On a more doctrinal level, respecting creativity as a human force should lead us to think differently about fair use, among other things, by encouraging us to take account of noncommercial motivations even in contexts current doctrine sees as commercial. Joanna Russ, the feminist science fiction writer, suggested that the“what if” of slash fanfiction was “what if I were free?” What would I read, what would I write, what relationships would I have with the external world and with other people? Asking “what if I were free”is very different from the claim-staking of the rhetoric of opensource software, which focuses on the idea that open-source software is “free as in free speech, not as in free beer.” That common phrase has always struck me as hiding within it many unexamined and problematic assumptions about what free is with respect to speech and how it relates to a commercial marketplace. What free is with respect to women’s voices, of course, has been fiercely debated at least since John Stuart Mill (and his wife) wrote The Subjection of Women. Slash and other fanworks come from a background of constraint, where acting as if we were free to write our own versions is a different kind of act than using our already-extant freedom to create open-source software instead of proprietary code. Women as writers have rarely had the luxury of exclusive control to give away.
One aspect of that unfreedom has been an inability to participate in the money economy on the same terms as men. Fanworks represent an alternative outlet for creative energies.
Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions http://ift.tt/1dL4BAw