In the fall of 1956, a young editor at Fortune magazine published a worrywart prospectus of corporate culture and its corrosive effects on American genius. The man was William Whyte, once a traveling salesman for Vick’s VapoRub and later a mentor to Jane Jacobs, and the book was called The Organization Man.
It was a peculiar little book—a jeremiad in a gray flannel suit—and it made for a peculiar bestseller, but a telling one. In that decade and the one that followed, dozens, if not hundreds, of popular works of speculative sociology were published—The Lonely Crowd, The Power Elite, The Triumph of the Therapeutic—as postwar America found its imperial footing through ever more elaborate feats of self-scrutiny. But The Organization Man distinguished itself through its emphasis on the fate of science, and the plight of the scientist, in an era of company men and corporate ketman that Whyte believed was "not only repelling talent but smothering it." "Management has tried to adjust the scientist to The Organization rather than The Organization to the scientist," he wrote. "It can do this with the mediocre and still have a harmonious group. It cannot do this with the brilliant; only freedom will make them harmonious." "The first-rate man has a prior intellectual commitment," he warned; "in no field, except the arts, does the elevation of administrative values hold more dangers."
This central anxiety of The Organization Man, that scientific inquiry demands insulation against corporatism, was echoed by many leaders of the sociologist caste—Thomas Kuhn, Talcott Parsons, Michael Polanyi and, most pusillanimous, Robert Merton, long credited with initiating the sociological study of science, and now largely known for coining the terms "self-fulfilling prophecy" and "unintended consequence." "The substantive findings of science are a product of social collaboration and are assigned to the community," Merton noted. "They constitute a common heritage in which the equity of the individual producer is severely limited." This was not by accident: "By the rationale of the scientific ethic," Merton wrote, "property rights in science are whittled down to a bare minimum." Communism, "in the nontechnical and extended sense," he said, was an "integral element" of that ethic, and an element that demanded protection: "The communism of the scientific ethos is incompatible with the definition of technology as ‘private property’ in a capitalistic society."
But the experience of cold war scientists, captured in what the historian Steven Shapin calls the "shop-floor" literature of trade journals and testimonials, memoirs and memorandums, suggests that this perceived conflict between corporate values and scientific inquiry might be a "total illegitimacy." "With vanishingly few exceptions—exceptions that may dissolve on further investigation—unhappy industrial scientists," Shapin writes, of the kind forewarned by Whyte, "just do not exist." This phenomenon was in part a credit to the ingenuity of corporations in assimilating and accommodating the values of free inquiry in the supervisory age of industrial psychology. As Shapin points out, the governing aphorism "When you lock the laboratory door, you lock out more than you lock in" comes not from Merton or Whyte but from Charles "Boss" Kettering of General Motors, who also insisted, famously, "You can’t keep books on research."
But it was also a credit to the ingenuity of science. In the half-century since the publication of The Organization Man, the imperious enterprise then called "applied science" and now "technology" has triumphed spectacularly, and the story of the resilience and adaptability of scientific inquiry is among the major narratives of these consumer decades. Despite perennial fears that guided practice will crowd out the pursuit of "pure science," the pace of new research seems only to have quickened: one can argue that the benefits of research have been distributed inequitably, even unethically, but one can no longer argue, with Merton and Whyte, that the scientific enterprise is necessarily incompatible with the major source of its funding. We live in a culture shaped by the insights of science, engraved with its worldview and governed almost totally by respect for its authority, even as "the old notion of the scientist as hero has been replaced," as the linguist and evolutionary psychologist Steven Pinker has put it, "by the idea of scientists as amoral nerds at best." The near-complete eclipse of self-directed science surely disappointed those, like Merton and Whyte, who cherished the vision of the tinkering scientist as Romantic genius, but professionalization has been a tremendous boon not just to those drawing paychecks from laboratory research but for those many more of us drawing dividends. In his landmark 1959 lecture "The Two Cultures," C.P. Snow may have lamented the relative stature of science in a postwar establishment enamored with the humanities—but, as Shapin has written, "he was presiding not at a funeral but at a christening."
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Today it is that other culture, the arts, that feels itself imperiled. Not just by the ascendant sciences—though that challenge can be seen in the resort to evolutionary psychology and neuroscience among novelists, literary critics and philosophers—but also by the corporation, and in particular the corporate ownership of culture, enforced by a copyright regime that has grown steadily since its eighteenth-century inception from fourteen years, to twenty-eight, to fifty and presently to seventy years after death for individuals and ninety-five for corporations. The public storehouse of natural science and vernacular culture that lies beyond the threshold of those protections has shown itself vulnerable, too, to private capture, as companies and entrepreneurs claim more and more material in the name of what has come to be known as intellectual property—"an idea not just new but historically strange," Lewis Hyde writes in his new, bracing Common as Air, an exhortative history of cultural propriety. "It belongs to our times, to be sure, but if we are to examine it with any care it helps to know how new it really is; it’s newer than automobiles, newer than lightbulbs, newer than jazz."
In recent years there has been a challenge mounted by a small army of revanchist writers to the dispiriting portrait of the artist as organization man—a contrasting portrait of the artist as confidence man, pirate, plagiarist and thief. The artist in this portrait is a troublemaker, and the volume of trouble is thought to be a decent proxy for the value of artwork. It is a vision of creative labor as a form of permanent revolution.
Hyde is ringleader and chief theorist to these free culture warriors—a poet and critic, moralist and communitarian. Common as Air is only his third work of nonfiction, and he has been laboring over it for more than a decade. He describes himself as a "scholar without institution," but he has appointments at Harvard and Kenyon, and another at a Cambridge architecture firm where he works, rent-free, as a "poet in residence." He has not published a book of poems since 1988. It is his only book of poems.
Hyde’s reputation and near-shamanic aura have arisen, instead, almost entirely from his first book, The Gift, a beguiling work of associative anthropology published in 1983. In it, Hyde depicts a glorious "economy of the creative spirit," a "shadow economy" in which artworks are bestowed as gifts rather than traded as commodities. For Hyde it is an economy irreconcilable with our conventional systems of property, value and exchange. The Gift is often said to be difficult, if not impossible, to summarize, but it is in fact quite easy to describe. The book is a sentimental curio, an artifact of our congenital cult of the artist and a survey and prehistory of what might be called the null-commodity fetish—the preference, particularly acute among the creative classes, for work antagonistic to establishment values, for careers insulated against the unseemly forces of acquisitive exchange, for market spandrels rather than market darlings. Throughout, Hyde works with distinctions, between noble pursuits and corrupt ones, familiar to readers of Whyte and Merton but borrowed from religious discourse: in place of divinity he substitutes creativity; in place of the sacred, the expressive; in place of the oracle or priest, the artist and writer.
The Gift is an elegantly Romantic book, and writers have been predictably flattered by it, praising Hyde to kindred spirits and passing the book among themselves as a kind of talisman. Margaret Atwood has said that she maintains a collection of a half-dozen copies, so that she might always have one at hand when counseling a young artist or writer. ("It gets at the core of their dilemma: how to maintain yourself alive in the world of money, when the essential part of what you do cannot be bought or sold.") Geoff Dyer, Zadie Smith and David Foster Wallace have all praised The Gift as a major touchstone, not merely an incisive study but, as Smith has suggested, a road map to the writing life with a special key to what makes it uniquely valuable: "A manifesto of sorts for anyone who makes art, cares for it and understands that our most precious possessions are not for sale and the greatest contracts are achieved without anyone signing on the dotted line."
The Gift has also captivated a set of theorists and writers—Henry Jenkins, Lawrence Lessig, Richard Stallman, Siva Vaidhyanathan and Jonathan Zittrain, to name a handful—devoted to the proposition that intellectual property is a paradox and the American copyright regime a corporate handout. The cultural patrimony of past generations is best honored, they believe, through open appropriation, condoned by what is often called the principle of "the commons"—the idea that our relationship to culture should be made to mirror the relationship of peasants to land in late medieval and early modern England. That is, our cultural patrimony should be owned collectively, used in common and governed by a regime of informal customs oriented not toward profit but against it.
More than two decades after its publication, The Gift continues to rally those who have imported this hacker ethos into the realm of cultural production, who declare that if we believe in culture then we must ensure that it is "free." (The word "free" has many meanings. That the free culture movement comprises a strange and contradictory alliance of people with various political and cultural identities—libertarians and anarchists, Silicon Valley entrepreneurs and East Coast artists—is in part a testament to its elasticity.) Jonathan Lethem, who has called The Gift an "epiphany, in sculpted prose," outed himself as a plagiarist of Hyde in a carefully calibrated essay on copyright and intellectual property for Harper’s Magazine in which he, describing all good artwork as plagiaristic, called for balder appropriation. In Reality Hunger, a commonplace book of aphorisms and appropriations, essayist David Shields, too, declares war on intellectual property. "Reality cannot be copyrighted," Shields avows. "Reality-based art hijacks its material and doesn’t apologize."
The portrait of the artist as bandit is at the center of Hyde’s second treatise, Trickster Makes This World, published in 1998. Trickster is a meandering foray into the study of myth, and of that truth-teller troublemaker living just beyond society who goes by the names of Hermes, Mercury and Coyote, among others. The book is less esteemed than The Gift (although it is Michael Chabon’s favorite of Hyde’s works) and is more rarely discussed than Common as Air is sure to be. But it may be Hyde’s most exemplary work, a richly detailed but loosely conceived anthropological picaresque—anthropology in the nineteenth-century sense of collecting artifacts as a demonstration of sophistication rather than assembling them into a reliable and coherent narrative.
Hyde’s new book brings his previous two into binocular focus and should gratify his devotees as well as those free culture advocates who believe that the work of artists and writers demands resistance to the market. In it, Hyde extends the proposition that collective ownership of culture should be not just a political ideal or a legal goal but a noble and actionable form of nonviolent resistance. Common as Air is a deeply felt tribute to piracy—and in particular to those American pirates known to most of us more prosaically as the founding fathers.
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.
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.