When Love Is Harder To Show Than Hate

Cory Doctorow writes in the Guardian: When a group of fans of the Dune books received a copyright threat from the estate of Frank Herbert, they took the path of least resistance: they renamed and altered their re-creation of the novel’s setting — a loving tribute created inside the virtual world of Second Life — so that it was no longer so recognisable as an homage to Herbert’s classic science fiction novels.

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The normal thing to do here is to rail at the stupidity of the Herbert estate in attacking these fans. After all, they 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.

But that’s not what this column is about. What I want to ask is, how did we end up with a copyright law that only protects critics, while leaving fans out in the cold?

Some background: copyright’s regulatory contours allow for many kinds of use without permission from the copyright holder. For example, if you’re writing a critical review of a book, copyright allows you to include quotations from the book for the purpose of criticism. Giving authors the right to choose which critics are allowed to make their points with quotes from the original work is obvious bad policy. It’s a thick-skinned author indeed who’d arm his most devastating critics with the whips they need to score him. The courts have historically afforded similar latitude to parodists, on much the same basis: if you’re engaged in the parodical mockery of a work, it’s a little much to expect that the work’s author will give her blessing to your efforts.

The upshot of this is that you’re on much more solid ground if you want to quote or otherwise reference a work for the purposes of rubbishing it than if you are doing so to celebrate it. This is one of the most perverse elements of copyright law: the reality that loving something doesn’t confer any right to make it a part of your creative life.

The damage here is twofold: first, this privileges creativity that knocks things down over things that build things up. The privilege is real: in the 21st century, we all rely on many intermediaries for the publication of our works, whether it’s YouTube, a university web server, or a traditional publisher or film company. When faced with legal threats arising from our work, these entities know that they’ve got a much stronger case if the work in question is critical than if it is celebratory. In the digital era, our creations have a much better chance of surviving the internet’s normal background radiation of legal threats if you leave the adulation out and focus on the criticism. This is a selective force in the internet’s media ecology: if you want to start a company that lets users remix TV shows, you’ll find it easier to raise capital if the focus is on taking the piss rather than glorifying the programmes.