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Copyright 2000 Bell & Howell Information and Learning
ABI/INFORM
Copyright 2000 Massachusetts Institute of Technology Alumni
Association Mar/
Technology Review
March, 2000 / April, 2000
Vol. 103, No. 2; Pg. 103-105; ISSN: 1099274X
2172 words
Digital land grab
by Henry Jenkins
HEADNOTE:
Media corporations are stealing our cultural heritage. Can we take it back?
ABSTRACT:
Not long ago, Fox's lawyers took down dozens of Buffy the Vampire Slayer
fan sites, and nobody even blinked because such saber rattling has become a
regular occurrence. Presumably, the right to free expression does not extend to
the right to participate in your culture.
Fans of artists and artistic works borrow characters, situations and themes
from pre-existing works and use them as resources for their own stories. The
modern-day scribblers are housewives, students, average students; their parodies
pay public tribute to popular narratives that capture their imagination. These
fans are also shock troops in a struggle that will define the digital age. Not
long ago, Fox's lawyers took down dozens of Buffy the Vampire Slayer fan
sites, and nobody even blinked because such saber rattling has become a regular
occurrence. Although cease-and-desist orders are routine corporate practice, not
a single case involving fan fiction has ever reached the courts. No
civil-liberties organization has stepped forward to offer pro bono
representation. Presumably, the right to free expression does not extend to the
right to participate in your culture. As currently understood, the First
Amendment protects media producers, but not media consumers. Media companies are
expanding their legal control over intellectual property as far and as wide as
possible, strip-mining the culture in the process.
BODY:
BETWEEN 1869 AND 1930, SOME 200 writers imitated, revised or parodied Lewis
Carroll's Alice in Wonderland. Some sent Carroll's plucky protagonist into other
imaginary lands; others sent different protagonists to encounter the Mad Hatter
or the Cheshire Cat. Some promoted conservative agendas, others advocated
feminism or socialism. Among Carroll's imitators were literary figures such as
Christina Rossetti, Frances Hodgson Burnett and E. Nesbit. Literary critic
Carolyn Sigler argues that Alice parodies contributed considerably to Carroll's
subsequent reputation. Today, after Shakespeare's work and the Bible, Lewis
Carroll's writings are the most often cited in the English-speaking world.
Now try a thought experiment. Imagine that the Wonderland stories were first
appearing in 2000 as products of Disney or Viacom, and Rossetti, Burnett and
Nesbit were publishing their parodies on the Internet. How long would it be
before they were shut down by "cease- and-desist" letters? How many people would
download "A New Alice in the Old Wonderland" before a studio flack asserted
Disney's exclusive control over Humpty Dumpty, The Cheshire Cat' or The Red
Queen'?
Rossetti's descendants, now called "fans," borrow characters, situations and
themes from pre-existing works (more often television series than novels) and
use them as resources for their own stories. Sometimes, such stories offer
ideological critiques. Other times, fans recenter the plots around secondary
characters or simply provide back story. These modern-day "scribblers" are
housewives, secretaries, librarians, students, average citizens; their parodies
are labors of love, paying public tribute to popular narratives that capture
their imagination.
These fans are also shock troops in a struggle that will define the digital
age. On the one hand, the past several decades have seen the introduction of new
media technologies (from the VCR to MP3) that empower consumers to archive,
annotate, appropriate and recirculate cultural materials. On the other, the
emergence of new economic and legal structures makes tight control over
intellectual property the basis for the cross-media exploitation of "branded"
materials. We can already see bloody skirmishes over intellectual property as
these two trends collide. Not long ago, Fox's lawyers took down dozens of
" Buffy the Vampire Slayer" fan sites, and nobody even blinked because such
saber rattling has become a regular occurrence.
A year or so ago, J. Michael Straczynski, executive producer of the cult
television series "Babylon 5," was speaking to the students in my science
fiction class at MIT. One student asked him what he thought about "fans," and
after a pause, he replied, "You mean, copyright infringers. " The remark was met
with nervous laughter and mutual misunderstanding.
So far, most discussions of intellectual property in cyberspace are
preoccupied with calming corporate anxieties about controlling the flow of
images and information. Technologists have touted new automated enforcement
mechanisms that allow owners to ferret out infringements, and digital watermarks
for tracing the precise origins of appropriated images. Yet we rarely ask
whether such tight regulation of intellectual property is in the public
interest. Who speaks for the fans? No one.
That doesn't mean they don't have a case. Indeed, there's much to be said on
the scribblers' behalf. Fan critics might be covered by the same "fair use"
protections that enable journalists or academics to critically assess media
content, or by recent Supreme Court decisions broadening the definition of
parody to include sampling. Fans don't profit from their borrowings, and they
clearly mark their sites as unofficial to avoid consumer confusion. Fan sites
don't diminish market value, often actively organizing -letter-writing campaigns
to keep floundering programs on the networks.
Sadly, none of this matters. If you are a housewife in Nebraska and you
receive a letter from Viacom's attorneys telling you to remove your Web site or
they will take away your house and your kid's college fund, you don't think
twice about your alternatives. You fold.
As a result, although cease- and-desist orders are routine corporate
practice, not a single case involving fan fiction has ever reached the courts.
No civil-liberties organization has stepped forward to offer pro bono
representation. Presumably, the right to free expression doesn't extend to the
right to participate in your culture. As currently understood, the First
Amendment protects media producers, but not media consumers. Copyright and
trademarks are legal "rights" granted to property owners, while fair use is a
"defense" which can only be asserted and adjudicated in response to infringement
charges. And most of the people being caught in these battles lack the financial
resources to take on a major corporation in court.
Disney, Fox and Viacom understand what's at stake here. The proliferating
media mergers attest to their recognition that media convergence transforms
intellectual property into solid gold. Viacom calls a television series like
"Star Trek" a franchise that can generate a seemingly infinite number of
derivative products and revenue streams in many media channels. What they can't
produce and market directly, they license to another company.
Preparing for this new era, media companies are expanding their legal control
over intellectual property as far and as wide as possible, strip-mining our
culture in the process. They have made inventive uses of trademark law to secure
exclusive rights to everything from Spock's pointy ears to Superman's cape,
pushed policies that erode the remaining protections for fair use, and lobbied
for an expansion of the duration of their copyright protection and thus
prevented works from falling into the public domain until they've been drained
of value. In the end, we all suffer a diminished right to quote and critique
core cultural materials. Imagine what our holiday season would look like if
Clement Moore had trademarked Santa Claus!
For most of human history, the storyteller was the inheritor and protector of
a shared cultural tradition. Homer took plots, characters, stories, well known
to his audiences, and retold them in particularly vivid terms; the basic
building blocks of his craft (plots, epithets, metaphors) were passed from one
generation to another. The great works of the western tradition were polished
like stones in a brook as they were handed off from bard to bard. This process
of circulation and retelling improved the fit between story and culture, making
these stories central to the way a people thought of themselves. King Arthur,
for example, first surfaces as a passing reference in early chronicles and only
over the course of several centuries of elaboration becomes complex enough to
serve as the basis for Le Morte DArthur.
Contemporary Web culture is the traditional folk process working at lightning
speed on a global scale. The difference is that our core myths now belong to
corporations, rather than the folk.
And that kind of exclusive ownership cuts directly against the grain of the
technology in question. From the start, computers were seen as tools of
collaboration, designed to facilitate brainstorming and data sharing. If one
follows the flow of ideas on a Web forum for more than a few posts, it becomes
harder and harder to separate one person's intellectual property from another's.
We quote freely, incorporating the original message into our own. When Netizens
discuss television, we quote equally freely, pulling chunks of aired material
into our posts, and adding our own speculations. Other people respond, add more
material, and pretty soon the series as viewed by list participants differs
radically from the series as aired. In other words, webbers approach television
content as "shareware.'
Still, what one originates, the law insists, one should have the right to
control and profit from. The legal fiction is that no one is harmed by this land
grab on the cultural commons. Tight control over intellectual property isn't
ultimately a question of author's rights, because without much discussion,
control has shifted from individual artists to media corporations-authors now
have little say over what happens to their creations. The corporate attorneys
rule.
If trademarks are used too broadly and without a history of legal
enforcement, companies will lose exclusive claims to them-so Coca-Cola sends out
spies to make sure nobody gets served a Pepsi when they order a Coke, Xerox
insists that we call a photocopy a photocopy and Fox scans the Web to make sure
nobody puts an "X-Files" logo on an unauthorized homepage. Attacking media
consumers damages relationships vital to the future of their cultural
franchises, but corporations see little choice, since turning a blind eye could
pave the way for competitors to exploit valuable properties.
Copyright law was originally understood as a balance between the need to
provide incentives to authors and the need to ensure the speedy circulation and
absorption of new ideas. Contemporary corporate culture has fundamentally
shifted that balance, placing all the muscle on one side of the equation. Media
companies certainly have the right to profit from their financial investments,
but what about the "investments"-emotional, spiritual, intellectual-we consumers
have made in our own culture? Through its "associates" program, the
online book dealer Amazon.com encourages amateur critics to build
book-oriented Web sites. If they link back to Amazon's homepage, they will get
profit points from every sale made to consumers who follow that link. Amazon has
discovered that revitalizing a grassroots book culture increases public demand
for books. Perhaps media producers should follow Amazon's example and find ways
to transform media consumers from "copyright infringers" into niche marketers,
active collaborators in the production of value from cultural materials.
Intellectual property law didn't matter much as long as amateur culture was
transmitted through subterranean channels, under the corporate radar, but the
Web brought it into view by providing a public arena for grassroots
storytelling. Suddenly, fan fiction is perceived as a direct threat to the media
conglomerates.
One can, of course, imagine that fans should create original works with no
relationship to previously circulating materials, but that would contradict
everything we know about human creativity and storytelling. In this new global
culture, the most powerful materials will be those that command worldwide
recognition, and for the foreseeable future, those materials will originate
within the mass media.
For the past century, mass media have displaced traditional folk practices
and replaced them with licensed products. When we recount our fantasies, they
often involve media celebrities or fictional characters. When we speak with our
friends, sitcom catchphrases and advertising jingles roll off our tongues. If we
are going to tell stories that reflect our cultural experiences, they will
borrow heavily from the material the media companies so aggressively marketed to
us. Let's face itmedia culture is our culture and, as such, has become an
important public resource, the reservoir out of which all future creativity will
arise. Given this situation, shouldn't we be concerned about the corporations
that keep "infringing" on our cultural wellspring?
Join Henry Jenkins and TR readers to discuss IP at www.techreview.com/forums.