquized. He invented much of what he published as journalism—at one time he ran eight newspapers, writing most of the copy for each himself—and the books for which he is celebrated today as a father of the English novel were published, and advertised, as fact.
Defoe was also the foremost advocate of intellectual property of his day, the era in which that concept was first coming into use. (Hyde's contention that intellectual property is a recent invention is a legalistic and semantic one; copyright law, which endows authors with the exclusive right to reproduce their own work, is a product of Restoration England.) In his 1704 "Essay on the Regulation of the Press" Defoe created the first taxonomy of intellectual piracy, including among the enumerated sins abridgment and "pirating Books in smaller Print, and meaner Paper." "This is down-right robbing on the High-way, or cutting a Purse," he wrote, and though he believed the unauthorized publishing of work by another man was "every jot as unjust as lying with their Wives," the greater threat posed by piracy, he believed, was to the public:
This is really a most injurious piece of Violence, and a Grievance to all Mankind; for it not only robs their Neighbour of their just Right, but it robs Men of the due Reward of Industry, the Prize of Learning, and the Benefit of their Studies; in the next Place, it robs the Reader, by printing Copies of other Men uncorrect and imperfect, making surreptitious and spurious Collections, and innumerable Errors, by which the Design of the Author is often inverted, conceal'd, or destroy'd, and the Information the World would reap by a curious and well studied Discourse, is dwindled into Confusion and Nonsense.
That the most profligate author in Restoration England was also its most strident copyright advocate is no coincidence. Robinson Crusoe was not just the bestselling book of its time but also the most pirated, inspiring an entire genre of derivative works that came to be known as Robinsonades. (The Swiss Family Robinson is the most enduring example.) And as Adrian Johns has argued in his judicious history Piracy, the laws governing intellectual property have always lagged behind "piratical practices": each major protection has been introduced as a countermeasure, not out of authorial principle but professional self-defense, at least according to the relevant guilds.
Nor should it come as a surprise that the same era produced both the graphomaniac Defoe and the insatiable pirates who appropriated his work. The intellectual property wars that engulfed them were staged at the height of the Restoration printing boom, and were born of the crisis of authority produced when a newly literate public found itself tasked, for the first time, with matters of public interest. It was only when authorship became a source of broad social authority that violations of its principles could earn sustained public scrutiny, and only when artisanal guilds arose to challenge the medieval system of royal patronage that authors began to advocate for themselves. Defoe's "Essay" was written in support of the Statute of Anne, the bill that, in 1710, became the world's first copyright law.
The Statute of Anne reflected more than the frustrations of authors. It was also, crucially, the product of guild advocacy, an effort by gentleman printers to impose some order on the anarchic print culture of the late seventeenth century. The popular press of the era, Johns writes, was "viciously partisan, violently sectarian, ruthlessly plagiaristic, and often wildly credulous." At first, as Thomas Hobbes wrote of the civil wars that tore the century apart, "there was no blood shed; they shot at one another nothing but paper." Order was imposed, Johns shows, by extending the protection offered by royal patent, bestowed in previous eras as a courtly favor, to all authors who made a new contribution to public knowledge. Now, by simple virtue of their labor, they would enjoy a "copy right." As Johns explains, the precedent of literary copyright predates that of mechanical patent, of which it was a necessary precursor, by some three-quarters of a century; as late as 1774, those who opposed the principle of intellectual property argued not that the work of the mind was exceptional but that it was no different from mechanical invention, as undeserving of legal protection and royal encouragement as the labors of artisans.
But in examining the meaning of copyright, Hyde looks first not at its origin in Restoration London, which he explores briefly only later, but at a mythic prehistory of cultural ownership illustrated by the English commons before enclosure. (Enclosure was the successful effort, completed in the eighteenth century, to re-establish proprietary order over the pastoral and arable lands of the English countryside that had developed over the previous several centuries a tradition of open access.) The commons were owned only nominally by local aristocrats; managed and harvested collectively by the local peasants; and protected by a ritualistic regime of rights, rents and obligations that ensured the continued husbandry of the soil and the survival of those who lived off it. "The commons bespeaks an aboriginal first condition, one that existed before labor, before cultivation, before the cash economy, and before the constitutional state with all its apparatus for the protection of property," Hyde writes reverently. "Rights in common assured a baseline of provision," and "everyone, the poor especially, had the right to glean after the harvest." Today, he writes, cheerfully surveying the many contemporary incitements to free culture, "invocations of the commons can carry with them a promise that more than air can be like air, always there for the inhaling lung."
This homily peddles an attractive but confected fantasy, animated by what the historian Jackson Lears has called Hyde's "prelapsarian vision," one that is "common to some Marxists, most romantics, and all Christian nationalists: Once upon a time, people lived in harmony with their world and one another; then they fell from grace—prodded by capitalism, scientific rationality, or original sin."
English agrarian culture before enclosure was no Eden. It was "otiose, intellectually vacant, devoid of quickening, and plain bloody poor," according to the British historian E.P. Thompson, who called "the golden age of the village community before enclosure" a "social myth." For Thompson it was a convenient utopian vision cherished by subsequent urbanized and industrialized generations and invented by enclosure in much the way the Norman invasion produced a paradisiacal pre-Norman England.
Hyde calls the tangled system of common rights before enclosure "the social security of the premodern world," but he might better have described it as a form of Plantagenet project housing—proscriptive, perpetual and designed to enforce what Defoe called "the great law of subordination." The brutality of enclosure—about which we know unfortunately more from imagination than documentation—should not distract us from the fact that the commons, too, were a class conspiracy. The commons kept peasants peasants and kept them poor, yielding subsistence but nothing more, and even that little was subject to aristocratic whims. No matter how comfortable the commoners became in their use of the land, their access to it was always controlled by local lords. If the commons were, as Hyde acknowledges, "a theater within which the life of the community is enacted and made evident," then that theater "was a place where an aristocratic society staged and displayed its rigorous and inescapable hierarchies."
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But the premodern country estate is merely a metaphor for Hyde. His real history lesson covers the revolutionary generation of the American founders and particularly the debates over intellectual property that helped shape what he calls our "civic republicanism" and its aesthetic corollary, a rhetorical tradition of "self-erasure."
In Hyde's telling, the founders were as suspicious of intellectual property as they were of political authority; they believed that any interference in the exchange of ideas restricted the freedom of the press and served to protect not the author but the throne, which dictated the distribution of copyrights. (Such privileges they called, pointedly, "monopolies.") In his first published political essay, John Adams opposed the Stamp Act not so much as a tax imposition but as a gilded form of censorship. It was a reasonable objection; the equivalent tax in Britain brought the price of a newspaper close to a typical day's wage, making it impossible to publish newspapers for common readers and restricting the flow of information through the press to the well-to-do.
But Hyde is less interested in Adams's Stamp Act grievances than the manner in which he voiced them—anonymously, in an unsigned contribution to an untaxed provincial newspaper. "The man behind this work is not claiming his ideas as his property," Hyde writes, but offering them "for public deliberation." The exchange of private acclaim for public influence is archetypal for Hyde, who believes this form of self-erasing speech was instrumental in the development of the American understanding of civic virtue—that is, selflessness performed under spotlights—and is, therefore, the political mode that conjured our public sphere into being.