Of Fandom and Copyright

[chrystalline]

After I came back from DragonCon and started corresponding with the lawyer I met there, I realized I didn’t understand enough about copyright to properly discuss some of the things I wanted to discuss, so I decided I should fully read the book I got at SIGGRAPH back in 2003 – Digital Copyright by Jessica Litman. I’d only skimmed it before. I didn’t expect to really get into it, but she writes in a very conversational style, and the issue is one that interests me very much. Before I knew it, I had half the book marked with random slips of paper and old mailing envelopes – whatever was close to hand. I have written before about what I think should be done to solve the “fanfic violates copyright, and if we try to make money on it TPTB will come down on us” problem. I seem to recall that during that incident, someone posted a comment that “George Lucas is going to eat your face,” which was so amusing that someone on F_W immortalized it in icon form. But that’s neither here nor there.

Still, it reflects part of the problem. Fanwriters and fanartists and fanfilmmakers exist on the knife-edge of legality, in which most of the major IP holders would argue that the fanworks violate copyright, but the bad publicity, low average financial worth of the fans (when you factor in the no-income teenagers with the make-just-enough-to-get-by adults, the few truly rich fans are a negligible element, especially compared to corporate litigation), and cost of litigation makes it unprofitable to pursue. Thus, at the moment, there is no case-law precedent for or against non-commercial fanworks.

Most fans don’t want to end up in court, so in the rarer cases when an IP holder decides to make an issue of it, the fans will generally cave. However, most fans will also then go deeper into the shadows and continue their behavior in a less-identifiable manner. Rumor has it that Anne Rice has viciously pursued her own fans, not through legal channels, but by stalking and harassing them at their homes and workplaces. The fans responded by pulling down anything that could be traced back to them, and fanfiction based on Rice’s books generally gets posted on free hosts registered under free email addresses and may even be set up through a web proxy, so as to protect the poster from being traced by IP address. Combined with her very public Amazon.com meltdown, this has given Rice a very bad reputation in internet fandom.

Rice is an extreme example, but the web is full of less-drastic examples of the same thing. When major players in the IP industry bring their forces to bear, the fans either abandon the IP altogether, depriving it of paying customers, or they go underground, hiding behind pseudonyms and proxies.

All of this to say, I think copyright law is in dire need of reform, and fans need to educate themselves on the matter so as to be better able to stand up for themselves. Toward that end, I highly recommend Litman’s book; she has an excellent writing style, she’s consumer-friendly, and as a law professor, she understands how to teach these concepts that so baffle the majority of those who attempt to master them.

The copyright code is convoluted and rigid, designed to favor the existing powers at the expense of the newcomers. In the internet age, that means us.

She covers the history of copyright, specifically focused on US copyright history, and explains why reform will not come about if Congress is left to handle it as it has done for the past centuries. Congress doesn’t understand the technology, and so is perfectly willing to let the involved players duke it out in private negotiations, except in cases when a lobbyist provides a particularly good donation – then they’ll step in and make sure things turn out the way that player wants, as much as possible. All in all, it’s not good for us little guys, and Congress is supposed to be our advocate in the realm of legislation.

I favor her suggested model for reform, which is based largely on the public’s common perception of what copyright already is supposed to be: commercial use is infringement unless it’s licensed, and non-commercial use is protected unless it seriously interferes with the creator’s ability to pursue the business. This is what most ordinary people think copyright is, but Litman explains in her book that the actual legal code is neither that simple nor that forgiving. According to the copyright law, very little of what people do is actually considered Fair Use, and with the DMCA in place, even what is valid under Fair Use becomes illegal, because the producers and manufacturers have made it impossible to exercise most of your Fair Use rights without violating the DMCA prohibition of breaking copy protection schemes.

In the short term, I foresee complicated negotiations with copyright holders. In the long run, I hope the citizenry can be motivated sufficiently to demand their representatives in Congress do something about this problem. For my part, I plan to keep learning about this issue and looking for other like-minded individuals who will help me find a useful role in bringing about actual reform.

Originally published at Chrystalline. You can comment here or there.