The Pirate's Prophet: On Lewis Hyde
The copyright legislation of the new nation, when it emerged, resembled the Statute of Anne but bore the signature of self-erasure in what Hyde calls "the Republican Two-Step": "first a private compensation, then a public benefit." A limited term of protection—fourteen years—was offered only as an inducement; the real purpose, Hyde writes, was to ensure the later public life of a given work. The founders considered eliminating copyright protections entirely, and seem also to have briefly contemplated abolishing all rights to property inheritance, one of many reminders that those searching for insight into the American character often err by looking to the agrarian revolutionaries of the aristocratic eighteenth century rather than the industrialists and imperialists of the century that followed.
Hyde praises this "properly limited exclusive right" as "a cultural innovation of the first order." But he might better have said "first class." When Adams wrote his protest against the Stamp Act, he was acting as a political agitator, not a professional author. He was a man who could afford to. In revolutionary America, the value of this kind of civic virtue was real, but it was a philanthropic value, cherished by elites, and the performance of self-erasure was an indulgence of the famous few. As even Hyde acknowledges, when an unknown slave began to publish his own newspaper a generation later, he could not afford to play the game of anonymous civic republicanism; he called it Frederick Douglass' Paper.
Yet concerns about class do figure, one presumes, in Hyde's admiration for Benjamin Franklin, the by-the-bootstraps hero of the Transcendentalists, beloved for his capaciousness, his intellectual virtuosity, his public modesty and what Herman Melville once described as his "philosophical levity." "Where is the master who could have instructed Franklin?" Emerson asked rhetorically in "Self-Reliance," proposing Franklin as a model of American genius—self-taught, self-made, sui generis.
But Hyde spends the better part of two chapters interrogating Emerson's conceit and lovingly enumerating Franklin's many instructors (in his experiments with electricity, particularly), including Francis Bacon, William Harvey and Isaac Newton. But more important than Franklin's intellectual debt, Hyde proposes, is the inventor's willingness to pay it forward. "That as we enjoy great Advantages from the Inventions of Others, we should be glad of an Opportunity to serve others by any Invention of ours, and this we should do freely and generously," Franklin wrote in declining an offer to patent the design of his wood stove. When he introduced his lightning rod he was similarly modest, including in announcements about the device neither proprietary claims nor overt self-promotion. Franklin made his fortune as a pioneering printer—"the trade that betrayed all the other trades," Hyde writes, "that prided itself in exposing secret knowledge"—a field he entered by breaking an apprenticeship and establishing his own shop with stolen know-how and stolen content. Hyde calls this escape a "foundational act of American piracy."
But in what way can Franklin instruct us now? His bravura modesty is neither here nor there, and though his amateur approach to experimental science is appealing, it is for our purposes mostly unhelpful. Science needs no kite fliers today, no stove tinkerers or garage bifocalists; science needs money, energy and talent, each of them aggregated at a far bigger scale than any amateur could possibly manage. One cannot build a Large Hadron Collider in one's backyard; one would have a hard time building even a small hadron collider there.
And what of Franklin the pirate printer, Hyde's patron saint of remix culture? For Hyde, as for Lethem, Shields and others, free appropriation and exchange of content is compelling not only for being communitarian but for being candid. For them, piracy of the kind practiced by Franklin the revolutionary printer is an honest acknowledgment that authorship is always plural and culture inevitably pastiche and plagiarism. But this claim depends on a confusion about what constitutes influence and true authorship—an elementary confusion that makes Hyde's invocation of plural authorship ultimately no more compelling than his case for self-erasure. Franklin may have been standing on the shoulders of giants—a phrase made famous by Newton—but his vision of progress as collaboration over time and across distance was no less a vision peopled by ambitious individuals. To suggest that we are all plagiarists because we are all influenced, that we are all plural authors because we are not radically solitary thinkers, is ultimately to make an argument not against intellectual property but from its narrow, proprietary logic, and in particular its defense of a purist, Romantic view of what constitutes expressive work and creative capital.
The desire to preserve what remains apparently pure about the making of art in contemporary life drives much of the argumentation of Common as Air, which emerges over the course of its several hundred pages as a treatise on the uncertain fate of expressive work in a culture that celebrates creativity as a corporate value, treats "artisanal" as a euphemism for "expensive" and encourages every bird in the corporate troposphere to consider himself an artist. What Hyde offers in suggestive counterpoint is a double meditation on the work of art in an age of digital reproduction and the art of work in an era of consumer narcissism. Just as the printing boom of Restoration England generated a crisis of authorship amid debates over copyright, the consumer boom of the Internet era has produced a crisis of artistic status amid debates over intellectual property. A sense of threat to art's elevated status is central to the strange yearning for free culture among those who should otherwise hope to make their living from their creative work, and to the unfortunate marriage between those writers and artists who claim to revere culture and those consumers, entrepreneurs and Internet absolutists who would like to liquidate it.
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"If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple," George Bernard Shaw explained, outlining the distinction between what economists call rivalrous and nonrivalrous goods. "But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas."
The distinction between material goods and those intangible ones undiminished by use has generated many of the liberal objections to intellectual property voiced over the past several hundred years. (Thomas Jefferson: "He who lights his taper at mine receives light without darkening me.") But it animates Hyde far less than does a distinction between the sacred and the profane. In Common as Air he advances his argument against the ownership of culture by invoking the contrast between dignity and simony, the crime of purchasing sacraments and ecclesiastical privileges. It is an argument that draws on work by contemporary philosophers Michael Sandel and Michael Walzer but owes more to Immanuel Kant. "In the kingdom of ends everything has a price or a dignity," Kant wrote in 1785. "Whatever has a price can be replaced by something else as its equivalent; on the other hand, whatever is above all price, and therefore admits of no equivalent, has a dignity."
Of course, that dignity has its own cost—livelihood. Copyright may have been invented in part to enlarge the public domain, but it was also designed to protect and promote the reputation of authors by ensuring them limited ownership of their work—an arrangement that is, lest we forget, a "cultural innovation of the first order." Copyright opponents present themselves as advocates of culture, but their rhetoric masks their true animus, which is fundamentally antipathy to the market. Free culture advocacy challenges the right to profit from creative work, undermines even market-neutral claims on personal authorship and has helped make piracy what Johns calls, perceptively, "the definitive transgression of the information age." Those same free culture warriors that Jaron Lanier describes, in You Are Not a Gadget, as "digital Maoists" seem poised to create, out of opposition to consumerism, a consumer paradise—and one in which the open-source imperative to piracy trumps the virtue of productive labor. (Hyde calls this imperative a "copy-duty.") "The pirates, in all too many cases, are not alienated proles," Johns reminds us. "Nor do they represent some comfortingly distinct outsider. They are us." When culture is free it is owned by consumers, and producers are reduced to amateurism—a rigorous and inescapable hierarchy of its own. As Lanier has put it, "If we choose to pry culture away from capitalism while the rest of life is still capitalistic, culture will become a slum."
There were writers before copyright, of course, but a large class of professional authors did not develop without its protection; there were musicians, too, but a career meant performance rather than composition. Those great heroes of the creative commons, the Delta bluesmen of the early twentieth century, were unable to support themselves even through relentless touring and what seems to be near-constant songwriting and refining. The same is true of the inventive impresarios of bluegrass, early country and folk. One doubts that they would have turned down the opportunity, had it been offered, for royalty payments and songwriting credits. One wonders, then, why anyone would ask a similar refusal from artists today.
In The Gift, Hyde compares the sale of artworks with the trade in "sacred properties" derived from the body. But today you can sell sperm, and you can sell an egg. You can rent the use of your womb. Proposing that artwork circulate outside the market seems less an effort in defense of dignity or "sacredness" than simple fear of the judgment of a consumer audience.
The copyright regime lacks dignity, too. The pace of cultural production has increased rapidly over the past century, with creative generations shrinking from several decades to just several years, even as the umbrella of copyright extends further and further from the point of genesis. This is perverse, of course, as is the extension of copyright not just for new works but for very old ones, as was accomplished by the Sonny Bono Copyright Term Extension Act of 1998, and, somewhat less so, for authors and artists who have not even petitioned for protection, as was accomplished by the Digital Millennium Copyright Act of the same year. But these are limited disputes, concerning the structure of particular statutes, and they are best argued at the margins, not as part of a broad campaign against the principles of authorship and cultural propriety.
Hyde has praised the American Transcendentalists and their many fellow travelers as "poet-essayists who never stop being poets," and each of his works of nonfiction tours realms not always contiguous by routes not always carefully plotted. Common as Air, like The Gift and Trickster, is a work of "prophetic essay," and, like those earlier books, does not purport to be a work of advocacy. When Hyde does wax pragmatic, he is careful not to denounce copyright writ broadly or to advocate for the abolition of intellectual property entirely. But these gestures are accommodationist rather than principled; we know that art, for him, means trouble, and that culture is too valuable to render unto Caesar. Yet if we hope to support culture we must find ways to support those who make it, and not chase foolishly into the desert after the coyotes and the pillar saints.
When one peels back the Romantic veneer, one finds throughout Hyde's utopian work a sincere concern for the preservation of our cultural patrimony—though one that is not only infatuated with the sacredness of artistic work but also poorly focused on the commercial threats to it. A campaign, instead, for integrity—defined as the ability of those working in the arts to secure their livelihood with that work—would be more dignified, and certainly more practical, than the free culture crusade against intellectual property. And it might not be, ultimately, the line between copyright and public domain, between private inducement and common benefit, that should most concern us but the placement of the one governing fair use—between a pirated Crusoe, that is, and a legitimate Robinsonade. One need not deprive artists of the right to profit from their work to make that work available to others; nor must we obliterate ownership to preserve access. It is in this sense that one hopes Hyde and his crew, with their exhortations to piracy and the plundering of culture, find themselves with Merton and Whyte on the wrong side of history.