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Copyright in a free society

Observer Viewpoint | Thursday, February 10, 2005

The waxed and lacquered halls of the commercial Internet notwithstanding, a large portion of the Web is an enormous collection of cliques, the majority of which are rarely, if ever, called to the attention of the outside world. Some of these would undoubtedly shock your grandmother, should she find you a member of one, but most are innocent, if unusual. A few even manage to cross the line into remarkable.

The fanfiction community is unique even among these groups, because its primary purpose is creation (it is most defiantly not engaged in piracy) and despite this, it is undeniably illegal. Fanfiction is a narrow class of literature, which borrows significant aspects of a story, normally characters and sometimes plot, from other sources. Popular literary works, movies, television and even the lives of celebrities are all fair game.

Like many cliques, fanfiction writers speak in a kind of code that discourages outsiders (they share this with hackers, cops and investment bankers), but if you know the language, and where to look, a quick search reveals hundreds of thousands of works of fanfiction based, most commonly, on “Harry Potter,” “The Lord of the Rings,” “The OC,” Japanese anime, video games and hundreds of other nuggets of pop culture. Each writer reinterprets the work with his or her own unique vision.

What you will not find, unless you dig very deeply, is anything based on the works of Disney, Anne Rice and any of the entities that police their copyrights with rigor. Fanfiction exists only with the implicit blessing or ignorance of others – the smallest whiff of a cease-and-desist letter and it will disappear. In this regard, fanfiction is very fragile.

It is not surprising that the Disneys of the world are not pleased with fanfiction. Some of the portrayals of their creations are fringe, violent, erotic, out-of-character or otherwise unacceptable to clean-nosed family-oriented companies, or current conservative sentiments. Not all are like this, but lawyers are not renowned for their patience, and they target the innocent with the guilty.

But despite these unsavory aspects, or perhaps because of them, fanfiction plays an essential, but yet unrecognized role in our culture, because it is perhaps the last battle of a war being fought over the soul of copyright.

We are living in a privileged age- some of the great masterworks of the early 20th century entered into public domain before the copyright expansion movement took foot. “The Wizard of Oz,” for example, has spawned dozens of books, several movies – including one masterpiece – and a very successful Broadway musical. Had the copyright persisted for another hundred years, perhaps a movie would have been created – much like “The Lord of the Rings” today – but the vast majority of that culture would have been lost, because many of the individuals for whom Oz was a central part of life and culture would have been long dead.

Some the interpretations of “The Wizard of Oz” would doubtlessly have sent Baum into a rage. Some of the stories contain rape and murder for example, and Baum was very much against this. But this does not mater any more, because “The Wizard of Oz” belongs to the public, and the public alone. It is a part of our culture, and it is our duty to make of it what we will, good or evil, puerile or majestic, but above all new, and above all ours.

It is our present culture that fanfiction writers are exploring, an area otherwise closed off by copyright, and its almost everlasting duration. Our ability to re-appropriate our own culture, today and now, and as we see it, is torn away from us. When the time comes that we may claim it as our own, all those who care will be gone.

Only the fanfiction writers have the guts to stand against the destruction of the intellectual and cultural commons in an act of civil disobedience. Only the fanfiction writers are publishing the stories, and ideas, the myths and mistakes of the culture of the minute.

I’ll be absolutely frank – the vast majority of fanfiction is badly written, shortsighted, cliché and boring. But is it any less worthy of the sort of protection enjoyed by parody, which also by its very nature cannot exist with the consent of a copyright holder? Is it any less necessary for us to have a venue where we can express ideas about our present culture, whether or not the copyright holder cares either way? For me the answer is clear, and I will side with the writers of fanfiction.

Lance Gallop is a fifth-year senior majoring in computer science, philosophy and theology. He welcomes comments and criticisms, but please do not send requests for technical support. He can be reached at lgallop@nd.edu.

The views expressed in this column are those of the author and not necessarily those of The Observer.