11/12/2010 09:25 pm ET Updated May 25, 2011

An Obvious Distinction

David Wallace-Wells has a very long review of the great Lewis Hyde's new book, Common as Air, at The Nation. The point of his 6,000 words is to convince you that Hyde, like other "free culture warriors," is engaged in a project to "exhort[ others] to piracy and the plundering of culture."

As a "free culture warrior" myself, I was a bit surprised to learn that I was in the business of "exhort[ing others] to piracy." After all, my book Free Culture (2004) explicitly condemns so-called "piracy" almost a dozen times. I repeat that condemnation again and again in Remix (2008). And so I dove with eagerness into Wallace-Wells' review, to see whether I had in fact made a mistake. Would The Nation finally erase my false consciousness? Was I now, and had I always been, a pirate?

It didn't take much reading, however, to unearth the fallacy at the core of Wallace-Wells' world: characterizing (while simplifying) Jaron Lanier's work, Wallace-Wells refers to an "open-source imperative to piracy."

Readers of my work will, with that single phrase, recognize the error in Wallace-Wells' ways: for his target is an oxymoron. There could be no "open-source imperative to piracy" since "open-source" is a practice that rests explicitly upon a respect for copyright.

"Open-source" software, like Free Software, and much of what I refer to as "free culture" is creative work that is protected by a copyright license. Like any copyright license, these open source or free culture copyright licenses impose certain requirements on people who would use creative work in a manner that triggers the application of copyright law. They all depend upon the copyright system to function in the way that their copyright owners desire. They are expressions of the will of a creator within a system that respects copyright. There could therefore be no conflict between "copyright" and anything remotely attached to "open source" culture. "Open source" culture celebrates one of the freedoms to choose that the system of copyright gives us.

So called "piracy," by contrast, is a denial of a choice by a copyright owner. It says to the creator, "I don't care what you want. I am taking what you have created." It doesn't respect the freedom that copyright law gives to the creator. It denies that the law should secure to the creator any such freedom to choose. The only relevant choice in pirate culture is the choice of the pirate to take. Not the choice of the creator to make her work available.

I understand the motivations of at least some of these so called "pirates." Some are political. Some are simply selfish. But whatever complex set of justifications stands behind their actions, their actions have nothing to do with the "open source" or free culture ethic. What is distinctive about that ethic is that they enable creators to exercise a choice. They don't try to justify the choice of consumers to take from a creator what she doesn't offer.

Of course, the creator doesn't, and shouldn't, have the power to restrict access to her work beyond the limits of copyright. Thus of course, "free culture warriors" celebrate the rights of "fair use," which are express limits on the scope of the copyright monopoly. But to celebrate limits is not to deny the legitimacy of the control permitted within those limits. I celebrate the moment a work enters the public domain. That doesn't mean I deny the legitimacy of a period during which the work is under the protection of copyright.

Maybe, however, Wallace-Wells' real concern is that by giving away some of the rights protected by copyright, creators would therefore encourage piracy. Maybe the concern is that being soft on rights is just the first step down a slippery slope to ignoring all rights.

But why would anyone believe that? Do public parks encourage trespassing? Does Bill Gates giving away more than $20 billion to charity encourage communism?

The idea betrays a sloppiness of thinking that has animated dozens of self-righteous "defenders" of the copyright system. The free choice of copyright owners to waive some portion of their copyright is not a rejection of copyright. It is instead -- as even the great (and sadly late) Jack Valenti recognized when he endorsed the Creative Commons project -- an expression of the freedoms guaranteed by copyright: The freedom, as any property system rightly secures, of the property owner to deploy her property as she sees fit.

That choice is not "piracy." And in 2010, to suggest that it is betrays not just sloppy thinking. It betrays an extraordinary ignorance. This terrain has been plowed a hundred times in the past decade. It would take anyone keen to understand before they blathered on exactly 10 minutes to find any number of essays that have pointed to this error precisely. (Indeed, Hyde makes the point himself when he discusses both the GPL (p220) and Creative Commons (p244).) Yet here again is a defender of the sanctity of authors who refuses to read what other authors have written.

I'm all for protecting authors' rights. But I think the most important thing to protect is respect for what has been written. Reading is the first step to that respect. Reading is what Wallace-Wells has not done well.