Ethan Zuckerman’s online home, since 2003

Lewis Hyde and the enclosure of silence

Lewis Hyde, poet, critic and intellectual historian, has been hard at work on a book about “the commons”, and specifically the notion that ideas should be part of a cultural commons, not treated as private property, as they often are today. The idea of commons is an ancient one, from medieval Europe, where lands, streams, and forests were treated as common property by villagers

We’re challenged to offer a definition of property, and most of our definitions center on our ability to make use of a property. Lewis confirms that this is a valid way to think about property – as a right of action. “I have a right of action to drink this cup of tea, to sell it, to pour it out.” Property can be thought of as a bundle of rights of action. But there’s a strong tradition of property based on exclusion – Lewis quotes Lord Blackstone and his description of property as “that sole and despotic dominion” where one asserts rights above and over all other rights. The right to exclude, in western jurisprudence, is asserted as a core property right. Lewis, on the other hand, believes that the right to exclude is a subset of the rights of action.

Many Americans know about the commons from Garrett Hardin’s essay, “The Tragedy of the Commons“. Hardin wasn’t a historian, but a population biologist, who was concerned with problems of population growth. Lewis argues that Hardin’s prediction – that individual economic maximization will destroy collective resources – is based on a fantasy of a commons. In reality, commons had serious limitations on rights. You could only cut wood between Christmas and February, for instance. And commons were local entites – locals could exclude those from outside the region. These customary use rights meant that commons weren’t tragic – in fact, they lasted for millenia in Europe. (I interjected here to ask why Hardin’s idea has had such currency. Lewis offers two speculative reasons why – it’s a great phrase, and it came out at a moment where the Cold War was in full swing, and Hardin’s idea was a strong defense of private capital against communism.) Lewis suggests a different way to look at the commons, quoting Carol Rose, who talks about “the comedic commons”, one with a happy ending. As such, the commons was a site of action, a space for citizens to act on their own rights.

Enclosure was the practice of converting commons into private property. In England in the 18th and 19th century, there was a widespread enclosure movement, and pushback from commoners. Law protected rights to “tear down encroachment” – if someone’s hedge was growing into the common field, you had a right to prune it back. A community ritual of “beating the bounds” was a convivial affair, designed to celebrate the commons while tearing down anything that infringed upon it. Critical legal documents like the Magna Carta and the Great Charter of the Forest contained extensive references to preservation of common rights, forbidding the fencing of land that prevents access to common lands.

The connection of property to exclusion was a challenge for defining the idea of “intellectual property”. The “non-rivalrous, non-excludable” nature of ideas led to an argument that published works were, automatically, not property because they meant someone else would have acces to those ideas. Other arguments pointed to the ancients as a commons, “where you have a free right to fatten your muse.”

As the monopoly on publishing in England – granted by the Crown to a selected set of publishers – was challenged by Scottish printers, who created cheaper editions of works, three theories emerged for protecting intellectual property:

- The labor theory – I made a work, and therefore I own it and can constrain how people use it
- The moral rights argument – The book is an extension of me, and you can’t affect it without affecting my personal rights
- The utilitarian theory – We wish to incentivise creation, which may require us to protect rights so that people can monetize them.

Jamie Boyle argues that, in the past twenty years, we’ve seen a rise in enclosure of intellectual property, exemplified by changes to US copyright law which means that there’s no need to register works to gain copyright and term extension that’s essentially indefinite. Lewis argues that Boyle is actually talking about a second enclosure – an earlier enclosure surrounded the emergence of intellectual property legislation under crown copyright. And he wants to argue that there’s a third enclosure, the “enclosure of the wilderness of the mind.”

Lewis is worried that a lot of our IP rules instantiate a certain model of the human self, the self as a creator and owner of property. But this isn’t the only way to create. He quotes Dogen Zenji, a 12th century zen master: “We study the self to forget the self. And to forget the self is to wake up to the world around you.” Creativity can come from self-abnegation; he quotes a letter from Elizabeth Bishop describing her admiration for Darwin as someone who stared at a mass of material and forgot himself to come up with something new. “To get to something truly new, you can’t work from the known.”

We usually think of what’s outside of intellectual property as “the public domain”. But public domain, Lewis tells us, is a domesticated sphere, a space filled with things we are familiar with. Beyond that is a which is not yet explored. He explores the idea that human beings need to go into silence, to experience solitude to emerge as human beings.

To explain about the enclosure of silence, he cites John Cage and his visit to an anechoic chamber at Harvard. Cage experienced two sounds, a high whining which was the sound of the nervous system operating and a low rumble, the circulatory system. Silence, for Cage, is non-intention. It’s the things you don’t mean to happen. And silence, as explored in pieces like 4’33″, is that makes you listen to that which you don’t intend to listen to.

You may be surprised that silence can be litigated. But Lewis tells the story of a rock album, “Classical Grafitti” by The Planets. To separate two sections of the album, the producer, Mike Batt, put a minute of silence between the two sides and credited it to “Cage/Batt” as something of a joke. But then mechanical royalties from the recording started accruing to Cage. When Cage’s published got a check for £400, he sued Batt for copyright infringment, specifically for the violation of Cage’s moral rights, a right not to be misattributed. The suit was settled out of court with the producer cutting a check to the John Cage Foundation. Lewis sees this is ironic – Cage’s intention was to remove his intent from the work, as he did with chance operations. But intellectual property legislation is designed to protect the personality of the author.

We enclose silence – unknown possibility – at our own risk. Jonathan Zittrain demonstrates in his recent work on generativity that the value of systems often comes from unknown uses – the Apple II became succesful when Visicalc, the first spreadsheet, was written for the platform. If you want generative uses for a technology, Zittrain warns that you need to be careful what you lock down. Lewis also cites a case in which cell biologists patented a particular series of amino acids. They had no idea their purpose, but “purifying and describing gives you a right to own.” A later set of researchers speculated that these aminos bloc the growth of cancer cells – on publishing their research, the first researchers sued them for many millions of dollars. This can very effectively prevent exloratory science, he argues.

“When we enclose wilderness, we begin to give property rights in areas where we have yet to understand what’s happening.” An enclosure of silence affects the human self and the world we inhabit. How do you become a creative actor in this world? How do you beat the bounds of this commons?


As he so often does, David Weinberger has excellent notes of the same talk, which may offer a different perspective.

4 Responses to “Lewis Hyde and the enclosure of silence”

  1. Don Bailey says:

    I have read your blog for some time now, have enjoyed it much and learned from it as well. However, I am choking on your circles around Garrett Hardin. I read the Tragedy in either 1969 or 1970. I understood clearly that he was describing an unregulated commons. I knew the difference then, and i think everyone did, except maybe those without a trace of either rural heritage or common sense. In my home town, our electricity came from a coop, our phones were coop, and there were no water meters in town – everybody paid $3 per month for water. Also our baseball field was a commons – mowed, baled, used for various activities such as sports, parking grain trucks, car driving practice, shooting gophers, fireworks experiments, etc. But we never really thought about problems that could occur in the commons until Garrett Hardin. So lets not turn him into the the man with the dumbest theory since the Flat Earth idea.

    I feel better now. Thanks. (I should write sometime when i really learn something, not just when I’m having heartburn.)

    DB

  2. Ethan says:

    In my defense, Don… I’m not critiquing Hardin – Hyde is. Keep in mind that a good chunk of my work on this blog is documenting talks I attend. The commons is not my main issue, and I’ve got mixed feelings about the Hardin piece… but it isn’t one I’d choose to circle around, it’s one my colleagues appear to be obsessed with… :-)

  3. While I realize you are summarizing a talk here and thinking it through, you make it clear that you *like* what you hear so your apparent embracing of the ideas and invocation of them have to be debated in their own right, not merely as your lecture notes. And I’m going to take this opportunity while I think of it to challenge Creative Commons, which you’ve extended over all your projects.

    Hyde (and you) make an awfully broad claim about “ideas”, with a refusal to acknowledge that there are all kinds of ideas with all kinds of purposes, and it’s ok to copyright and patent some of them to sustain the idea-generator.

    Property value is inherent, and in a free marketplace finds its value when sold, and not only in its use — that’s a very narrow and socialist utilitarian view of property.

    There’s really only so far you can force this metaphor of a place where people grazed their cattle because they needed cattle to make a living and survive — and the eternally copyable Internet with its requirements of paid servers and paid broadband and a mixture of paid and unpaid programmers, and then a vast swarm of users claiming to use the hardware and software products for free. It’s a very different dynamic when at one level there isn’t any scarcity at all, with digital content being endlessly copyable, but at another level, there very much is scarcity, as maintenance of the big copy machine needs servers, electricity, staff, etc.

    Social media generally doesn’t monetarize itself, even as it destroys the old media that had moneterized itself, and there isn’t yet a widely viable way for people other than self-appointed web 2.0 and a handful of bloggers and Second Life content creators, perhaps, to make money off the Internet qua Internet in this iteration. The next iteration simply must provide a way for everybody not only to copy and learn but to earn a living usefully, and not in thrall to Internet oligarchs like Google which runs a system a lot like serfdom with quit-renters working for their Ad Sense pennies.

    The commons has traditionally been a place to *exchange* ideas, but I think it’s really stretching it to say that it is a place that traditionally, ideas were “not treated as private property, as they often are today”. This really seems like an anachronism. Could you cite an example from history when people made inventions and carried them to public commons and gave them away? The notions of commons based on literal commons and on literal speech and such took place in a very different setting without copying except by dint of labour and machines costing money and seeking compensation.

    History has been about people working alone or in groups and seeking patents, so it seems to me you are overlying a modern notion of what you want the “Creative Commons” to be, based on a utopian ideology, and not any actual reading of history.

    It’s also really an interpolation into history to say that the idea that the “Tragedy of the Commons” was inspired by some felt need to argue the concept of private property against communism. That’s rather fanciful, but even if true, implies that there’s actually something good about communism that was merely “misunderstood” or “inexpertly applied” and something evil about private property that needs to be flogged now as a concept.

    But the Tragedy of the Commons, historically situated and its recent meaning, was about scarcity of resources and difficulties in allotting them fairly for any society more than it is about “communism” or some “Red Scare”. If people historically solved the problem of the Tragedy of the Commons by fencing off their parcels, that ought to tell you something about invoking communism as a solution to scarcity and distribution problems — people don’t opt for that solution under natural real-life conditions.

    In fact, the Creative Commons, which I’m more than happy to call Creative Communism, is about getting people to decouple their intellectual property from commerce and working for free and giving away property for free, with nothing but those who sell ads against the content with enough traffic able to gain a thing from it. It’s about shaking loose their connection to claims to copyright and/or patents to tether them to commerce — and the need to get paid — and trying to substitute for that real and legitimate need a shill about getting credit and contributing to some mythical planetary commons where everyone is going to exchange content freely and happily for ever, “all watched over by machines of loving grace”.

    I’ve been running a poll about real attitudes and use of Creative Commons, which CC itself never does, and I’ve also written several blog posts debunking the cult around CC and its myths. The poll so far which is on a blog already skewed with readers very much *pro* CC lets us know that a significant number of people refuse to use CC because they don’t feel it is necessary to protect copyright and they don’t need it, or they want to get paid for their content, and CC doesn’t help them do that. The people who can claim they make an income by giving it all away on CC (like the Doctorows of the world) have to be surveyed further to find out *if they make a living wage* doing that.

    http://secondthoughts.typepad.com/second_thoughts/2009/04/further-on-creative-communism.html

    Artists and designers and people providing all kinds of IP on the Internet need to get paid. Why can’t they? The tragedy of the Creative Commons is that it did not design a license — due to its founders’ ideological hobbles — to say to a viewer “Pay me and then you can have a copy”. There was no reason why micropayment systems could have sprung up along with the idea of digital content distribution, and be no different than ebay’s immediate establishment of a payments system to sell real content.

    I really think your historical notions of antecedents in some idyllic past of “sharing” are a modern overlay and a contrived backdating to try to justify your current pastoralism about the web.

    Web 2.0 is a Soviet collective farm, Ethan — We pretend to work, and they pretend to pay us” — except for Google, which sucks all the value there is to be had out of its ad agency function, and a handful of IT consultants and widgeteers.

    P.S. The reason I came to your blog was to see if you would be telling us that the Iranians twittering about the elections were all fake, etc. as you did with Moldova. But I see you aren’t even writing about Iran. And you are engaged in revisionism about the Chinese filtering software by trying to make the issue about how “the software doesn’t work anyway, kids, so don’t worry” when it is the intent behind the software that you have to address. The Chinese are very good at making software work for this purpose, and are hired by other countries like Turkmenistan.

  4. Ethan says:

    Hi Catherine. You and I probably agree more on CC than we disagree. David Weinberger’s notes on Lewis’s talk includes the question and answer session, where my question wonders if Lewis isn’t far too romantic about the commons and unfairly dismisses the benefits of monetizing ideas: http://www.hyperorg.com/blogger/2009/06/09/berkman-lewis-hyde-on-the-commons/

    I use CC for my personal work because this blog isn’t the way I make money. I make money by speaking and by getting academic appointments, both of which directly relate to whether my ideas are discussed and gaining currency. It’s my sense that, by making the texts I write here reproducible, with attribution, they’ll reach a wider audience and raise my profile. For me, personally, it’s a tactic to increase market share more than a statement of communitarian belief. The situation with Global Voices is a bit more complicated, but my support of CC in that context has to do with the intent of the project – to bring more voices into mainstream media. In that sense, CC lowers a barrier to inclusion that conventional copyright puts in place. That said, we’re working closely with media organizations to sell GV’s work – we’re not renouncing financial motivations, just not having them hinge on copyright.

    Haven’t written on the Iranian protests yet, but the crawlers are generating data – I’ve got crawlers collecting data on “Tehran” and on “#IranianElection” and “#IranElection”. Working with some GV friends to get appropriate terms in Farsi as well.

    As for the China critique – revisionism? Really? My colleagues, who’ve looked at the tool, think it’s so badly put together that its use won’t be mandated. Reporting that opinion is hardly an endorsement of their censorship strategy.

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