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[META] Living in a Den of Thieves (Notes Towards a Post on Big Content)

Two weeks ago, in the wake of the hacker collective Anonymous shutting down U.S. government and Big Content websites in avowed revenge for the U.S. Attorney General’s taking down the upload service MegaUpload, I asked my Twitter followers (only half in jest) whether I would one day be writing an article about the Internet War of 2012. The consensus was “Quite possibly!” but even a cursory glance over the last two weeks or so of events around the Internet and the public domain reveal that the conflict between those who are advocating for more open laws and formats around content, and those who want to lock content down and throw away the key on “pirates,” is about more than one upload service, or even more than one frighteningly broad piece of “anti-online piracy” legislation (and no, that link isn’t talking about SOPA/PIPA).

Fandom intersects with all of these events in a number of large and complex ways, and as a global phenomenon, it’s no surprise that fans in different parts of the world have had different reactions to various recent developments. Just among my digital acquaintances, reactions to MegaUpload, for instance, have ranged from the general sentiment that its operators’ alleged violations were so flagrant that they deserved to be indicted, to noting the detrimental effect the demise of file-sharing sites has on emerging economies in particular, since people working in emerging economies literally cannot afford to legitimately buy the media that Big Content sells.

The rise of “intellectual property” rights over the past century or so is part and parcel of the neoliberalization first of so-called advanced industrial societies, and then the rest of the world; the shredding of social safety nets globally; the commercialization of scholarship and the reduction of the value of all knowledge to the price it is projected to fetch in the so-called “free market”; the patent-ization of scientific research part and parcel with increased corporate profiteering therefrom. IPR are used systematically to disenfranchise and disempower vulnerable groups at all levels of societies globally, and then, the disenfranchisement complete, to sell that content back to those groups at immense profit–but only at fair market price, of course.

As a historian, I’m painfully aware that today’s current, very stringent global intellectual property regime is very much a recent and contingent phenomenon, and as a classicist and a fan, I was particularly dismayed to see the U.S. Supreme Court rule in favor of copyright maximalists in Golan v. Holder, finding that works could be legally re-copyrighted and removed from the public domain. It would be foolish, as a historian, to claim that fandom predates the age of mechanical reproduction and the rise of seriality in storytelling, but one doesn’t have to be much of a literature scholar to see that creativity doesn’t exist in a vacuum, and that creative works have always been inspired by one another. If Vergil had had to pay money to Homer’s estate to use characters from The Illiad, there probably would have been no Aeneid, and that loss wouldn’t just have diminished ancient Greek and Latin poetry.

I mentioned my work for the Organization for Transformative Works to a mutual acquaintance (the business manager of a well-known fantasy author) recently, and it was almost comical how my interlocutor’s defenses rose the instant I uttered the words “fair use.” I understand, and absolutely support, the desire and right of creators to make money from their own creative works, but one of the things that I think tends to get lost in these discussions is the fact that overall creators aren’t being very well served by Big Content. In the first place it’s a myth, as someone on my Twitter feed observed, that content is only created by “professionals”; and in the second place, Big Content is not in the business of giving creators money: as an industry, it’s in the business of making money for itself. Advocates for SOPA/PIPA and ACTA like to position themselves as defending the rights of creators, but the current intellectual property regime is set up to favor corporations. Furthermore, the global scope of that regime, and the way in which restrictive additions in one part of the world tend to be taken up by the rest of its participants (Golan v. Holder was held up as an instance of bringing U.S. law into line with global practice, and actions in the MegaUpload case were taken as far away from the States as Hong Kong and New Zealand) only increase the margin of that favorability.

Fandom, to try to knit the two halves of this post into a coherent union, is very much somewhere in the vast creative territory between outright plagiarism–which no one, I think, would support or condone–and the avowed creative debt of explicit borrowing and that position has only become more difficult to maintain in recent years. The OTW’s work to extend the Digital Millennium Copyright Act exemption for vidding that we won in 2010 is an excellent example of how difficult it is to carve out a legal space for fair use fan practices even under current law (I invite you to sign the petition to uphold the right to create remix videos before February 10, 2012, cosponsored by the Electronic Frontier Foundation). I’m proud of the OTW’s past and continuing work in this area, but the events of the past fortnight are more than sufficient proof that the battlefield is anything but stagnant, and vigilance remains the price of the very limited liberties we now possess.