Lewis Hyde is giving a Berkman talk on his new book, Common as Air (Aug 17). He says a commons is a social regime for managing some collectively held resource. The idea comes from the idea of shared property. They worked because they were stinted: ruled for limited use, e.g., you can take wood from trees but only up to a certain height, you could pasture only a limited number of cattle and only if you’re a land owner. So, if you were thinking about cultural commons today, how would you stint them? And, there were limits on people’s ability to take land out of the commons. commoners had the right to take down encroachments, which they would do in the yearly “beating the bounds”; it was a social affair. As early as 1217, there were laws granting the right to tear down encroachments.
NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.
He says the book is about how our founding fathers thought about the commons and whether their way of thinking could be usefully applied now. They wanted to create a commons of knowledge. They looked on patent and copyright generally unfavorably. Lewis got to thinking about this when Congress extended copyright yet again, a form of “parliamentary enclosure.”
He distinguishes the public domain from the cultural commons. The latter would be durable because it’s governed by rules. What would it take? He’ll talk about three ways…
He starts with a distinction Michael Sandel makes between choices and duties. Sandel says in the US we start with a myth of the freely choosing self. But we’re encumbered — bodies, families, cultures. Conscience encumbers us, Sandel says. The aim, says Lewis, is to preserve things larger than ourselves, that encumber us, but that also give us more ability. Lewis thinks about this as “the encumbered and comic self.” So, how do individuals respond to the duties of the commons.
Lewis cites a Pete Seegar story about the origins of “We Shall Overcome.” A number of known songs had elements of the lyrics. It moves from voice to voice, occasionally changing rhythms and lyrics. Around 1960, it becomes The Movement’s song. Friends urged Seegar to copyright it to keep others from copyrighting it for commercial purposes. So, Seegar and four friends copyrighted it, but they signed a “songwriter’s contract,” putting all the money into fund. It’s a good example, Lewis says, of someone recognizing obligations to something bigger than himself, trying to keep it in the community. This is like the GPL.
So, if an individual wants to protect a commons, then what’s needed? A norm that then gets turn into a legal protocol that claims and releases. (This is the “copyleft” alternative, a term Lewis hates, because the correlate of a right is a duty, so we ought to call it “copyduty.”)
He refers to Michael Walzer’s Spheres of Justice which says that justice varies within the different social spheres we’re in. Tyranny is what happens when one sphere dominates another. E.g., when the entertainment industry dominates Congress’ view of copyright, which further gets exported to colleges that are asked to turn in their students for violating copyright. MIT, to take one example, “beat the bounds” by refusing to do the entertainment industry’s bidding.
The third piece looks at the spaces between the spheres of social life. How can we have conversations across those spheres. He’s thinking of common carriers as interstitial fora that allow for conversation. How can we make the these durable? Ben Franklin built a public platform where anyone could speak. It was about freedom of listening, because you as a member of the audience in such a hall got to hear conflicting voices. What interests Lewis about these sort of “carrier commons” is the idea of divided sovereignty. When the Founders were designing the country, sovereignty was always unified. But, fearful of power, the Founders decided to divide it. (The balance of power idea came via Adams who had read about balanced forces in Newton.) In the book, Lewis shows that as the Founders think about the circulation of knowledge, their history taught them that copyright and patent were forms of monopoly privilege that resulted from an abuse of royal power. The Founders did not believe that you had a natural right to what you’ve created; these are state-given privileges and monopolies. They felt the monopoly was a form of unwarranted sovereignty. Stephen Breyer has said that the word “limited” is in the Constitution applied to “monopolies” as a reference to the idea of limits on unified sovereignty. Copyright should not be used to suppress voice and ideas.
He gives two examples. One is Harry Lewis’ Blown to Bits that wanted to reproduce Larry Summers infamous memo, but it would have cost hundreds of thousands of dollars to litigate the copyright claim. [THE NEXT DAY: In the comments below, Harry elaborates and corrects this example. Thanks, Harry!]
So, suppose you have a public domain that is poorly guarded and you want to create a well-regulated, sustainable cultural commons. You could do “claim and release” like Pete Seegar. Set up a cultural commons. But what do you do if you want to mash up things with different licenses? Right now, the most restrictive license will trump. But norms can stint the commons. E.g., the Bermuda Principles for sharing human genome info: labs release decodings quickly, which turns out to enable very useful annotations (“this gene is correlated with lactose intolerance”) that are updated globally every morning. This is done through norms, not laws.
Q: The Founders increased ownership rights, e.g., corporations…
A: They couldn’t foresee what would happen in the 1880s. Property rights are rights of action and rights of exclusion. If you only focus on exclusion, you lose the communitarian action side. The Founders viewed property as simple right to exclude, but they also thought there were properties held in commonality.
Q: Franklin refused to patent inventions. He was clear that he was enabled by those who came before him.
A: Yes. I have two chapters on him. The Founders operated under a civic republican ethic. Once you have ownership, you should serve the public. Once he got rich enough, that’s what he did.
[me] Is there a duty to preserve the commons, or is it just a norm? What might the duty be grounded in?
Q: The Commons was founded on a need. Where are the needs defined in other areas?
A: A commons has to nominate the ends to which it’s dedicated. The agricultural commons was designed to provide enough food. Some commons and rights in commons were designed to support the poor. In the book, I ask why the Founders wanted free circulation of knowledge. First, for self-governanceCitizens need to be informed. (see Adams) Second, for scientific knowledge. (See Franklin.) Third, social selves or public beings: Goethe said that his work has come from many many sources. “My work belongs to a collective being whose name is Goethe.” Franklin’s genius was of a host: someone who could absorb from a community of knowledge. The duty to the commons comes from a sense of collective being. “Individual” is a relatively new word; people viewed themselves as members of families and communities. “Dividuality” is an older word. Even norms don’t work unless they make sense to how you see yourself as a human being.
Q: When did copyright switch in case law from a limited right to a sense of ownership?
A: Middle of the 19th century, when Fair Use appeared because copyright was becoming a commercial, abstract right. Originally, derivative works weren’t covered; you could abridge and translate without violating copyright. Then a judge decided that because it might cost the author some sales, it was covered.
Q: Is there a political solution?
A: That there’s been legal pushback is hopeful. So is the academic open access process.
Q: Can you build a cultural commons for small communities, e.g., 140 people living in a small, isolated area of Mississippi.
A: I write books. But you also need organizers. So, we’re back into American politics.