The Rise of a Networked-Economic Giant; or Everybody Wants to Go to Heaven, But Nobody Wants to Die
In Yochai Benkler’s book The Wealth of Networks, he explored the internet’s potential in transforming human society by comparing behavior of people living in advance economies between a industrial mode of information production and network mode of information production. In some ways it is a repackaging of the common, copyleftist argument about freedom–”free as in free speech, not free beer.” However, Benkler raises a contention that a networked, non-proprietary approach to creating valuable, marketable information can be just as good, if not superior to a classical, industrial mode of production of information. Benkler does this through both economic ally and in social and political terms. While his example of the open-source movement in the software industry is a common banner that copyleftists rally under, the generalized approach Benkler used to explain the situation can be applied across-the-board, to most, if not all, useful information that is produced today under an industrial mode of information production.
Taking a bottom-line, cynical approach, I ask: Is Google’s long-term strategy as a business entity to create a niche in the market and in the landscape of copyright law, a sustainable goal? While the public cannot be certain what goes on in Google’s board meetings, one can reasonably construe their recent actions, marketing strategies, and overall philosophy to suggest several things:
1. If one can fairly presume that Google is full of smart, intelligent managers, lawyers, and businesspeople, then their success thus far these past few years means a switching of gears that they are going to be in this business for the long haul. Google has not existed even for 10 years, and many years less in the eyes of the public (and investors). Given their position as a leader in the internet-related industries, they now have the wherewithal to take new kinds of risks and pioneer the future in this mostly uncharted area of business and law.
2. Jessica Litman’s Digital Copyright lays out a solid foundation and a rather cynical view of US copyright law. In part, she argues the current statutory regime is the direct result of many elaborate and complex negotiated-for bargains between the traditional players in the copyright industry. While Litman, Benkler, and many others warn the senselessness and unfairness of applying laws meant to enforce economic competition between businesses to everyday Joe and Jane, the fact that Google (and the majority of players in the higher level of abstraction of the internet market–to exclude telecom interests and ISPs from the picture) had no say during the late 1990s round of legislative negotiation, it leaves new players in new media little choice in dealing with laws that are designed keeps the old players in power. Indeed, this entire school of thought did not start to mature until years after the passage of the DMCA. (Perhaps talk about Yahoo here?)
3. Are Google’s lawsuits a form of impact litigation? No doubt, by bringing novel and new issues before courts, Google is trying to set laws in favor to itself. In fact, if Litman is right, the court may be the only real legal venue where Google can seek relief; and especially if the legislative process is as slow as Litman (and in the history of US copyright law) claims. But as a rule, outside the court room, lawsuits have deep and complex implications for businesses. One of the key implication is in the battle of mindshare. (Bruce Keller’s presentation about the ad-based model of Google and the comparison to TV and radio elicited in me a feel of irony in light of the big picture.) Google is viewed in the eyes of the public directly, and its good will with the public affects its earnings in a very direct way (as opposed to book publishers or the Author’s Guild, as examples of Google’s opponents). Thus, Google has a stake in swaying the law to embody a wider fair use, or more free use, in alignment of public interest. Google can paint its opponents in a light of how established players, lacking that judicial agility, fight to retain the way they do business against innovative technology. It is both a marketing ploy and a legal strategy.
4. This ties in with the perceived, Lessig-like argument about fair use. It is generally accepted that a business method relying on a legal interpretation of fair use is an extremely risky one. While that never stopped VHS and Betamax manufacturers, the full force of the copyleftist argument is that some of the new things we can do through new media seems to violate the section 106 bundle of rights, they shouldn’t. These uses should not even be “fair use,” but free, un-infringing use. However short of legislative changes, Google’s only alternative is to have a court declare that it is “fair use.” Once realized that these reforms are very pro-public and against the interests of the established, entrenched corporate interests in old media, the public will tend to rally towards Google, its free services, and its vision of a freer informational future.
5. The nature of a internet search engine cannot be reduced to the like of a yellow pages or any analogous argument someone may make in court as a biased counsel. The web itself has been transformed entirely by search engines; Google’s success alone is more than enough to testify to its significance. It can be fairly said that ultimately Google is a middleman in the balance of consumers, creators, and middlemen, but how will the courts appreciate the value Google adds to our economy today? How will the courts appreciate the value of YouTube? MySpace? Will it go the way of Grockster; or the VHS?
Conclusion: What does Google stand to lose if they do not press on at this time? This is the $64,000 question, but does sound business sense means anything in an industry that is fast-changing, dynamic, and highly developing? With high risk comes high rewards. The fact that Google is such a threat to traditional players in consumer media (and an ever-growing list of other traditional players), there are reasons to believe this is going to be the case only if Google breaks the ties of the legislative binds that hinders it as a corporation in competition with other economic entities interested in the same slice of the consumer pie. Why say yes to licensing when you can always say yes to licensing later? The cost of litigation plus even a poor settlement seems little when the entire future of the world’s information industry is in the balance. To call Google’s attorneys as “believers” is probably more fitting rather than calling them prophets, but that is exactly what is in the balance for them.
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Yeah.
The above is a rough outline of what I plan to write in a week’s time into a short paper. (And forgive the random references that I make with no clear meaning as to what it refers to, just for my own sake.) The relevance to all things anime is small but it’s an answer to a question plaguing the content industry. The internet has long since been the worst kept secret to wealth in this information revolution. How do you make a buck? How do we work with fansubbing to make a buck?
Indeed, if what keeps fansubbing alive is the monetary barrier to bring a suit to a wide range of people all over the world, to sue potential customers of Kadokawa Shoten, Bandai, MediaFactory, King Record, and what have you…
1. Why hasn’t there been more concerted effort to bring “fansub groups” down?
2. Fansubbing has evolved. But where will this go next? To elaborate, since the days where we pipe text through a genlock to mail SVHS tapes in a SASE envelope to today where we can produce MTV-style parodies with Aegisub and put it on YouTube, things has changed. The legal liability and economic incentives changed. The use changed. The users changed. And it will continue to change. I find it disturbing that I have to make a distinction between fansubbing in various contexts.
3. What other relevant questions can we ask? What are all the stakes? Whose stakes are important? To whom?
What I would really apperciate are references and critiques if you can throw them my way. I’m still in mid-research, so to speak, so that sort of stuff can be very valuable for me. Pretty please?
Of Gaiman and McFarlane, Posner and Me.
If you cared for English-language comics, you might have heard of the long, strange, and fantastical mess of things behind the ownership of Marvelman. It is just odd, and somewhat irrelevant. So, here’s a bit of exposition behind all this: Marvelman is some comic franchise/character Neil Gaiman, famous comic artist and scriptwriter, tries to revive, for some reason. At one point Todd McFarlene thought he had the rights, and it happened that Gaiman is a co-owner of some of the key Spawn characters, namely Angela, Cogliostro, and Medieval Spawn. Anyways, at one point Gaiman and McFarlene decided to trade the rights to Cogliostro and Medieval Spawn with Marvelman (as it was worth pretty close to nothing at that point, compared to having a piece of the Spawn empire at the time). This was 1997.
However things didn’t work out between them, and they had to call in the lawyers. And there were judges. I’m going to come clean: I’m totally interested in this case because of Posner, and how he deals with this topical matter, and the topical matter itself. I care for Gaiman a tiny bit and definitely do not care about McFarlane at all; which is probably more than how much I care for Spawn or Angela or Marvelman (as a character).
But when I read this, I just can’t imagine someone like Posner (or one of his clerks, more likely) that would pour over the general concepts of Spawn. I suppose by the time that he authored the opinion he would have had the chance to see the movie. Yeah, I’m a bit of a Posner fanboy.
Ah well, I’ll let his writing do the work:
We need to do some stage setting. Gaiman and McFarlane are both celebrated figures in the world of comic books, but they play different though overlapping roles. Gaiman just writes scripts; McFarlane writes scripts too, but he also illustrates and publishes the comic books. In 1992, shortly after forming his own publishing house, McFarlane began publishing a series of comic books entitled Spawn, which at first he wrote and illustrated himself. “Spawn,” more precisely “Hellspawn,” are officers in an army of the damned commanded by a devil named Malebolgia, who hopes one day to launch his army against Heaven. The leading character in the series is a man named Al Simmons, who is dead but has returned to the world of the living as a Hellspawn.
Al’s story is an affecting one. Born in a quiet neighborhood outside of Pittsburgh, he was recruited by the CIA and eventually became a member of an elite military unit that guards the President. He saved the President from an assassin’s bullet and was rewarded with a promotion to lieutenant colonel. He was placed under the command of Jason Wynn, who became his mentor and inducted him into the sinister inner recesses of the intelligence community. When Al began to question Wynn’s motives, Wynn sent two agents, significantly named Chapel and Priest, to kill Al with laser weapons, and they did, burning him beyond recognition. Al was buried with great fanfare in Arlington National Cemetery.
Now Al had always had an Achilles’ heel, namely that he loved his wife beyond bearing and so, dying, he vowed that he would do anything to see her again. Malebolgia took him at his word (”would do anything” and returned Al to Earth. But a deal with the devil is always a Faustian pact. Al discovered that he was now one of Malebolgia’s handpicked Hellspawn and had been remade (a full makeover, as we’ll see) and infused with Hell-born energy.
Returned to Earth in his new persona, Al discovers that his wife has remarried his best friend, who was able to give her the child he never could. He absorbs the blow but thirsts for revenge against Jason Wynn. He bides his time, living with homeless people and pondering the unhappy fact that once he exhausts his Hell-born energy he will be returned to Malebolgia’s domain and become a slave in an army of the damned with no hope of redemption. He must try somehow to break his pact with the devil.
Even better is when he goes on and describes Angela and the other Gaiman contributions regarding Spawn issue #9:
McFarlane’s original Spawn, Al Simmons, was a tall figure clad in what looks like spandex (it is actually “a neural parasite”) beneath a huge blood-red cloak, making him a kind of malevolent Superman figure, although actually rather weak and stupid. His face is a shiny plastic oval with eyeholes but no other features. Gaiman decided to begin Spawn No. 9 with a different Spawn, whom he called “Olden Days Spawn.” He explained to McFarlane that “[Olden Days] Spawn rides up on a huge horse. He’s wearing a kind of Spawn suit and mask, although the actual costume under the cloak is reminiscent of a suit of armour.” McFarlane drew “Olden Days Spawn” as (in the words of his brief) “essentially Spawn, only he dressed him as a knight from the Middle Ages with a shield bearing the Spawn logo.” To make him credibly medieval, Gaiman in his script has Olden Days Spawn say to a damsel in apparent distress, “Good day, sweet maiden.” The “damsel” is none other than Angela, a “maiden” only in the sense of making her maiden appearance in Spawn No. 9. Angela is in fact a “warrior angel and villain” who, scantily clad in a dominatrix outfit, quickly dispatches the unsuspecting Olden Days Spawn with her lance.
We learn that this event occurred in the thirteenth century, and the scene now shifts to the present day. Angela is dressed as a modern professional woman. The Al Simmons Spawn is lurking about in an alley and it is here that we meet Count Cogliostro for the first time. McFarlane had wanted a character who would be “basically. . . the wisened [sic] sage that could sort of come down and give all the information and assimilate it.” Gaiman interpreted this as an instruction to create “a character who can talk to Spawn and tell him a little bit more about what’s going on in the background and can move the story along. ” So he created an “old man, who starts talking to Spawn and then telling him all these sort of things about Spawn’s super powers that Spawn couldn’t have known. And when you first meet him [Cogliostro] in the alley you think he’s a drunken bum with the rest of them, and then we realize no, he’s not. He’s some kind of mysterious stranger who knows things.”
Gaiman further described Cogliostro in a draft of Spawn No. 9 as “a really old bum, a skinny, balding old man, with a grubby greyish-yellow beard, like a skinny santa claus. He calls himself Count Nicholas Cagliostro” (later spelled Cogliostro). In a brief scene, Cogliostro, drawn by McFarlane as an old man with a long grey beard who faintly resembles Moses–McFarlane had been dissatisfied with Gaiman’s verbal description, which made Cogliostro sound like a wino–explains to Simmons-Spawn some of the powers of Hellspawn of which Simmons is unaware. Cogliostro displays his mysterious wisdom by calling him “Simmons,” to the latter’s bafflement–how could Cogliostro have known? Angela then appears in her dominatrix costume, there is another duel, and she vanquishes Simmons (whose powers are in fact unimpressive), but does not kill him. He then blows himself up by accidentally pushing the wrong button on Angela’s lance, which she had left behind. Happily he is not killed–merely (it seems) translated into another dimension–and will reappear in subsequent issues of Spawn.
I mean, this is just brilliant. I don’t think many fans can even write and grasp the concept of Spawn so cleanly as Posner did. Granted back in 2004 when this was news, I wasn’t a Posner fanboy and I was equally ignorant of copyright law, so this didn’t ring a bell. Now I revisit the same material for class and I go all LOLOL over it. Sigh. At least you now know how it has to do with me. It does serve an important lesson for you fancy pants creative types, so know who you collaborate with!
Ahh, curiousities of American law and business methods.
Blogging 311 - Collective and Transformed, Copyrightable Expressions as Memes
It’s actually a very complex topic and I’m not sure I can give it the right treatment right now, without having done all the research I want to. Treat this as an outline I suppose.
But somewhere between the shuffle of the internet, from one viral marketing tool to another, the evolution of Web 2.0, and attention whoring on YouTube or MySpace, there is something going on. Lessig calls it a war, but I think it’s a lot more subtle than that–although it is pretty serious. However, while the war (or whatever you call it) may wage on, there are some players who are the key to understand why it’s an important conflit. Memes are one of them.
For the sake of simplicity, we’ll define and call this construct a “meme” in that it is a icon, like words in a language, that symbolizes and trigger a set of experiences, ideas, and/or emotions. These are powerful currencies that brings us to laughter, to sadness, to help us remember.
1. Memes are powerful, compact, concise devices to invoke elaborate and complex ideas and shared experiences.
As time become increasingly valuable in certain societies and cultures, and as well as the size of our communication devices for mass media shrink over time (not to mention our attention span), it is increasing important to be able to deliver large amount of content over a small area. A picture is worth a thousand words, so they say–that’s why motion pictures and television are powerful? Memes, audio, audiovisual, visual, slogans, simple words, emoticons, or even body language become common methods to express large amount of data over a short time. It’s got the phat pipes, so to speak. And unlike latin or calculus, it is widely disseminated and fast to learn.
2. Increased mobility and intake demands concise and short informational exchanges
In terms of blogging, memes are both the bait and the hook. In some ways it is just another channel to communication and disseminate. Soap box where people can talk back at you. Slashdot is probably the best example. For me, 2ch, 4ch, SA, Wikipedia, Xanga, MySpace, what have you. However the juicy morsels of entertainment and education that draw us to those sites are what memes are made of. Snakes on a Plane? The online craze is unbelievable. Yet that’s what some of us are looking for–good campy movies–to begin with. It just spread like how a meme does.
3. Memes are useful for blogging, blogs create memes.
But speaking of Snakes on a Plane, the obviously stock concept of dangerous creepers in a confined area with a lot of people who can’t leave is hardly copyrightable. In some ways Samuel L. Jackson’s performance involving the various uses of “motherfucking” has more copyrightability (even if it is also not really copyrightable), which is odd. Of course I say this with the disclaimer that don’t take my word for it–the law on the book is fairly settled when it comes to Scene a Faire. Still, it might take a litigation anyways to find out. Can New Line Cinema take on the countless of parodies and references to this cult hit-in-the-making for ages to come? Probably to some success if the money is there. What’s up with the rather high 8.1 IMDB ratings anyways?
4. Memes may use copyrightable or trademarked expressions to get the job done.
5. Derivative claims on memes–not derivative enough too frequently.
If you recall the original flash video for All Your Base Are Belong To Us, you’ll remember a large amount of use of photochopped image ala Photoshop Friday @ SomethingAwful. Parody? Maybe–they’re definitely not making fun of the cultural icons they were using. And you may also recall that’s the reasoning why PA humbled themselves from the Strawberry Shortcake joke they pulled. All these things makes weak, in the context of a fair use defense against copyright infringement, the fair use defense.
And on the topic of Penny Arcade, they’re not a non-profit use per se. I’m not sure if they’ve gone farther with what they’ve had, including PAX and all, but in many ways they’re a profitable entity–enough to subsist Tycho and Gabe’s gaming habits at least. In as much most relevant memes do carry some kind of social value either as criticism, and are often freely traded, they tend to use commercial, copyrighted content that are not news-worthy. There are some that are, such as ones involving 9/11 or the war in Iraq, depending on subject matter.
6. The context in use of memes: commercial, private/public, social criticism, fact/news/fiction. It can affect the fair use defense.
And even though you can’t call AYBABTU a Budweiser ad, or even an ad for an old NES game, it evokes enough of both. What has been transformed? Certainly the images themselves and their contexts, but each of those individual elements were preserved to a sufficient extent that reminds the viewer what they are, to create the juxtaposition necessary for the meme to stick. It’s like noise music in that sometimes you want to preserve the original identity, but it in itself is not the attraction.
7. Transformative nature of memes
There is one big hurdle I think we need to decide, each for yourself. Do you think in today’s mass media society, the pieces of popular culture created and conformed to feed into our feeble minds, belongs to you? Or does it belong to those who created it? Remember, it’s inside your mind.
8. The Lockean balance
9. Redefining the public domain - who owns culture?
I suppose the last question is one that needs to be answered early on. If a movie like Snake on a Plane can be copyrightable, memes would be generally. However what’s the “meme” in SoaP isn’t the film itself, but the shtick and the hype surrounding it.
This is one of the other emerging area of law that is, for the most part, poorly chartered and thought-out. I trace it from the perspective of copyrightable fictional characters (who are some of the best memes themselves, to me). MGM v. Honda is probably the big turning point for it legally, but where does it end?
10. Are memes copyrightable?
I hope this helps you (and me) to focus a bit where the issues are today, and why it is relevant.
Well, why is it relevant? Fanfiction? Doujinshi? AMVs? Even cute little blog posts like Yuribou’s interviews? Why, what about the vibrant fan art or non-fan art that we use, for granted, as avatars, wallpapers, photochopped jokes and e-cards? It all can matter.
And lastly, this is a part of series of entries:
- 101 - Creation-Traction and Introduction
- 203 - Informational Virology and Memetics
Comic Cosmology or the Future of Doujinshi
First, that Wired article really needs responding, thx PPP.
Disclaimer aside, the author of that article, Jennifer Granick, is working for Stanford Law School’s Cyber-Law clinic. Did that get me interested? Heh.
I’ve read pieces about doujinshi’s role in the manga-laiden content industry in Japan. I’ve read people shopping for doujinshi in Japan (check out Shingo’s … loot). Now I’ve read the reactionary nudgenudgewinkwink of a law professor’s yaoi doujinshi shopping trip in Tokyo.
Of course, that’s not all. Wired is considered as mainstream press, to me. Doujinshi, however, is not quite a mainstream item even in Japan. It’s the crowning icon of geek fandom, as the semi-annual Comiket is the holy grail of Japanese visual culture fans everywhere. But for us who cares about things like media content cartels and the rights of derivative use of copyrighted works, it’s an anomaly.
Since Suzumiya Haruhi is the top pick for day 3 of Comiket 70, that would make a fine example: Would you allow your fictional creation, the characters, settings, and concept of a juvenile science fiction series to be pasted all over the internet in various form of sexual deviancy? How about the animators and their drawings? The character designers and their designs? The voice actors’ likeness robbed?
Well, I don’t want to know your answer to having your work’s integrity reduced–how about the fact that Shingo spent over $600 on them and a fifth (I didn’t look at his loot pic closely) of the doujinshi he bought ($120) was pornographic, Suzumiya Haruhi doujinshi? Multiply that by, say, 120000 (a rough estimate of attendees on the third day)? Ok I know the numbers are way off and they’re estimates, but it’s still there to make a point: The reality is that in North America, that kind of profit making is not possible; at least not without a big, fat lawsuit attached.
Yet that is just not the case at Comiket, or the doujinshi scene generally. Creators often turn a blind eye to that. The behavior is reinforced when many of the creators themselves are a part of the doujinshi scene. The top two people for the Comiket committee are both professionals in the field; a manga critic and a manga editor for a major publisher. That’s not to mention the number of circles run by people who are professional mangaka, illustrators, designers, animators, etc.
Or the number of “professional” doujinshi circles, for that matter. People can make a living off this? That would be news to me if it didn’t make way too much sense. Even if for the most part doujinshi is inexpensive–usually size of trade paperback comics, and often with some colored pages, each going for about 1000 yen–it also doesn’t take a whole lot to produce one.
And here is where I totally kudos Granick’s second point: a creative environment fosters creative people when they’re allowed to innovate on other people’s intellectual works. It’s a careful distinction I’m making: it’s not about having the bread-cutter and bread so you can invent sliced bread, but being able to use knives, breads, chicken, widgets, and whatever so you can learn how to invent crap as a skill, and being able to make your creation relevant at least to a significant amount of people.
Indie artists and indie comic artists know how hard it is to break in. It’s kind of a serendipitous event that I’m so familiar with Megatokyo, because that could be considered as one of those webcomics that has kinda made it. And how so? It hitched a ride on roads paved by others. At least, if the road construction crew known as Air, Kanon, Martian Successor Nadesico, Bubble Gum Crisis, the concept of shoujo manga, and many other did pass by you, something like Megatokyo might ring a bell.
Indeed, it’s about harvesting that nexus of popular culture in order to web in an audience. It’s totally undeserving, but on the other hand it’s artistic expression at the edge of everything to fill in a vacuum untouchable by the legalities of copyright law and the common practices of copyright IP licensing. Just how do you make a pornographic version of Super Mario Bros crossed with Final Fantasy 7? Yet I’m sure there’s a significant demand for that, you sickos.
The nodnodwinkwink is really just that: America’s content producers and distributors: drop it already. You’re never going to reap where you are never going to sow, so why not let freedom of speech reign? Why not let culture develop like culture does? It fosters creativity! If you worry about integrity, you can still make a point out of that–Japan’s doujin scene is very good about that kind of ethical codes (unlike English-language fansubbers, sadly)! Besides I think any sensible individual knows to keep their Melfoy x Harry Potter yaoi somewhere where the sun don’t shine, and we can just tar & feather those insensible ones anyways.
Second, the future of Comiket.
Talking to a friend who talked to some of the Comiket committee people makes me understand that Comiket itself is just like any other convention structure that you’d expect. Considering the sheer size and the kind of obsessive behavior they have to combat, they actually have quite a tough time. On one hand, the recent years of Comiket had the local riot squad and FD handy at the event, just in case something breaks out; that’s not to mention the scores of security people they hire and the medical people. On the other hand they have to combat things like crime because the overnighters (people who camps out at the Big Sight from the day before) are usually loaded with cash (well, that goes for all the Comiket shoppers), attracting gangsters. Not to mention it’s just a big pain in the ass to anyone who lives near Tokyo Big Sight and the surrounding transit system.
But troubles aside, it’s still the pinnacle and heart of the Japanese doujinshi scene. While doujinshi and the like are sold all year round, in stores as well as in other cons and market gatherings, there’s already that legendary aura around this event. It’s still the de facto commercial end of operations, drawing clubs, circles, veterans and nubz alike. If someone were to pull a calculator and did a net revenue thing, it would yield an impressive number. Even with the fact that the doujinshi scene gets away with rubbing copyright law, it’s becoming a large enough of a thing to worry some corporate interests.
And of course, there’s just a problem with its sheer size. It’s hard to run a con that huge. Otakon capped its attendence in knowing that to run a con that’s even bigger it would require some significant change in its costs, characteristic, venue, and/or organization. From its humble beginning, Comiket went from 750 attendees to its fire-hazardous mass today. The real attendence is sketchy since they’re tallied on a per-day basis, to form a total of 420000 for C70 this past weekend. Obviously a lot of people went on more than 1 day, so there’s a lot of double or triple counting.
Still, one must contemplate the eventual end of Comiket. I’m in no place to guess how it will end and why, but it can’t go on forever. Has it already gone Red Giant? Will it go dwarf or nova next? These are exciting times indeed.
Casulties of War
Last week, the potentially landmark lawsuit LabCorp v. Metabolite got dropped from the US Supreme Court. The three dissents were hell bent on kicking patentability back a notch, and I am with them. However I think everyone who is actually practicing patent law would prefer to let the sleeping beast sleep for some more.
But I guess we shouldn’t speak too fast. In the mid-to-late 1900s we’ve had some serious caselaw over what is obvious in respect to what can be patented. Needless to say it’s a big, grey mucky area that no one can say for sure all the time. As a subscriber of the future curve theory of social and scientific progress, I feel like a war profiteer, going into this industry during such a time of unrest. Indeed times have changed, will our jurisprudence remain?
