By David Skinner
Lewis Hyde answers our Impertinent Questions about property, the language thereof, and what the Founders thought about copyrights and patents. Hyde is a professor of creative writing at Kenyon College and a faculty associate at Harvard’s Berkman Center for Internet and Society. He is also the author of Common As Air: Revolution, Art, and Ownership (Farrar, Straus and Giroux), which he wrote with an NEH research fellowship.
True or false: Information wants to be free.
False. This statement often appears in arguments against the ownership of ideas. I don't oppose such ownership: Copyright is a very useful tool. But the public domain is useful too, and the problem is how to balance the two.
You are a literature professor and yet this is your second book on property. What was the first about?
The Gift, published in 1983, is a meditation on the noncommercial side of artistic practice. The argument is that works of art exist in at least two economies: a market economy and a gift economy, and the gift economy is essential.
How could an anthology of modern Irish literature fail to include James Joyce?
In 2000, a British scholar published a 1,300-page anthology of modern Irish writing, 24 pages of which were devoted to Joyce. The Joyce estate insisted on a fee of £7,000. When the editor said he couldn't afford that, the estate raised the price and then refused permission outright. This anthology still lists Joyce in the table of contents but those pages are cut from the volume. All legal, but a pity.
I find it difficult to summarize your book. What is the elevator-pitch version?
The book is a defense of our cultural commons, that vast story of art and ideas we have inherited from the past and continue to enrich in the present. Suspicious of the idea that all creative work is "intellectual property," I turn to America's Founders—Franklin, Adams, Madison, and Jefferson. What I describe is a rich tradition in which knowledge was assumed to be a commonwealth, not a private preserve. (That's a long elevator ride, I know!)
You have much to say about the language of property. What, again, is a feud?
In the Middle Ages, an estate granted by a lord to a vassal was called either a "feud" or a "fee." The latter term really interests me. Early on America was described as a "fee simple empire." A fee was an estate held on condition of the vassal's loyalty and service. A "fee simple" was an estate with no such obligations.
And what is a commons?
"The commons" referred to land (or streams or forests, etc.) that belonged to the local villagers, each of whom had "common rights" of various kinds. Today a commons is a social regime for managing a collectively owned resource. To my mind, what we call "the public domain" is such a commons, though not a well-managed one.
Frequently, when people talk of commons today, they refer to Garrett Hardin’s 1968 essay “The Tragedy of the Commons,” which you take issue with. What’s your beef?
Hardin missed the fact that traditional commons were managed by custom; they were stinted, which is to say every community enforced clear limits to use. Once a year, commoners would "beat the bounds," walking the common lands armed with axes, mattocks, and crowbars to demolish any hedge, fence, ditch, stile, gate, or building that had been erected without permission. We should devise ways to beat the bounds of the cultural commons!
And what is a monopoly?
Exclusive control of the supply or trade of a commodity. The Founders viewed copyright not as a property right but as a monopoly. They thought short-term monopolies were useful as "incitements to ingenuity," but that monopoly power had traditionally been a tool of despotism. That's why the Constitution says copyright and patent should be "limited."
What was the primary purpose of copyright as the Founders thought of it?
The first U.S. copyright law in 1790 was called "an Act for the encouragement of learning," a phrase borrowed from the 1710 Statute of Anne in England. Education and the "progress of science" (meaning knowledge) were the ends toward which copyright was directed.
Why do you call Ben Franklin a pirate?
He was apprenticed to his brother, a printer, until they quarreled and Franklin ran away to Philadelphia. Under the guild system, apprentices were not allowed to take the skills they were learning and leave. After the Revolution, when Franklin was in Paris, he was regularly approached by artisans who wanted to emigrate to the United States, taking trade secrets with them. Franklin always supported them and their "illegal" acts.
Your book has many terrific quotes and literary examples and shocking news stories. What is your method for collecting material?
Go to parties with interesting people and get them to tell you stories. And, of course, read a lot. But parties are more fun.
Who invented the intermittent windshield wiper, and why do you care?
In 1962, one Robert Kearns came up with the idea for an intermittent windshield wiper and demonstrated the device to the Ford Motor Company. In 1969, Ford began to offer the intermittent windshield wiper under its own patents. Kearns sued and won about 90¢ for each vehicle with intermittent wipers.
I tell this story to describe how the public domain surrounds us. What would a car cost if every idea for every part were covered by a perpetual patent? The Kearns story helps me imagine an answer.
How does Bob Dylan fit into your story?
He's an artist whose genius is not that of a self-made man but of a great host, someone whose intelligence is capacious enough to entertain the vastness of an inherited cultural commons.
Footnote or endnote?
If the note is an aside to an ongoing argument, it should be in the footer. If the note is there simply to help curious readers find an author's sources, it should be at the end. Incidentally, my endnotes are listed by page number, but there are no page numbers in e-books. Surely a 90¢ invention could take care of this.