Copyright Vs. Fandom

Cory Doctorow just posted a really interesting article for Digital Rights, Digital Wrongs (the DRM blog he writes for the Guardian), focused on the following question:

[H]ow did we end up with a copyright law that only protects critics, while leaving fans out in the cold?

His point is that copyright law, and fair use provisions in particular, favor critical derivative works over appreciative ones. For example

At first glace, it seems clear why critical works should require more protection. After all, one would assume that a creator would have more incentive to prevent criticism. But the current atmosphere regarding intellectual property – Big Media’s state of siege mentality in the face of omnipresent P2P technologies and user-generated content – leads copyright holders to stamp out any unauthorized use on sight.

One of the most counterintuitive and ultimately troubling aspects of this outlook on creative work is the fact that copyright holders are pursuing legal action against fan-produced derivative works even if they have negligable, or even positive impact on the market for the original creation (i.e., the market which is ostensibly the justification to have copyright laws around in the first place). Doctorow uses the example of a Second Life tribute to the world of Dune, which was recently issued a C&D by the estate of Dune’s author, Frank Herbert. In this case, he points out, there seem to be a proliferation of reasons why the estate would have wanted to promote, or at the very least not prevent this derivative work:

[The Second Lifers] 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.

In other words, we aren’t even talking about a conflict between two value system (commercial and community) here, because shutting down the Second Life Dune community doesn’t serve anybody’s interests in either context. The only way in which this action makes any sense is though the lens of legal precendent. If there is any instance of unauthorized Dune use floating around in the universe, then you could imagine that it’s existance could provide other content-generating users an argument for why they too should be allowed to produce their Dune T-shirts or fan fiction or whatever, and the estate looses all control over the brand.

On this slippery legal slope, the actual content being protected and the relationship between that content and its audience are entirely irrelevant. Dune becomes a generic intellectual commodity, alientated from its existing fan base in emotional terms, but also from its potential future fans in basic marketing terms (in the sense that the Second Life community serves as free marketing for the brand while publicity of its forcible dissolution may create distaste among those who would consider buying into the brand). And indeed, this conflict is not even between Herbert and the Second Lifers. Rather, there are at least two official intermediaries involved in this relationship: the C&D was issued by the Trident Media Group*, who represent the estate of Frank Herbert, who passed away more than 20 years ago.

Using this example, it may be necessary to restructure our former conflict (or dialectic?) between community and commercial value systems to include this third value system – perhaps “branding value” – which may purport to serve the commercial interests of the copyright holder, but which ultimately fails to serve the commercial or community interests of anybody at all.

*On a sidenote, Trident’s website design provides a telling glimpse into their relationship with the world of 21st century digital content generation: total denial. Nice clip art, though!

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