America's Relationship With Pirates: It's Complicated

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Farrar, Straus and Giroux

Earlier this month, United States Commerce Secretary Gary Locke blasted online file sharers. "I think it's important to lay down a marker about how the Obama administration views this issue," he said. "As Vice President Biden has said on more than one occasion, 'Piracy is flat, unadulterated theft,' and it should be dealt with accordingly."

Teenaged music-loving pirates aren't the only ones in the government's sights. In recent years, the U.S. has played an instrumental role in forcing developing countries—under threats of trade sanctions—to adopt Western-style intellectual property laws. The most ironic detail in all of this is that the U.S. itself had extremely lax intellectual property laws until the 20th century.

In the decades after the Constitution was ratified, the United States cultivated its manufacturing and culture industries by doing the exact same thing we now prohibit other countries from doing. Historically, such countries have emphasized the right of their citizens to have free access to foreign inventions and knowledge. This was true of the U.S. and Switzerland in the 19th century, as well as Brazil and Thailand in the 20th century.

In Common As Air: Revolution, Art, and Ownership, Lewis Hyde argues that the reasoning behind those weak copyright protections was both practical and philosophical.

"The public domain surrounds us, but almost invisibly so, as if it were the dark matter in the universe of property," he writes. "To illuminate but one case in point, every time you drive your car to work, you unwittingly take a ride on the public domain. Exactly how many inventions of the human mind are bundled in a working automobile?"

It's an extensive list that includes vulcanized rubber, disc brakes, threaded lug nuts, and a nearly endless array of other technological advances: "from the rubber that meets the road, to the drive shaft, to the laminated windshield, to the paint on the roof, an automobile is a congress of thousands upon thousands of human inventions," he writes.

Hyde then rhetorically asks what a car's total cost would be if a perpetual patent covered all those parts and processes. The short answer is a lot. In a previous essay published on this site, I wrote about an analogous situation regarding a recent PBS documentary coproduced by Benjamin Franzen and myself. I explained how our film would have cost a few million dollars if we licensed all of the audiovisual quotations contained in Copyright Criminals.

Drawing on deep historical research, Common As Air discusses the reasons why Thomas Jefferson, Benjamin Franklin, and their peers were wary of perpetual patents and copyrights. The Founders viewed them as state-sanctioned monopolies that deterred the progress of learning, creativity, and innovation. This is the reason why they carved out room in the U.S. Constitution for intellectual property, the first country to do so.

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Kembrew McLeod is a professor of communication studies at the University of Iowa, and an occasional prankster. 

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