The entertainment industry is very good at framing questions about intellectual property. Here is one of their typical assertions: “There’s no difference in our mind between stealing a pair of shoes in a shoe store and stealing music on-line. A theft is a theft is a theft.”
If in fact there is a difference between downloading a digital MP3 file and stealing a pair of shoes this “theft frame” neatly erases it and seals the erasure with a tautology.
Some of us think there is a difference, of course, but what alternative frame might reveal it? In what imaginative or discursive universe should we be having our discussion about digital copying? What metaphors should guide this discussion?
In the next few posts I’m going to suggest a few alternatives. Perhaps the oldest of these assumes that the fruits of human creativity are gifts from the gods, the muses, or the ancient ones.
Such was the assumption in China for centuries. In The Analects, Confucius writes, “I have transmitted what was taught to me without making up anything of my own. I have been faithful to and loved the Ancients.” To honor the past was a consistent virtue for a thousand years in Imperial China; thus to copy the work of those who came before was a matter of reverence rather than theft. Said the fifteenth-century artist Shen Zhou, “if my poems and paintings…should prove to be of some aid to the forgers, what is there for me to grudge about?”
A similar, more theistic assumption can be found in medieval Christianity, where the dictum was Scientia Donum Dei Est, Unde Vendi Non Potest — “Knowledge is a gift from God; consequently, it cannot be sold.” To sell knowledge was to traffic in the sacred and thus to engage in the sin of simony. Reformation Protestants were particularly sensitive to simony, having charged the Catholic church with the buying and selling of ecclesiastical preferments and benefices. Martin Luther said of his own created works, “Freely have I received, freely I have given, and I want nothing in return.”
I suppose that in the present moment if you were a Lutheran choir director who downloaded hymns for your congregation and the music industry sued, saying that the work had been copyrighted and that “theft was theft,” you ought to be able to shift the frame by replying: “simony is simony.”
I’m not sure that would carry the day in an American courtroom, but at least it has a historical grounding.
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Lewis Hyde teaches at Kenyon College and is writing a book on “cultural commons.”