What We Share

Susan Scafidi in Just Above Sunset (blog), October 10, 2010

Media Source

It’s October, so that means baseball – the playoffs and the World Series. That’s been going on since 1903, although it didn’t used to be so complicated – no multiple divisions and wild-card slots for teams that weren’t the best of the best – and it didn’t stretch into October. And the players used to be a scruffy lot of good old boy white trash and brash immigrants, not multimillionaires bulked up on steroids. But it’s still baseball. It’s the American pastime. Or it’s become increasing both quaint and big-business, and no one really cares about it. It’s hard to tell.

And around this time of year the second-tier cable television channels – what they call basic cable – put that 1989 movie in rotation, Field of Dreams – the fellow builds that baseball field on his farm in Iowa and Shoeless Joe Jackson returns from that dead, as does the fellow’s father. It’s a sappy movie, about continuity and nostalgia for continuity. The old leftie peace-and-love famous writer, played by James Earl Jones, has the set-piece, the speech that sums it all up:

The one constant through all the years, Ray, has been baseball. America has rolled by like an army of steamrollers. It has been erased like a blackboard, rebuilt and erased again. But baseball has marked the time. This field, this game: it’s a part of our past, Ray. It reminds us of all that once was good and it could be again.

Is that so? James Earl Jones looks embarrassed delivering those Big Message lines. But he’s a professional, and an acting gig is an acting gig. But it doesn’t ring true. The nation is fragmented. We don’t have much in common. And if you’re casting about for something that might be anything at all that unites all Americans, you probably don’t think of baseball. In Indiana it’s basketball, in Texas high school football, and in South California it’s the Beach Boys or something. National identity is a slippery thing. And baseball is something for old guys, really. Their kids want to grow up and be hedge fund managers or movie producers. And a whole lot of them like soccer, of all things.

Still, on Sunday, October 10, it was the Cincinnati Reds on television, trying to move on up and getting eliminated by the Phillies – swept in three straight games, in spite of their young pitcher from Cuba who throws a one-hundred-seven mile-per-hour fastball. It didn’t do him much good.

Still there were echoes. The Cincinnati Reds are the oldest professional baseball team – they were the first – and the game was in Cincinnati at the Great American Ballpark. No really, it’s named that, even if the name comes from the insurance group that bought the naming rights to the stadium. It will do. And the place is picturesque – see this and this – so some folks watching the game might have felt all connected to the real America and that sort of thing. It might have been a shared experience.

Or maybe not – here in Los Angeles, as the game was burbling along in the other room, it was balancing the checkbook and paying bills with NPR on in the background and this feature, A Copyright Law for Fashionistas:

The fashion industry in the United States operates without copyright protection, which means that although designers own trademarks on their logos, there’s no law that prohibits copying the cut of a garment. Fashion law expert Susan Scafidi talks about a new bill – the Innovative Design Protection and Piracy Prevention Act – that could change that.

If you listen to that clip you understand the whole issue is what is mine, and what is out there in the public domain for anyone. It’s the same old conflict – we seem to get wrapped up in discussions of sharing, or that at least some things belong to no one, and everyone, and the opposite impulse, that it’s every man for himself, and you grab what you can and keep it.

It’s an old story and was discussed here in some detail back in February – but it comes down to this. Before there was America there was the Boston Common – although there was some problem with that. It wasn’t until 1830 that matters were settled and everyone agreed that, no, that was a place for everyone, as it is today. But Americans still argue over what constitutes The Commons – resources that are collectively owned, and thus owned by no one. But that can change. The process by which the commons are transformed into private property is called enclosure, a conflict in many an eighteenth or nineteenth century British novel. The idea is that forests, fisheries or grazing land are something we all share – so when the Sheriff of Nottingham tells Robin Hood he’s poaching, Robin Hood laughs in his face and we all smile. And out here the problem is surfing in Malibu. The good waves are owned by no one, but the rich Hollywood folks own access to the waves, expensive beachfront property, with amazing fifty-million-dollar homes, and that’s private property. As they say, you can’t get there from here. And the lawsuits never seem to end.

Of course the commons generally includes public goods – public space (even if sometimes not the access to it), public education, and the infrastructure that allows what we have going on here to function, like roads and electricity and water delivery and sewage systems. It’s just the basic stuff.

But even then there’s a countertrend, as some hold that many of these things should be commoditized – you know, things would be better if all the public schools were closed and education were entirely for-profit, so there’d be competition, and good schools would make a ton of money and bad schools would go under, as they should. Sure, such schools might end up massively exclusionary, to increase profits, but they’d be damned good. And you hear the same argument made about other public services.

The Tea Party movement seems to be about something like enclosure. You eliminate Medicare. Paul Ryan, the top Republican on the House Budget Committee, suggests phasing-out Medicare by replacing the entire Medicare program with a privatized voucher system, and then having that voucher gradually decrease in value over time – until it disappears. Then you’d be on your won – no sharing, as it should be. And Some Republican candidates have claimed that Medicare is unconstitutional – sharing the cost of unexpected medical problems, for the common good, was never in the document. And there’s privatizing Social Security – yes, privatization imposes major new risks on seniors and creates new administrative costs and forces benefit reductions – and a private plan, where the government helps you find a friendly investment advisor from their approved list and walks away, would cost more money than the present system. But you get to keep your own stuff and don’t have to share, except for the broker fees. And of course some of these candidates believe that Social Security as it is now is also unconstitutional. You’ve heard it all.

Where you come down on issues like these – maybe you think the whole Interstate Highway System is stupid and you shouldn’t have to pay a few cents more on each gallon of gasoline because you don’t drive in Kansas, damn it – makes for some lively debate. And it makes for an endless debate.

But maybe there is something we can agree on, something like baseball – as James Earl Jones explains it – that should be part of “the common.” And someone has suggested that. That would be Lewis Hyde in his new book Common as Air: Revolution, Art, and Ownership:

Moving deftly between literary analysis, historiography, biography, and impassioned polemic, the book traces the idea of commonage from its English pastoral manifestations and pays particular attention to the American founding fathers’ ideals of self-governance and civic republicanism grounded in the vision of a public realm animated by openly shared knowledge and property rights that functioned for the benefit of society rather than individuals alone. Hyde leaps nimbly, if sometimes too hurriedly, from the Ancient Mariner to the human genome project, ultimately offering a vision of human subjectivity that is fundamentally social, historical, and plural. If the book is perhaps not wholly successful in showing how we might concretely legislate for a cultural commons that would simultaneously allow for financial reward and protection from monopoly, it is nonetheless a fascinating and eminently readable attempt to coordinate commerce and creativity in what he sees as an increasingly restrictive economy of ideas.

Maybe we can share – maybe we can at least share ideas, while making sure the right folks get the right financial rewards for their ideas.

But that gets tricky. Robert Darnton explores that in his New York Times review of the Hyde book – we need to look at history and consider “protecting our cultural patrimony from appropriation by commercial interests.” And that’s not easy, we don’t want “a new enclosure movement, one that would fence off large sectors of the public domain – in science, the arts, literature, and the entire world of knowledge – in order to exploit monopolies.” He worries that Hollywood, the pharmaceutical industry, agribusiness, and all the lobbyists who basically “transform public knowledge into private preserves by manipulating laws for the protection of intellectual property.”

But Franklin, Adams, Jefferson and Madison made arguments against such privatization:

On the face of it, this way of defending the cultural commons might seem dubious, because the kind of knowledge that led to the Human Genome Project and the Internet was not dreamt of in the philosophies of the founders. To argue against Jack Valenti and the Motion Picture Association of America by leaping across two centuries could be wildly anachronistic.

To be sure, the founders built up a stockpile of quotable chunks of wisdom. Jefferson: “The field of knowledge is the common property of mankind.” Franklin: “That as we enjoy great advantages from the inventions of others, we should be glad of an opportunity to serve others by any invention of ours, and this we should do freely and generously.” The United States Constitution, Article I, Section 8, Clause 8, providing for copyrights and patents “to promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” But the devil can quote Jefferson, and lawyers can construe the Constitution in ways that restrict knowledge rather than promote it.

Still, the late eighteenth century was a special time, if you read Hyde’s account of Franklin and the lightning rod:

He shows that Franklin did not tame lightning in Promethean fashion, all alone, by directing his solitary genius at the heavens. Franklin actually collaborated with three other experimenters in a common laboratory set up in the Pennsylvania State House. He also applied information derived from earlier theorists and experimenters, including William Harvey, Isaac Newton, the inventors of the Leyden jar, and many wits who had noticed the similarity between electric sparks and lightning.

Franklin’s famous kite experiment did indeed express original insight about the nature of electricity as a single “fluid” with positive and negative charges; but when Franklin reported it in The Pennsylvania Gazette, he did not mention that he was the experimenter and did not attach his name to the article. When publishing instructions on how to make a lightning rod in Poor Richard’s Almanac, he also refrained from noting that he was the inventor. And he never sought a patent for it, because he had drawn on a common stock of knowledge and felt committed to “produce something for the common benefit.”

Of course the Tea Party folks, if they read the Hyde book, will now be calling Ben Franklin a socialist. Expect that from Glenn Beck, who would also be aghast as Jefferson’s description of knowledge as “common property.” But that was a sign of the times:

It pervaded the entire Enlightenment, when men discussed experiments and ideas in correspondence networks and a chain of academies that extended from St. Petersburg to Philadelphia. Above all, they communicated their thoughts through print. Letters, learned societies and the printed word came together in the creation of a Republic of Letters, an egalitarian world of knowledge open to everyone – at least in principle, although in practice it was restricted to a literate elite.

And we could have that again:

The ideal of a Republic of Letters may sound archaic, but it is still alive. Hyde also evokes it with another name, the “cultural commons,” which summons up associations with current projects for sharing knowledge like Creative Commons, the Public Library of Science, Wikipedia and the Internet Archive. He contrasts it with efforts to close off sectors of knowledge so as to exploit them for private profit, as in the case of companies that attempt to use the understanding of the human genome in order to gain control of DNA segments related to diabetes and breast cancer.

But there is copyright law. And there’s a history there too:

Jefferson wondered whether copyright ought to exist at all. In a famous letter to Isaac McPherson, he noted a peculiarity of communication by print – “He, who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”

In the end, Jefferson was persuaded by Madison that a strictly limited copyright would indeed “promote the progress of science and the useful arts,” as the Constitution was to proclaim. By enjoying a short-term monopoly on the publication of their writings, authors would be encouraged to share their ideas in print. How short should the term be? The copyright act of 1790 set it at 14 years, renewable once. The founders took this limit from British precedents, which went back through a series of court cases to the original copyright act of 1710. Along the way, some experts argued that copyright should be perpetual, because intellectual property was like ownership of land – absolute until alienated by sale. But that view was overridden by the notion that knowledge belonged to everyone and should revert to the public domain, where everyone can make use of it.

Yeah, but now copyright lasts for the life of the author plus seventy years. And there’s the Copyright Term Extension Act of 1998 – the famous Mickey Mouse Protection Act, passed to keep the Disney folks happy – which now prevents most twentieth-century literature from being available in the public domain. Is that a good thing? Darnton notes that when asked how long he thought copyrights should last, Jack Valenti, the lobbyist for Hollywood, said, “Forever, minus a day.” Darnton says Valenti has won, and Jefferson has lost.

But Robert Darnton is the Carl H. Pforzheim University Professor and director of the Harvard University Library and he won’t be deterred. In a blog post at the New York Review of Books he offers an Enlightenment idea:

Can we create a National Digital Library? That is, a comprehensive library of digitized books that will be easily accessible to the general public. Simple as it sounds, the question is extraordinarily complex. It involves issues that concern the nature of the library to be built, the technological difficulties of designing it, the legal obstacles to getting it off the ground, the financial costs of constructing and maintaining it, and the political problems of mobilizing support for it.

Despite the complexities, the fundamental idea of a National Digital Library (or NDL) is, at its core, straightforward. The NDL would make the cultural patrimony of this country freely available to all of its citizens. It would be the digital equivalent of the Library of Congress, but instead of being confined to Capitol Hill, it would exist everywhere, bringing millions of books and other digitized material within clicking distance of public libraries, high schools, junior colleges, universities, retirement communities, and any person with access to the Internet.

Thomas Jefferson did say that knowledge is the common property of mankind, even if most of humanity has been cut off from the accumulated wisdom of the ages, so to speak. But we now have the technical means to make Jefferson’s dream come true. We have the internet.

And what ticks Darnton off is stuff like this copyright notice attached to a recent electronic edition of Alice’s Adventures in Wonderland, which was first published in 1865:

Copy: No text selections can be copied from the book to the clipboard….
Lend: This book cannot be lent to someone else.
Give: This book cannot be given to someone else.
Read aloud: This book cannot be read aloud.

And he adds this:

Contrast that statement, made only yesterday, with the following remarks by Voltaire after the publication of his Questions sur l’Encyclopédie in 1772: “It is hereby permitted to any bookseller to [re]print my silliness, be it true or false, at his risk, peril, and profit.”

We have lost our way, apparently. And we have some catching up to do:

Virtually every developed country has launched some kind of national digital library, and many developing countries are doing the same. They have worked through all sorts of problems and have arrived at viable solutions. If they have not come up with one model that fits countries of all sizes, they have demonstrated that the idea of a national digital library can be put into practice. It is not just true but tried.

At Harvard, we have conducted a preliminary survey of the projects underway in other nations. We have even located an incipient NDL in Mongolia. The Dutch are now digitizing every Dutch book, pamphlet, and newspaper produced from 1470 to the present. President Sarkozy of France announced last November that he would make €750 million available to digitize the nation’s cultural “patrimony.” And the Japanese Diet voted for a two-year, 12.6 billion yen crash program to digitize their entire national library. If the Netherlands, France, and Japan can do it, why can’t the United States?

We can do this:

We can equip the smallest junior college in Alabama and the remotest high school in North Dakota with the greatest library the world has ever known. We can open that library to the rest of the world, exercising a kind of “soft power” that will increase respect for the United States worldwide. By creating a National Digital Library, we can make our fellow citizens active members of an international Republic of Letters, and we can strengthen the bonds of citizenship at home.

That’s not a bad idea. And we wouldn’t need to pretend that baseball binds us together. We’d have our patrimony, and we could argue about all the other stuff – Medicare, Social Security, who pays taxes and who doesn’t – to our hearts content. But we’d have a base.

But you may not quote any of this – Hyde and Darnton and the proprietor of this site don’t do this sort of thing just for the fun of it. Pay up.

Just kidding – Jefferson was right.