[Infowarrior] - When love is harder to show than hate

[Richard Forno]

When love is harder to show than hate

Copyright law is set up to protect critics, while leaving fans of  
creative works out in the cold

http://www.guardian.co.uk/technology/2009/may/13/cory-doctorow-copyright

When a group of fans of the Dune books received a copyright threat  
from the estate of Frank Herbert, they took the path of least  
resistance: they renamed and altered their re-creation of the novel's  
setting – a loving tribute created inside the virtual world of Second  
Life – so that it was no longer so recognisable as an homage to  
Herbert's classic science fiction novels.

The normal thing to do here is to rail at the stupidity of the Herbert  
estate in attacking these fans. After all, they weren't taking money  
out of the pockets of the estate, the chance of trademark dilution in  
this case is infinitesimal, the creators were celebrating and  
spreading their love for the series, they are assuredly all major fans  
and customers for the products the estate is trying to market, their  
little Second Life re-creation was obscure and unimportant to all but  
its users, and the estate's legal resources could surely be better  
used in finding new ways to make money than in finding new ways to  
alienate its best customers.

But that's not what this column is about. What I want to ask is, how  
did we end up with a copyright law that only protects critics, while  
leaving fans out in the cold?

Some background: copyright's regulatory contours allow for many kinds  
of use without permission from the copyright holder. For example, if  
you're writing a critical review of a book, copyright allows you to  
include quotations from the book for the purpose of criticism. Giving  
authors the right to choose which critics are allowed to make their  
points with quotes from the original work is obvious bad policy. It's  
a thick-skinned author indeed who'd arm his most devastating critics  
with the whips they need to score him. The courts have historically  
afforded similar latitude to parodists, on much the same basis: if  
you're engaged in the parodical mockery of a work, it's a little much  
to expect that the work's author will give her blessing to your efforts.

The upshot of this is that you're on much more solid ground if you  
want to quote or otherwise reference a work for the purposes of  
rubbishing it than if you are doing so to celebrate it. This is one of  
the most perverse elements of copyright law: the reality that loving  
something doesn't confer any right to make it a part of your creative  
life.

The damage here is twofold: first, this privileges creativity that  
knocks things down over things that build things up. The privilege is  
real: in the 21st century, we all rely on many intermediaries for the  
publication of our works, whether it's YouTube, a university web  
server, or a traditional publisher or film company. When faced with  
legal threats arising from our work, these entities know that they've  
got a much stronger case if the work in question is critical than if  
it is celebratory. In the digital era, our creations have a much  
better chance of surviving the internet's normal background radiation  
of legal threats if you leave the adulation out and focus on the  
criticism. This is a selective force in the internet's media ecology:  
if you want to start a company that lets users remix TV shows, you'll  
find it easier to raise capital if the focus is on taking the piss  
rather than glorifying the programmes.

Second, this perverse system acts as a censor of genuine upwellings of  
creativity that are worthy in their own right, merely because they are  
inspired by another work. It's in the nature of beloved works that  
they become ingrained in our thinking, become part of our creative  
shorthand, and become part of our visual vocabulary. It's no surprise,  
then, that audiences are moved to animate the characters that have  
taken up residence in their heads after reading our books and seeing  
our movies. The celebrated American science-fiction writer Steven  
Brust produced a fantastic, full-length novel, My Own Kind of Freedom,  
inspired by the television show Firefly. Brust didn't – and probably  
can't – receive any money for this work, but he wrote it anyway,  
because, he says, "I couldn't help myself".

Brust circulated his book for free and was lucky enough that Joss  
Whedon, Firefly's creator, didn't see fit to bring legal action  
against him.

But if he had been sued, Brust would have been on much stronger  
grounds if his novel had been a savage parody that undermined  
everything Whedon had made in Firefly. The fact that Brust wrote his  
book because he loved Whedon's work would have been a mark against him  
in court.

This isn't a plea for unlimited licence to commercially exploit the  
creations of others. It's fitting that commercial interests who plan  
on making new works from yours seek your permission under the  
appropriate circumstances. Nor is this a plea to eliminate the vital  
aid to free expression that we find in copyright exceptions that  
protect criticism.

Rather, it's a vision of copyright that says that fannish celebration  
– the noncommercial, cultural realm of expression and creativity that  
has always accompanied commercial art, but only lately attained easy  
visibility thanks to the internet – should get protection, too. That  
once an artist has put their works in our head, made them part of our  
lives, we should be able to live those lives.