The Pirate's Prophet | The Nation

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It was dismaying to find Lewis Hyde lumped in with copyleft extremists in this review. It is common to see media industry flaks confusing advocacy of limited copyright with opposition to all copyright, but we expect more from The Nation.

Hyde's book makes a solid historically grounded case for treating copyright as an elective policy, not a feature of human nature. His discussion of the founders' debates about what rights in literary property the government should grant makes a refreshing change from contemporary "copyright wars" rhetoric imbued by a strain of cheap moralism in which Wallace-Wells participates. Hyde points out that the founders sought pragmatic policies that could encourage the making and circulation of culture, always bearing in mind the social costs of monopoly.  (Wallace-Wells apparently misunderstands this term as a pejorative reference, but in fact it functions as a common neutral descriptor of IP rights, as in "limited monopoly.")  Wallace-Wells appears commendably interested in keeping culture lively, underneath all that hectic flourishing of his liberal-arts education.  But while noting Hyde doesn't "denounce copyright writ broadly or to advocate for the abolition of intellectual property entirely," he charges that "these gestures are accommodationist rather than principled" and urges readers explore fair use within copyright as an alternative to "rejectionism."  So it seems important to note that Lewis Hyde has done just that, as an active contributor to three projects to create codes of best practices in fair use at the project we run at American University for online video creators, media literacy teachers and for poets (the last one forthcoming).

But fair use is only one of the structural features of copyright that constrain monopoly, including term limitation, the distinction between idea and expression, and users' rights to resell their purchases. If the framers' vision is to be realized, these must be reinvigorated, while recent disfiguring additions to the law, such as proliferating statutory damages, are reconsidered. Far from being a disguised call to abolish copyright, Common as Air is an ideological blueprint for returning this important body of law to its proper place in the scheme of things.