March 2000

Digital Land Grab

Continued from page 2

By Henry Jenkins

And that kind of exclusive ownership cuts directly against the grain of the technology in question. 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 Web forum 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 the original message into our own. When netizens discuss television, we quote equally freely, pulling chunks of aired material into our posts, and adding our own speculations. Other people respond, add more material, and pretty soon the series as viewed by list participants differs radically from the series as aired. In other words, webbers approach television content as "shareware."

Still, what one originates, the law insists, one should have the right to control and profit from. The legal fiction is that no one is harmed by this land grab on the cultural commons. Tight control over intellectual property isn't ultimately a question of author's rights, because without much discussion, control has shifted from individual artists to media corporations-authors now have little say over what happens to their creations. The corporate attorneys rule.

If trademarks are used too broadly and without a history of legal enforcement, companies will lose exclusive claims to them-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 an "X-Files" logo on an unauthorized homepage. Attacking media consumers damages relationships vital to the future of their cultural franchises, but corporations see little choice, since turning a blind eye could pave the way for competitors to exploit valuable properties.

Copyright law was originally understood as a balance between the need to provide incentives to authors and the need to ensure the speedy circulation and absorption of new ideas. Contemporary corporate culture has fundamentally shifted that balance, placing all the muscle on one side of the equation. Media companies certainly have the right to profit from their financial investments, but what about the "investments"-emotional, spiritual, intellectual-we consumers have made in our own culture?

Through its "associates" program, the online book dealer Amazon.com encourages amateur critics to build book-oriented Web sites. If they link back to Amazon's homepage, they will get profit points from every sale made to consumers who follow that link. Amazon has discovered that revitalizing a grassroots book culture increases public demand for books. Perhaps media producers should 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.

Intellectual property law didn't matter much as long as amateur culture was transmitted through subterranean channels, under the corporate radar, but the Web brought it into view by providing a public arena for grassroots storytelling. Suddenly, fan fiction is perceived as a direct threat to the media conglomerates.

One can, of course, imagine that fans should create original works with no relationship to previously circulating materials, but that would contradict everything we know about human creativity and storytelling. In this new global culture, the most powerful materials will be those that command worldwide recognition, and for the foreseeable future, those materials will originate within the mass media.

For the past century, mass media have displaced traditional folk practices and replaced them with licensed products. When we recount our fantasies, they often involve media celebrities or fictional characters. When we speak with our friends, sitcom catchphrases and advertising jingles roll off our tongues. If we are going to tell stories that reflect our cultural experiences, they will borrow heavily from the material the media companies so aggressively marketed to us. Let's face it-media culture is our culture and, as such, has become an important public resource, the reservoir out of which all future creativity will arise. Given this situation, shouldn't we be concerned about the corporations that keep "infringing" on our cultural wellspring?