Digital Land Grab

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 D’Arthur.

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 it-media 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?