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Common As Air: Revolution, Art, and Ownership [Hardcover]

Lewis Hyde

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Book Description

1 Mar 2012

In 1963, Martin Luther King, Jr. delivered his famous ‘I Have a Dream’ speech. Thirty years later his son registered the words ‘I Have a Dream’ as a trademark and successfully blocked attempts to reproduce these four words. Unlike the Gettysburg Address and other famous speeches, ‘I Have a Dream’ is now private property, even though some the speech is comprised of words written by Thomas Jefferson, a man who very much believed that the corporate land grab of knowledge was at odds with the development of civil society.

Exploring the complex intersection between creativity and commerce, Hyde raises the question of how our shared store of art and knowledge might be made compatible with our desire to copyright everything, and questions whether the fruits of creative labour can – or should – be privately owned, especially in the digital age. ‘In what sense,’ he writes, ‘can someone own, and therefore control other people’s access to, a work of fiction or a public speech or the ideas behind a drug?’

Moving deftly between literary analysis, history and biography (from Benjamin Franklin’s reluctance to patent his inventions to Bob Dylan’s admission that his early method of songwriting was largely comprised of ‘rearranging verses to old blues ballads, adding an original line here or there… slapping a title on it’), Common As Air is a stirring call-to-arms about how we might concretely legislate for a cultural commons that would simultaneously allow for financial reward and protection from monopoly. Rigorous, informative and riveting, this is a book for anyone who is interested in the creative process.

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About the Author

Lewis Hyde is a poet, essayist, translator and cultural critic. He is the author of Common as Air: Revolution, Art, and Ownership. He is a MacArthur Fellow and the Richard. L. Thomas Professor of Creative Writing at Kenyon College, as well as Faculty Associate at Harvard’s Berkman Centre for Internet and Society.

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Most Helpful Customer Reviews on (beta) 3.8 out of 5 stars  6 reviews
3 of 3 people found the following review helpful
5.0 out of 5 stars Engaging & original critique of the cultural commons 25 July 2012
By David A. Bollier - Published on
The great virtue of Common as Air is the originality of Lewis Hyde's engaging historical exploration of the cultural commons. Contrary to the claims of one reviewer here, the commons has not been swept into the dustbin of history by capitalism. It lives a quite vibrant contemporary life in such commons as open source software, Wikipedia and Creative Commons-licensed music, images and books. The point is to understand the social dynamics of such commons (quite apart from the role of markets and government). Copyright law clearly does not appreciate these dimensions of creativity. Why exactly is so much creativity incubated in social communities, and how do property rights and markets sometimes stifle culture?

Don't be mistaken into thinking that this book is a dry policy analysis. It's a lush, provocative and highly readable meditation on human creativity, culture and property rights, especially in the context of American history. Who knew that Benjamin Franklin was not just an iconic entrepreneur, but also America's "founding pirate," an innovator deeply committed to collaborative invention and the open sharing of knowledge? Hyde tells a largely untold story about the Founders' commitment to open, shareable culture and innovation. Highly recommended.
2 of 2 people found the following review helpful
5.0 out of 5 stars Terrific 10 Dec 2011
By aline soules - Published on
Format:Paperback|Verified Purchase
This book explains the true meaning "commons" in the context of the public good. This is critical to an understanding of the development of copyright, both in terms of the law and also in terms of critical thinking about this complex subject. Further, the writing style is excellent. The writing is readable, clear, and direct. I recommend this book highly.
9 of 13 people found the following review helpful
2.0 out of 5 stars Lewis Hyde's Tragic Commons 15 Dec 2011
By Brian Denton - Published on
Format:Paperback|Verified Purchase
Did you know the poems of Emily Dickinson - she died one hundred and twenty four years ago - will continue to be owned by Harvard University Press until 2050? That during the 2008 presidential campaign Fox News forced John McCain to remove a commercial from YouTube featuring unauthorized footage from a Fox-moderated debate? That the RIAA filed over 20,000 lawsuits against illegal downloaders, often teenagers, for claims in excess of $9,000 a track? These are the problems with contemporary intellectual property law that Lewis Hyde seeks to solve with his new book, Common as Air: Revolution, Art, and Ownership. Relying heavily on the American founders, Hyde argues forcefully that we have moved away from the vision of the commons held by the founders and towards an increasing "market triumphalist" enclosure on the commons. This enclosure, it is argued, is stifling American arts and sciences.

The dominating theme of this book is what Hyde calls the commons. The commons is a type of property wherein multiple parties exercise rights. For Hyde, we should strive for a more robust commons and cultural output should be managed as a "collectively owned resource" where diverse individuals possess a right of action. To support this idea, Hyde relies almost exclusively upon the writings of the American founders to support this assertion. Indeed, the Constitution itself supports this view. According to that document, the project of copyright in this country is "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Hyde here quite correctly states that the primary goal of copyright in our constitutional system is to enlarge and invigorate the commons. This is to be achieved by assigning limited monopolies to individuals so as to properly incentivize creators and therefore "promote the Progress of Science and useful Arts."

For Hyde and the founders, the expansion and strengthening of the commons is important for many reasons. To begin with, a robust commons is necessary to nurture the collective civic, creative, and spiritual dimensions of society. The devolution of power here serves to enrich the whole rather than the elite because the rights of action in the intellectual property belong to all rather than a few. The ability of the masses to draw freely upon their cultural past empowers them to improve their future. Beyond this, a more lively circulation of knowledge builds the foundation for democratic self-governance. For these reasons it is argued that the proper understanding of copyright law is that it serves to protect the commons rather than an individual's private property rights in cultural produce.

While Common as Air outlines some good policy prescriptions, such as imposing shorter limits on the exclusive rights granted to creators, it fails in its objective of setting out a coherent and desirable framework for intellectual property law. To begin with, the majority of the book is dedicated to explaining the commons with copious reference to the past. This could have been done in one chapter. Further, there is simply too much page space in this book detailing anecdotes of Benjamin Franklin's life. This space would better have been served by policy discussion on how a functioning commons would operate. Instead, the only concrete policy discussion takes place within the last half of the final chapter.

Throughout the book, Hyde rails against free markets and market privatizers. Early in the book he is so bold as to proclaim that "[a]lmost by definition, the commons needs to stint the market, for if the 'free market' is free to convert everything it meets into an exchangeable good, no commons will survive." However, perhaps Hyde has identified the wrong culprit. For Hyde, the commons is to be governed by a "public or collective being." Necessarily the "collective being" that will govern the commons will be government. It is government, if we look closely, that has caused most of the problems commonly associated with the ills of contemporary intellectual property law.

The most obvious governmental dictate that has contributed to the current intellectual property mess is the Copyright Act of 1976. This act extended copyright protection to the author's life plus seventy-five years after her death. The act also extended copyright in works made for hire and works copyrighted before 1978 to ninety-five years. This was no market production. This was a congressional act. Congress is also the author of the Digital Millennium Copyright Act, a piece of legislation that is rightly and roundly criticized in Mr. Hyde's book. Finally, it was the government that decided the Federal Circuit would have exclusive jurisdiction to hear patent law cases. This decision robbed patent law of an important competitive function. In most other cases and controversies the federal District and Circuit courts produce superior law through jurisdictional competition. Circuit splits signal to the Supreme Court of the United States that an issue needs to be addressed. Mr. Hyde's socialistic vision always leads to a monopolistic government. Adopting this model will only serve to exacerbate the problems of intellectual property law by universalizing system error.

Contrary to Mr. Hyde's conclusions, it is the decentralizing and liberating nature of markets that needs to be implemented in order to save intellectual property law from itself and resurrect the original understanding of the Copyright Clause that Mr. Hyde is so fond of.
1 of 1 people found the following review helpful
5.0 out of 5 stars Brilliant and Inspiring 13 Nov 2013
By Linda Bamber - Published on
Format:Kindle Edition
This book should be required reading for anyone old enough to vote. It tells the story of the privatization of what should be, and once was, owned in common; in other words, of a progressive and accelerating theft. And yet the book is a pleasure to read, the product of an idiosyncratic and delighted intelligence, full of narrative and surprise. It has been described as a polemic, and in a sense it is; but there's none of that angry, stay-on-message kind of writing that makes most polemics boring. The emotion is elided in favor of fascinating and varied analyses and tales; but the reader knows what the author feels because she begins to feel it herself. In other words, the book is a work of art as well as non-fiction, making a space for the reader's engagement by getting out of the way. Behind the book, moreover, is a deep and powerful sense of what is violated in the current rush to monetize everything. Hyde is not just a critic of privatization but an impassioned advocate of our common purpose and common good. The book reminds us of our faith in each other and of our place in the human world. It has been read as a brief for political action, and it certainly is; but its value, in my opinion, goes way beyond that. Common As Air revives our sense that we belong to something larger than ourselves that we can and should foster and love.
5.0 out of 5 stars Uncommonly fascinating book on the history of an important idea 29 Dec 2013
By steevithak - Published on
As a software developer who releases my work under the GNU GPL, a free software license, I’ve been on the receiving end of many a rant on the subject of property rights. My contributions to a freely accessible cultural commons of creatives works, I’m told, is communism and will lead to the eventual downfall of the one true system of property ownership as expressed by God in modern copyright and patent law. I don’t take such rants seriously anymore but when I found a book offering an in depth look at how our modern laws came to be and what the founding fathers actually said about these things; well, I could hardly pass it up!

Hyde starts out with a brief survey of ideas on property rights from cultures all over the world. He then looks at the origins of modern western thought. It turns out, of course, that the founding fathers believed quite strongly that free access to ideas was critical to democratic self-governance and free enterprise. This comes as no surprise to those in the free software and open source communities, who have rediscovered many of the same principles, including the importance of creating a “commonwealth of knowledge”.

Hyde’s story crosses paths with the free software community once or twice along the way. It also crosses paths with the supreme court, Donald Rumsfeld, John Adams, Sonny Bono, John Locke, Noah Webster, and a host of other familiar people. It’s the story of how we slowly traded the long term benefits of a commonwealth of knowledge for the enticing profits promised by “intellectual property”. The story makes great reading as history even if you’re not terribly interested in property rights. You’ll read dozens of interesting historical anecdotes you may not have heard before. For example, there’s the story of Benjamin Franklin’s founding of what sounds like the first hackerspace. He and other interested amateurs in Philadelphia put some money together, got some space, and started doing weird things with electricity. They created a crowd-sourced procedure for collecting and dispersing information about electrical experiments and open sourced the results, like an array of Leyden jars he named a “battery”. No doubt my right-wing friends would consider Franklin a liberal hippy with communist leanings. A modern “intellectual property” lawyer would consider him a “pirate”; indeed, Hyde titled the chapter “Benjamin Franklin, Founding Pirate”.

Once Hyde gets to the end of the history, he ponders what can be done to protect what’s left of the commons and even restore it for future generations. He offers three examples of real-world attempts at fixing the problem. The most familiar and successful of the examples is Richard Stallman and the GNU General Public License. The software commons created by Stallman and the GPL is responsible for at least some of the software running on nearly every computing device in the world today from the largest supercomputer to the phone or tablet on which you’re reading this blog. Hyde notes also the example of folk singer Pete Seeger, who worked with other folk singers to protect a piece of music called “We Shall Overcome” using the earliest known example of the “claim and release” idea later used in the GPL for software and, more specifically, in the Creative Commons licenses for art and musical works. It worked as method of freeing information in a system that forces everything to be “owned”. The final example is the attempt at keeping scientific information free that was made through a formal declaration by the scientists working on the Human Genome Project.

What all three of Hyde’s examples have in common is that they were devised not by the government but by individuals working on their own or in groups to protect the freedom of ideas FROM the system enforced by the government. There are vast amounts of money and effort focused on the government by business to create more and stricter “intellectual property” laws (because they are very, very profitable for the few companies that hold the “property”). His examples give us some hope that, even if we the people can’t match the financial and lobbying resources of the corporate world, we can still outsmart them and protect the freedom of our ideas.
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