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.

When lobbying organizations like the Motion Picture Association of America claim that copyright is so important that it was written into the Constitution, they neglect to mention that these protections contained important limitations. One such constraint is that creative works and inventions must enter the public domain after "limited times"—which, in the case of patenting, is 20 years. (This is why automobiles don't cost a fortune in licensing fees.)

The existence of a public domain encourages innovation, because it allows people to build on others' creations. This isn't just limited to science and industry; it applies to art, music, and other forms of expression. Even the melody of the "The Star-Spangled Banner" was swiped from a popular 18th century English song, "To Anacreon In Heaven." In 1812, lyricist Francis Scott Key borrowed the tune, and in 1931 it became the national anthem. Then—in 1969, at Woodstock—Jimi Hendrix famously took this public domain work and drenched it in a purple haze of feedback appropriate for the violent and dissonant Vietnam era. We are a nation of pirates.



You could accuse Lewis Hyde (or me) of longing for a return to a kind of pre-industrial utopia where everything is shared. In this hyper-commercialized, free-market age, many contend that only strong and inflexible intellectual property law protections can create incentives to innovate. But this is simply not true. To give one counter-example offered in Common As Air, the Internet owes its very existence to the fact that most of its foundational protocols, codes, applications and architecture were not heavily protected.

This gave the programming community enough freedom to improve upon what already existed in the commons of ideas—developing the Internet from the ground up. Today's Internet would not exist if overzealous programmers and software companies tried to restrict access to their proprietary information, much like they do now.

Lewis Hyde isn't calling for the abolition of intellectual property laws, but he does believe—as do I—that the safeguards used to ensure creators are compensated shouldn't be so airtight they choke future creativity. This is a proposition that the U.S. Supreme Court has regularly agreed with. "The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of science and useful Arts,'" Justice Sandra Day O'Connor stated in a 1991 ruling.

I'll leave you with O'Connor's words, which I have acquired free of charge (government publications are in the public domain). "To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This result is neither unfair nor unfortunate. It is the means by which copyright advances the progress of science and art."

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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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