making, and gifting are as one, and that, in their efforts to challenge traditions of expert ownership, they establish an alternate logic, or logos.
The first section of the chapter is an introduction to copyright history, theory, and policy. It provides a selective rather than chronological account of copyright, directing attention to certain theoretical assumptions and pivotal moments.5 In the analysis that follows, I begin by describing the Creative Commons licenses as the imposition of order on cultural invention and the individuation of creative efforts. Second, I discuss the management of value, a complicated notion in gifting theory, by distinguishing between the declarative and subjective conditions for gifts. Third, the discussion of value is followed by an analysis of how the Creative Commons conceptualizes both itself as a program and its participants’ inventions as gifts. I offer an interpretation of this duality of what gifting means in the Creative Commons infrastructure by analyzing assumptions about intentionality and digital action. Fourth, I examine how gifting and the notion of inheritance together complicate intent. Fifth, I examine how the gifting logos accounts for productive abundance, the massive quantity of digital cultural production. Sixth, I examine how copiousness may be thought of in relation to time and the rhetorical sensitivity to timing marked by the concept of kairos.
COPYRIGHT, “STUFF,” AND STRUCTURES OF CONTROL
Copyright codifies the idea that a person who creates a cultural artifact ought to be allowed to control that artifact’s public life, particularly the making of duplicate copies. The right to exercise such control is grounded either in the creator’s personal connection to the artifact or in the assumption that control, especially over profit, incentivizes creation. Expertise is a dimension of copyright, in other words, either because expertise is what characterizes the expert herself or because it has a certain market value. Since the 1990s the emergence of user-friendly digital technologies and the World Wide Web, enabling the global production, reproduction, and circulation of cultural content, has made copyright exceedingly complicated. These technocultural developments, and their fraught relationship to legal tradition, are duly noted in every treatment of copyright and digital culture. Such notations are merited and important but ought to be qualified with at least two comments. First, technological determinism as a perspective warrants critique, which I offer in chapter 1. Second, and more important as I proceed in this chapter, copyright was always complicated. The notion that a particular symbolic form can belong to a legally empowered individual is on some level preposterous. Hardly anyone would deny that knowledge and art are products of inspiration. As Boon, whom I cite in chapter 1, notes, imitation is integral not only to learning but to being human. How then could a person possibly put particular words or images in her or his pocket and claim to own them? Yet powerful legal institutions and cultural precepts, including labor, capital, originality, and personhood, reinforce copyright. This chapter must be read, in short, in the context of complexities that predate the internet.
As an exclusive commercial privilege, copyright was from the very beginning associated with the production of stuff. In Venice in 1469, the five-year printing privilege extended to the German printer Johannes von Speyer was not different in kind from the contracts extended by the Venetian authorities to other craftsmen. Like them, Speyer made and sold a material product. The exclusivity of the process by which the product was made ensured profit. Joanna Kostylo describes how “makers of soap, of gunpowder and saltpeter, of glass” petitioned for trade monopolies on “every imaginable subject, from devices for draining marshes to windmills and poisons, or culinary experiments such as special kinds of lasagna in an Apulian style and new types of dumplings filled with meat and fish.”6 Using the screw press, Speyer made text just as others made wine and olive oil. In the Speyer story of copyright origins, the text content itself is beside the point. Of far greater importance is the manufacturing technique that produces stuff, specifically text in Speyer’s case. When two hundred years later another entrepreneur named John Usher secured an ad hoc discretionary grant to publish the laws of the colony of Massachusetts, his relationship to the local authorities was similar to Speyer’s, insofar as he, too, sought primarily to make stuff for profit. Usher’s printing privilege was indistinguishable from those extended in Massachusetts to industrious men who made salt or operated ferries.7 Speyer and Usher in their own times manufactured text as a commercial object.
Origins and Regimes of Control
As copyright from the beginning was about the production of stuff, so were the ancien régimes of copyright about exercising institutional control. In the Venetian case, mercantile guilds of printers and booksellers served as a mechanism for oversight.8 The same structures that were put in place in the early sixteenth century to retain commercial advantages for Venice’s prosperity, preventing craftsmen’s individual entrepreneurship, effectively enabled state-sanctioned censorship.9 As copyright historian Mark Rose notes, the Venetian system was exported to several European countries, including England. There, a royal charter in 1557 authorized a guild of book binders and publishers called the Stationers’ Company to oversee published materials, moderating the circulation of anything that might be construed as “illicit, antigovernment publishing.”10 The powerful company’s “monopoly on the British book trade” was solidified a few years later with the Licensing Act of 1662, which made it illegal to publish any text without special permission.11 This law also restricted the import of published materials and limited the number of active presses and printers. For five decades, the Stationers’ Company policed libel, sedition, heresy, and treason, managing the commercial as well as the ideological aspect of the British book industry.
The Stationers’ Company’s authority and usurpation of profits drew the ire not only of booksellers and printers excluded from the royal arrangement but also of authors. Not unlike in the twenty-first century, creators of cultural content resented the state and corporate powers that constrained them. Amid the late seventeenth century’s general prosperity and increased literacy, what Rose describes as an “emergent ideology of possessive individualism” prompted authors to critique the fundamental presumption of the Stationers’ Company.12 Questions arose: What rights to the creative accomplishments of an especially gifted individual should a commercial guild have? To whom do ideas belong? Prominent literary figures made their case for the cause: in the polemic Areopagitica in 1644, English poet John Milton extolled the benefits of books and condemned the royal licensing system. To Milton, censorship, although it may prevent infectious material from corrupting the public mind, obstructs discovery and truth. Likewise, John Locke, a staunch critic of the Licensing Act, argued in Two Treatises of Government in 1690 that a person’s natural right to the property that results from his (or her) labor is inviolable. The social order’s first task, according to Locke, is to protect individual property. Notes Rose, “The representation of the author as a creator who is entitled to profit from his intellectual labor came into being through a blending of literary and legal discourses in the context of the contest over perpetual copyright.”13 The British Parliament did not renew the Licensing Act in 1694.
What happened next is the watershed moment in any historical account of copyright: In 1710 the Statute of Anne went into effect. The two most significant consequences of the statute, whose full title was “An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned,” were that authors could be designated as the proprietors of their texts and that the privileges associated with such proprietorship, including those enjoyed by the Stationers’ Company, were time limited.14 The implications of the statute for the Stationers’ surveillance powers and their relationship to authors is the topic of some scholarly dispute. What appears to have been a definitive victory for authors and a recognition of individual author(ity) may have brought with it some unintended consequences. Prior to the passage of the statute, policing authors was an elaborate task that required cunning and guile. Jody Greene describes how Sir Robert L’Estrange, frustrated with the Stationers’ impotence
