Text version of the Primer is never acceptable in and of itself

From the Quicksilver Metaweb.

Between 1869 and 1930, more than two hundred writers imitated, revised or parodied Lewis Carroll's Alice in Wonderland. Some sent Carroll's plucky protagonist into other imaginary lands; others sent different protagonists to encounter the Mad Hatter, the Cheshire Cat, and the Red Queen. Some promoted more conservative agendas, while others advocated feminism or socialism. Among Carroll's imitators were significant literary figures such as Christina Rossetti, [[Frances Hodgson Burnett]], and [E. Nesbit]. Literary critic Carolyn Sigler argues that this process of appropriation and rewriting built Alice's literary reputation. Today, after Shakespeare and the Bible, Lewis Carroll is the most oft cited writer in the English-speaking world.

While Carroll was occasionally annoyed that others were profiting from his literary creations, he also saw such works as a form of tribute, a marker of his cultural impact. After all, Carroll had taken many of his characters from Mother Goose Rhymes and had himself mimicked and spoofed various primers and manners books. Such parodic appropriations were still commonplace, despite the fact that the Romantic ideal of the "expressive individual" was already being codified into law. Carroll defined his creativity less through original invention than through his clever reworking of the shared cultural reservoir. Alice in Wonderland was part of an ongoing dialog and no one assumed that intellectual property law could be deployed to silence subsequent writers.

Now try a thought experiment. Imagine that the Wonderland stories were first appearing as the product of Disney, Viacom, or some other contemporary media company. How long would it be before Ms. Rossetti, Burnett, or Nesbit were shut down with cease and desist letters? How many people would download "A New Alice in the Old Wonderland" before a studio flack asserted Disney's exclusive control over Alice TM (EEDDDIDOTTIR), The Cheshire Cat TM (EEDDDIDOTTIR), or the Mad Hatter TM (EEDDDITHORA)?

I must confess. This is more than a hypothetical question. Rossetti's later day descendants are still seeking inspiration from popular fiction (though now they are more apt to rewrite television programs than books). In fact, in the digital age, such parodies reach a global readership unimagined by the Victorians. One fan website indexes original stories centering on more than 120 different television series, films, books, and comic books, ranging from Jane Austin to Dawson's Creek.

Like Rossetti and company, these contemporary parodists, now called "fans," borrow characters, situations, and themes from pre-existing works and use them as resources for their own stories. Sometimes, such stories offer pointed ideological critiques of the original works. Other times, fans re-center the plots around secondary characters or simply provide back story. These modern-day "scribblers" are housewives, secretaries, librarians, students, average citizens who write as a [[labor of love]], paying tribute to popular [[narratives that have captured their imagination]], sharing what they create with a "virtual" community of readers who share their passions.

Feminist critic Nina Auerback suggests that the nineteenth century women who rewrote Alice and other literary works encouraged sought to liberate their female [[characters from "the single set]] of circumstances in which author and audience imagined [them.]" The ability to contrast the "New Alice," as one author called her protagonist, with the old powerfully demonstrated feminist critiques of gender relations. A contemporary fan writer expresses a similar impulse: "What I love about fandom is the freedom we have allowed ourselves to create and recreate our characters over and over again. Fanfic rarely sits still. It's like a living, evolving thing, taking on its own life, one story building on another, each writer's reality bouncing off another's and maybe even melding together to form a whole new creation....I find that fandom can be extremely creative because we have the ability to keep changing our characters and giving them a [[new life over and over]]. We can kill and resurrect them as often as we like. We can change their personalities and how they react to situations.... We can give them an infinite, always-changing life rather than the single life of their original creation." Note, of course, that the rights she discusses are moral rights she and other fan writers have "allowed" themselves, not legal rights granted by corporate property holders.

Though preserving a long-standing literary practice, these fan writers are the shock troupes in one of the central struggles that will define the future of digital media. On the one hand, the past two decades have seen the introduction of a broad range of new media technologies (from the VCR and the photocopier to MP3) which empower consumers to archive, annotate, appropriate, and recirculate cultural materials. Such technologies have been introduced amid a pervasive rhetoric of democratic participation and interactive storytelling. On the other, the past two decades have witnessed the emergence of economic and legal structures designed to insure tight control over intellectual property as the basis for the cross-media [[exploitation of "branded" materials]]. The current buzz about media convergence temporarily masks the tensions between these two visions for the future of American media, but these contradictions will soon result in bloody struggles over intellectual property. The other week, Fox's lawyers took down dozens of Buffy the Vampire Slayer fansites, and nobody even BLINKed because such [[saber-rattling has become a regular occurrence in cyberspace]].

A year or so ago, J. Michael Straczinski, the executive producer of the cult television series, Babylon 5, was speaking to the students in my science fiction class at MIT. One student asked him what he thought about "fans," and after a pause, he replied, "You mean, copyright infringers." The remark was met with nervous laughter but it was clear that Strazinski and the student had radically different world views.

So far, most discussions of intellectual property in cyberspace has sought to calm fears of a loss of control over the flow of ideas, images, and information. Technologists have touted new automated enforcement mechanisms that allow owners to ferret out infringements or digital watermarks that can determine the precise origins of an appropriated image. Yet there has been surprisingly little discussion over whether such tight regulation of intellectual property is, in fact, in the public interest. Who speaks for the "scribblers" in these debates? [[Seemingly no one]].

Lawyers may disagree about whether fan stories fall under fair use, whether they gain any protection from recent Supreme Court decisions broadening the definition of parody to include various forms of sampling. None of this matters! Fans don't profit from their use of borrowed intellectual property; they clearly mark their sites as unofficial to avoid any risk of consumer confusion. Who cares! The fan sites can hardly be said to diminish public interest in the series often actively organizing letter-writing campaigns to keep floundering programs on the networks. Big deal! Fan websites constitute forms of cultural criticism and political speech. So what!

If you are a housewife in Nebraska and you receive a letter from Viacom's attorneys telling you to remove your website or they will take away your house and your kid's college fund, you don't think twice. You fold. Computer activists reassure us that it is impossible to police the web, that sites which are taken down will spring up tomorrow from another location, but when you're the one in the cross hairs, you BLINK.

Not a single case involving fan fiction has ever reached the courts. Not a single civil liberties organization has stepped forward to offer protection to fans who have posted their original fiction on the web. Presumably, the right to free expression doesn't extend to the right to participate in your culture. As currently understood, the First Amendment protects media producers, but not media consumers, even though digital media subtly erases the line between the two. Copyright and trademarks are legal "rights" granted to property owners, while "fair use" is a defense which can only be asserted and adjudicated once you have been brought forward on infringement charges. And most of the people being caught in these battles simply lack the financial resources to take on a major corporation in court.

Disney, Fox, and Viacom certainly understand what's at stake here. The extraordinary number of media mergers over the past decade attests to their recognition that media convergence will turn intellectual property into solid gold. Viacom speaks of a television series like Star Trek as a franchise, one that can generate a [[seemingly [[infinite number]] of derivative products]] and create revenue streams across many different media channels. What they can't produce and market directly, they will license to another company and reap royalties.

Preparing for this new era, media companies aim to expand their legal control over intellectual property as far and as wide as they possibly can, strip-mining our culture in the process. They have made inventive uses of trademark law to secure their exclusive rights to everything from Spock's pointy ears to "Beam Me Up, Scotty," from the transporter's hum to the Klingon home planet. They have lobbied congress to erode away the remaining protections for fair use. They have expanded the duration of their copyright protection and thus prevented works from falling into the public domain until they have been drained of all possible value. They are seeking to rewrite policies surrounding the issuing of desirable domain names to block them from falling into the hands of the wrong sort. They have exerted legal claims that extend far beyond any rational interpretation of the law, counting on everyday citizens to fold before their mighty roar, and for the most part, they do. Fans are simply one group who are feeling the impact of this expansive new understanding of intellectual property rights; their impact on academic life would require another whole essay. In the end, we all will suffer a diminished right to quote, critique, and reference core cultural materials. Imagine what our holiday season would look like if Thomas Nash had trademarked Santa Claus!

Our current conception of "intellectual property" represents a local aberration in the history of human creativity. The model of authorship that underlies modern intellectual property law is an artifact of the Romantic era and the notion of the inspired individual, standing apart from his culture, creating new works sui generis. What one originates, the law insists, one should have the right to control and profit from. We call it intellectual property, but that's something of a distraction. Unlike real estate developers, authors don't have to negotiate with previous landowners for access to their new territory. Never mind that this represents a totally bogus theory of cultural creation or that over time, this ideal of the expressive individual has devolved, without much fanfare, into a corporate right to control media products. The legal fiction is that no one is harmed by their land grab on the cultural commons.

Contrary to the usual way we discuss this issue, it isn't ultimately a question of author's rights. Many authors and artists would prefer to see their works reintegrated into the culture and to be able to draw openly on their tradition. But, corporate attorneys want to protect their trademarks from being diluted. Everyone remembers what happen to Scotch Tape when they allowed their brand name to be used generically. So, Coca-Cola sends out spies to make sure nobody gets served a Pepsi when they order a Coke, Xerox insists that we call a photocopy a photocopy, and Fox scans the web to make sure nobody puts a X-Files logo on an unauthorized homepage. They know that in attacking the consumers of their products, they are damaging relationships that will be vital to the future of their cultural franchises, but they see little choice as long as turning a blind eye to "infringement" could pave the way for corporate competitors to exploit their valuable properties. In the long haul, such policies will result in cultural stagnation, as images and stories lose their ability to accrue deeper cultural significance over time.

For most of human history, the storyteller, the bard, the griot, was thought to be the inheritor and protector of a shared cultural tradition. Homer took plots, characters, stories, well known to his audiences and retold them in particular vivid terms; the basic building blocks of his craft (phrases, epithets, metaphors), were passed from one generation to another. Homer and Aesop were probably composite figures, archetypes for this process of shared authorship and collaborative storytelling, the names modern readers attach to the reservoir of cultural materials that constituted the ancient world. The great works of the western tradition were polished like stones in a brook as they were handed off from bard to bard. This process of circulation and retelling intensified their fit with the culture, making them absolutely central to the way a people thought of themselves. A mythic figure like King Arthur, for example, first surfaces as a passing reference in some of the chronicles of the early Kings of England and over several centuries of elaboration forms the basis for magnificent works like Morte D'Arthur or later, for A Connecticut Yankee in King Arthur's Court.

Contemporary web culture would seem, in many ways, to be a continuation of these folk practices. The difference is that our core myths and stories now belong to corporations, rather than the folk.

From the start, computers were seen as tools of collaboration, designed to facilitate brainstorming and data-sharing. If one follows the flow of ideas on a net discussion list for more than a few posts, it becomes harder and harder to separate one person's intellectual property from another's. We quote freely, incorporating part of the original message into our own, for the purposes of conversation, commentary and critique or simply so we can make snitty little comments about another poster's spelling errors. When netizens discuss television, we quote equally freely, pulling whole lines and speeches from the aired material into our posts, and adding our own speculations about what it all means or what's going to happen next. Other people respond, add more material, and pretty soon the series as viewed by [[members of the list]] differs radically from the series as understood by its producers. The net is the traditional folk process working at lighting fast speed on a global scale. If real world events once turned into legends over decades, this same mythologizing process now takes place in an afternoon.

One of my favorite websites allows parents to scan their children's art works into the computer and post them on a digital refrigerator door. Maybe, that's the best metaphor for the web -- a digital refrigerator door for amateur artists to share what they've made. Many have celebrated the grassroots creativity unleashed by the digital revolution. Indeed, there are new tools -- Photoshop, digital sampling, and so forth -- which are enabling new forms of folk culture to emerge. Yet, the web's real contribution has been to create a channel of distribution for forms of cultural production that would otherwise lie unread in our desk drawer. Student filmmakers have always made home movies, but now we have d.cinema or i.film festivals that allow such works to be seen by the multitudes and since the success of [[The Blair Witch Project]], some gifted amateurs are fielding offers from major studios.

Enthusiasts are looking at all of this creativity and claiming that the web has significantly lowered the barriers of entry to the cultural marketplace, bringing us much closer to the free marketplace of ideas that our founding fathers envisioned. The webmasters are the modern pamphleteers, we are told, forging a revolution in thought and expression. If such a world really exists, sign me on. However, such utopian proclamations are being made too hastily -- as long as the trend is towards tightening corporate control over intellectual property rather than a recognition that the right to free expression must include a recognition of our collective right to participate within and make use of the core materials of our culture. After all, many of the original pamphleteers masked their identities behind names drawn from Greek mythology; the Federalist Papers were published under a user name, and in today's intellectual marketplace, Hamilton, Madison, and Jay would be classified as "infringers."

Copyright law was originally understood as a balance between the need to provide incentives to authors and the need to insure the speedy circulation and cultural absorption of new ideas and insights. The new corporate culture has fundamentally shifted that balance, placing all the muscle on [[one side of the equation]]. The emerging practices of the web call into question the viability of our current legal fictions about culture originating through the autonomous actions of expressive individuals. We need to be thinking now about how to create new mechanisms which defend the idea of the cultural commons against persistent trends towards privatization and protectionism.

One can, of course, imagine that all of these new web "scribblers" will create original works that have no relationship to previously circulating materials and in the process, a more participatory culture would displace broadcast media altogether, but that would contradict everything literary history might teach us about how human creativity operates. Authors have elaborated upon what has come before. In this new cultural economy, the most powerful materials will be those that command recognition around the globe and for the foreseeable future, those materials will originate within the mass media.

Media companies certainly have the right to profit from the investments they have made in our culture, but perhaps, they need to develop new models of how rents can be extracted from intellectual properties. The on-line book dealer, Amazon, for example, has helped to foster amateur discussions of books, creating an associates program which enabled web critics to get profit points from linking back to their corporate homepage. Amazon has discovered that building the basis for a new book culture helps, in the long run, to increase public awareness of and demand for books. Perhaps, media producers need to follow Amazon's example and find ways to transform media consumers from "copyright infringers" into niche marketers, active collaborators in the production of value from cultural materials, worthy "associates" helping to define the place of popular culture in an age of media convergence.

For the past century, mass media has displaced traditional folk practices, has appropriated figures from folklore and displaced them with trademarked characters. Today, when we envision the Mad Hatter, we think not of a literary figure in the public domain but a cartoon character which Disney still licenses. Mass media has brought its stories into our homes and into our hearts. Contemporary mass media provides the central frame of cultural reference for our conversations and our fantasies. When we tell our own stories, they often involve encounters with media celebrities. When we recount our fantasies, they often involve fictional characters from our favorite films or television shows. When we start to speak with our friends, [[catch phrases]] from contemporary sitcoms and commercials roll off our tongues, much as Shakespeare and the Bible fell easily to the lips of an earlier generation. Let's face it -- media culture is our culture, and if we are going to use the resources of the web to tell stories that reflect our cultural experiences, we should anticipate that many of them will borrow heavily from the materials they have so aggressively marketed to us. As Jean Jambon, one of Carroll's 19th century imitators, explained, "It may be thought that in introducing a certain little lady ALICEnce has been taken. But royal personages are public property."