Some thoughts on Julie Cohen’s new book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice

Cross-posted at Concurring Opinions for a symposium on Julie Cohen’s important new book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press 2012).

Julie Cohen’s book is fantastic. Unfortunately, I am late to join the symposium, but it has been a pleasure playing catch up with the previous posts. Reading over the exchanges thus far has been a treat and a learning experience. Like Ian Kerr, I felt myself reflecting on my own commitments and scholarship. This is really one of the great virtues of the book. To prepare to write something for the blog symposium, I reread portions of the book a second time; maybe a third time, since I have read many of the law review articles upon which the book is based. And frankly, each time I read Julie’s scholarship I am forced to think deeply about my own methodology, commitments, theoretical orientation, and myopias. Julie’s critical analysis of legal and policy scholarship, debate, and rhetoric is unyielding as it cuts to the core commitments and often unstated assumptions that I (we) take for granted.

I share many of the same concerns as Julie about information law and policy (and I reach similar prescriptions too), and yet I approach them from a very different perspective, one that is heavily influenced by economics. Reading her book challenged me to confront my own perspective critically. Do I share the commitments and methodological infirmities of the neoliberal economists she lambasts? Upon reflection, I don’t think so. The reason is that not all of economics boils down to reductionist models that aim to tally up quantifiable costs and benefits. I agree wholeheartedly with Julie that economic models of copyright (or creativity, innovation, or privacy) that purport to accurately sum up relevant benefits and costs and fully capture the complexity of cultural practices are inevitably, fundamentally flawed and that uncritical reliance on such models to formulate policy is distorting and biased toward seemless micromanagement and control. As she argues in her book, reliance on such models “focuses on what is known (or assumed) about benefits and costs, [and] tends to crowd out the unknown and unpredictable, with the result that play remains a peripheral consideration, when it should be central.” Interestingly, I make nearly the same argument in my book, although my argument is grounded in economic theory and my focus is on user activities that generate public and social goods. I need to think more about the connections between her concept of play and the user activities I examine. But a key shared concept is that indeterminacy in the environment and the structure of rights and affordances sustains user capabilities and this is (might be) normatively attractive whether or not users choose to exercise the capabilities. That is, there is social (option) value is sustaining flexibility and uncertainty.

Like Julie, I have been drawn to the Capabilities Approach (CA). It provides a normatively appealing framework for thinking about what matters in information policy — that is, for articulating ends. But it seems to pay insufficient attention to the means. I have done some limited work on the CA and information policy and hope to do more in the future. Julie has provided an incredible roadmap. In chapter 9, The Structural Conditions of Human Flourishing, she goes beyond the identification of capabilities to prioritize and examines the means for enabling capabilities. In my view, this is a major contribution. Specifically, she discusses three structural conditions for human flourishing: (1) access to knowledge, (2) operational transparency, and (3) semantic discontinuity to be a major contribution. I don’t have much to say about the access to knowledge and operational transparency discussions, other than “yep.” The semantic discontinuity discussion left me wanting more, more explanation of the concept and more explanation of how to operationalize it. I wanted more because I think it is spot on. Paul and others have already discussed this, so I will not repeat what they’ve said. But, riffing off of Paul’s post, I wonder whether it is a mistake to conceptualize semantic discontinuity as “gaps” and ask privacy, copyright, and other laws to widen the gaps. I wonder whether the “space” of semantic discontinuities is better conceptualized as the default or background environment rather than the exceptional “gap.” Maybe this depends on the context or legal structure, but I think the relevant semantic discontinuities where play flourishes, our everyday social and cultural experiences, are and should be the norm. (Is the public domain merely a gap in copyright law? Or is copyright law a gap in the public domain?) Baselines matter. If the gap metaphor is still appealing, perhaps it would be better to describe them as gulfs.

Fair Use Meets Reciprocal License: Who Wins?

Close chillOver on Concurring Opinions, Dave Hoffman has an interesting post concerning a fantasy author, George Martin, who has somewhat peculiar notions concerning copyright and fair use. In the course of explaining why, in his view, science fiction and fantasy authors must sue to shut down fan fiction wherever they find it, Martin cites as anecdotal evidence an incident that he claims happened to noted science fiction author Marion Zimmer Bradley:

MZB had been an author who not only allowed fan fiction based on her Darkover series, but actively encouraged it… even read and critiqued the stories of her fans. All was happiness and joy, until one day she encountered in one such fan story an idea similar to one she was using in her current Darkover novel-in-progress. MZB wrote to the fan, explained the situation, even offered a token payment and an acknowledgement in the book. The fan replied that she wanted full co-authorship of said book, and half the money, or she would sue. MZB scrapped the novel instead, rather than risk a lawsuit.

There’s some doubt expressed in the comments that Martin has recounted this story accurately, but that’s not my issue right now. Assume it happened just that way. I posted a comment saying that authors could avoid this situation by making clear, if they give their blessing to fan fiction, that it’s under a reciprocal license—the author has a nonexclusive license to use any derivative work created by the fan. (I also noted some other things, like the fact that joint authorship was not a real threat.) Jacqui posted a comment noting the scholarship on fan fiction, some of which argues that at least traditional fan fiction should be protected as fair use.

Put those points together, like some sort of bizarre Reese’s peanut butter cup commercial. Suppose Author A puts up a notice on their website along the lines I suggested, and suppose Fan Fiction Writer B sees the notice and then writes some fan fiction. Author A sees the fan fiction, and then sometime later writes a sequel that bears enough similarity to it to arguably qualify as substantially similar. But B argues: “Sure I saw your proffered license. But I didn’t need a license from you to do what I did; it’s a fair use. Therefore the original material I created belongs to me and you needed a license from me to use it.”

Something strikes me as wrong about B’s argument, but I’m not sure exactly what. It could be some variant of the copyright chestnut of an author being sued for infringing on him- or herself. It also reminds me a bit of Verio’s (losing but plausible) argument in Register.com v. Verio, that you can’t protect by contract something you have no exclusive rights over in the first place. But it seems very odd to have fair use being, essentially, converted from a shield to a sword.

Is there a clear way for authors to both bless fan fiction and avoid “blocking derivative works”? Would a mere covenant not to sue fan fiction writers, rather than an actual license, do the trick, such that use of the underlying material is not licensed and therefore Section 103(a) kicks in to deprive B of ownership over the new material? I’m not sure that establishes the necessary licensing hook the author would need in the first place. Perhaps the answer is that individual authors, just like large publishing houses, have to be extremely careful about unsolicited submissions. But that seems unsatisfactory. Thoughts?

Who gets whacked? Politico and Copyright

This morning’s Politico.com features a story entitled “Who Gets Whacked?” – a guide to Sarah Palin’s recent “Going Rogue” memoir summarizing how Palin treats various Washington players. The story features fairly extensive quotation from the book, which the authors of the story got in advance of today’s release.

Reading the story made me think Harper and Rowe all over again. And I’m curious if Palin’s publisher will sue.

IP in and on the Air

Two of the hottest cases in American IP law are the subjects of recent podcasts:

SCOTUScast presents a dialogue on the Bilski case now before the Supreme Court, primarily between Michael Risch of West Virginia University and Josh Sarnoff of American University Washington College of Law.  The dialogue is moderated by Adam Mossoff of George Mason University.  You can find the podcast here (hosted by the Federalist Society) and at iTunes (SCOTUScast).

The Intellectual Property Colloquium, a series of audio presentations on leading IP issues hosted by Doug Lichtman at UCLA, has put up a podcast on the Associated Press/Shepard Fairey copyright litigation, featuring Mark Lemley of Stanford (for Fairey), Dale Cendali, now at Kirkland & Ellis (for the AP), and Ken Richieri of the New York TImes.  You can download or stream the podcast here. 

Salinger Takes Another Round

Prequel:  A Sequel in the Rye

J.D. Salinger has persuaded a district court judge to elevate a temporary restraining order to a preliminary injunction in his effort to prevent American audiences from reading 60 Years Later: Coming Through the Rye, which uses an aged Holden Caulfield in a narrative sequel to – or parody of — the iconic original.

I haven’t read the full opinion yet, but the passages excerpted by the New York Times strike me as not only wrong but bizarre.  If I’m interpreting the opinion correctly, the judge ruled that the defendant’s use of the Caulfield character could not be excused as “parody” under copyright’s fair use doctrine because Catcher in the Rye is a parody of itself.  The argument seems to go something like this:  Salinger himself has occupied the field of parodies of Catcher in the Rye; therefore, no further parody is permitted.  (I’m no literary critic, but the view that Salinger was being straight and “parodic” simultaneously is a view of Catcher in the Rye that’s news to me.)  The opinion says this, according to the Times:

In fact, it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. That many readers and critics have apparently idolized Caulfield for the former, despite — or perhaps because of — the latter, does not change the fact that those elements were already apparent in Catcher.

It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged.

This case has a long way to go before a final result and opinion will be rendered, but for the moment, and if this passage is representative, then it seems clear to me that the district judge has badly misinterpreted and misapplied the law.  If fair use permits producing a parody of a copyrighted work (and the Supreme Court says that it does), then the original copyright owner cannot preempt all parodies by parodying his own work in the original work itself.  If Catcher in the Rye is a parody of itself, then the legal question is whether fair use permits a parody of the parody.  As a matter of law, the answer has to be yes; Salinger has no legal right to prevent people from mocking him, or mocking the mockery that the judge says is Holden Caulfield.  And is that what Colting, the author of 60 Years Later, is doing?  Mocking the mockery?  So it seems to me. 

There is one case that seems to hold that mocking the mockery isn’t permitted — the Second Circuit’s Seinfeld Aptitude Test case, which can be reduced to the proposition that a book critiquing a TV show for its lack of content is infringing if the TV show is purposely devoid of content.  But the Second Circuit has backed away from a broad view of that opinion, and it has been roundly criticized by the Seventh Circuit.  I think that Holden Caulfield has more trouble ahead.  At least I hope he does.

Updated:  What she said, especially (agreeing with me) regarding what appears to be an error of law regarding the scope of fair use.  It is interesting to parse the two works (Catcher, and 60 Years Later) in their respective literary terms, but in the context of a fair use argument, I think that too much literary analysis hurts rather than helps the defendant. Pam Samuelson is the latest to argue, correctly I think, that fair use is best viewed in more categorical terms. Is 60 Years Later reasonably viewed as a critique of Catcher in the Rye, whatever its merits as criticism (or as literature)?  My answer is “sure,” based on what I’ve read about the work, even if many people would argue that the critique is simplistic, or foolish, or badly executed in some other way.

Updated again:  Here is a link to the full opinion, which I’ve now read.  The full text changes some of the flavor of my points above, but not the conclusion.  The parody/satire distinction is badly over-determined, in the opinion’s framing (so, footnote 3 may be factually accurate but legally irrelevant), either because the court read Campbell to limit the meaning of “tranformative use” to parody alone, or because the court read the discussion of parody in Campbell in a numbingly narrow way, or both.  (I mean “numbingly” in a nearly literal sense.)  

I’ll stipulate that scholars have noted before that Catcher in the Rye includes “internal” criticism of Holden Caulfield, and I’ll stipulate that 60 Years Later repeats many of the themes of that criticism.  Has 60 Years Later repeated that “internal” criticism verbatim or nearly so, thus appropriating “more than is needed” to make a legitimate critical point about the original?  The court says “yes” but rests its conclusion not on excessive copying of clearly copyrighted expression but instead on an amalgam of “similar and sometimes nearly identical supporting characters, settings, tone, and plot devices to create a narrative that largely mirrors that of Salinger” (p. 26).  In total, my conclusion in unchanged.  The court has assigned Salinger an exclusive right in criticism of Holden Caulfield, based on Salinger’s own criticism of Holden Caulfield; the objection is that 60 Years Later criticizes Holden Caulfield in the same way that Holden Caulfield had been criticized by his creator, that is, in much (but hardly entirely) the same context.   Because of the court’s crabbed reading of Campbell, its analysis in couched needlessly in the “parody” framework that the Supreme Court discussed there.  But now I’m more persuaded than ever not only that the opinion is wrong on fair use grounds, I’m also starting to suspect that it could have been argued, and decided in favor of the defendant, on idea/expression grounds.