Illegal Literature Toward A Disruptive Creativity

Illegal Literature
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I L L E G A L L I T E R AT U R E
Toward a Disruptive Creativity
Dav id S. R o h
University of Minnesota Press

Minneapolis
London
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An earlier version of chapter 1 was published as Two Copyright Case Studies from a
Literary Perspective, Law and Literature 22, no. 1 (2010): 11041. Reprinted by permis-
sion of Taylor & Francis Ltd., http://tandf.co.uk/journals.
Copyright 2015 by the Regents of the University of Minnesota
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, electronic, mechanical, photocopy-
ing, recording, or otherwise, without the prior written permission of the publisher.
Published by the University of Minnesota Press

111 Third Avenue South, Suite 290
Minneapolis, MN 55401-2520
http://www.upress.umn.edu
Library of Congress Cataloging-in-Publication Data
Roh, David S.
Illegal literature : toward a disruptive creativity / David S. Roh.
Includes bibliographical references and index.
ISBN 978-0-8166-9575-1 (hc)
ISBN 978-0-8166-9578-2 (pb)
1. LiteraturePhilosophy. 2. Literature and technology. 3. Creation (literary, artistic,
etc.). I. Title.
PN45.R577 2015
801'.3dc23 2014043041
Printed in the United States of America on acid-free paper
The University of Minnesota is an equal-opportunity educator and employer.
2120191817161510987654321
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CONTENTS
Prologue Between Analog and Digital Cultures vii
IntroductionAccretive Genius: The Case for Disrupting Culture 1
1 Dead Authors, Copyright Law, and Parodic Fictions 26
2 How Japanese Fan Fiction Beat the Lawyers 55
3 The Open-Source Model: Versioning Literature and Culture 96
Epilogue On Being Accused 121
Acknowledgments 129
Notes 131
Index 157
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P R O LO G U E
Between Analog and Digital Cultures
i belo ng to a g e n e r at i on o f s ch ol a r s that could be considered

transitional; we are not quite born digital like our students, but neither
are we entirely analog. I confess to having had only a brief affair with
library card catalogs, as I soon moved on to green-tinted, monochromatic
library terminals; LPs, 8-tracks, and cassette tapes cluttered the house
before disappearing into the black hole of obsolescence to make way for
the now-doomed CD. But I still appreciate the tactile pleasure of holding
an LP; I miss the warm oak of card catalog cabinets; and I enjoy the musty,
sweet aroma of book stacks, even as I favor the convenience of an e-reader
while taxiing on the tarmac. Transition, as much promise as it holds, isnt
without a sense of loss and considerable inner conflict.
During the initial turmoil wrought by the clash of digital technologies
and established artists, when it came to early encounters with unsanc-
tioned digital remixes and unauthorized distribution, I struggled with my
inclination to defend the derivative parodists and worthless infringers, for
I valued and admired individual creatorstheir respective writing personae
gave me comfort, their backgrounds enriched meaning and informed my
view of their works. Siding with the parodists and plagiarists, it was said,
directly harmed the original creators, tantamount to moral transgression.
This was a dilemma that is less apparent with every subsequent generation
of students, who demonstrate a casual insouciance to authorial rights
seemingly antithetical to the creative class. In a way, this book is my attempt
to work through the contradictory impulses of those of us occupying the
space between analog and digital.
It would be easy to dismiss one side or the other as being hopelessly
retrograde or amoral, but thats a false binary, a culture war based on an
eitheror construction that ignores the history of cultural development.
v i i
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As I later show, these are not new or unfamiliar struggles. In the process
of writing this book, I stumbled upon two memories typical of American
adolescencecomic books and computersillustrating the same tension
between the dialogic impulse of textual development and larger struc-
tural determinants, such as copyright law and information networks.
In my youth, I had an affinity for comic books, including several titles
from East Asia. Particular favorites were Korean translations of a Japanese
manga called Dragonball. Much to my confusion, I stumbled across vari-
ous Dragonball series that seemed to have wildly different approaches
toward, narratives of, and/or artistic styles for what appeared to be the
same characters. At first, I thought I was reading them out of ordersome
must have been from future story lines that I simply hadnt reached yet.
However, I noticed that the thematic emphases were too different or had
canonical inconsistenciessome focused on secondary characters, some
dwelling on more mature and serious subjects that appeared beyond the
ken of my age group, and some taking larger diegetic risks by tragically
killing off beloved characters. I began to realize that there wasnt just one
solitary narrative universe but a multitude, with different creators and sty-
listic aesthetics. This rich multiverse was exciting and bewildering. Even
at that age, I had been inculcated with the idea that narrative threads only
came from one source or, even if they forked, would eventually collapse
into a singular thread. I had difficulty conceptualizing a textual world in
which many voices sang at different keys to make a chorus. Furthermore,
by that time, I had a vague understanding of the penalties associated with
copyright infringement, but that did little to temper my fascination with
noncanonical, multiple story lines from unauthorized sources.
It wasnt until many years later that I connected this memory of youth-
ful confusion with what I saw as a mode of creativity lying outside the
sanctioned channels of copyright law. Because of my access to another
method and mode of cultural production, I understood the value of poly-
vocality in writing about iconic subjects. As much as I enjoyed the expanded
universe of Dragonball, on some level I knew that it was an illicit textual
pleasure unsanctioned in an American context.
Another distant memory involving the family computer emerges. The
fruit of self-indulgent pleading on my part, our first computer had hardly
a few kilobytes of memory, lacked a hard drive, and ran off MS-DOS
floppy disks. Without a network connection of any kind, it was only useful
for playing simple games, word processing, and primitive graphics. Despite
early efforts at rudimentary programming (copying BASIC programs from
v i i i P R O L O G U E
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the back of computer magazines), after several pages of hand coding failed
to compile, I quickly lost interest.
Several years later, its successor proved to be quite different. We upgraded
to a system with slightly more impressive specifications (including a hard
drive!), but the revelation was a throwaway item I only noticed after wed
brought the machine homea twenty-four-hundred bits per second (bps)
modem. Eventually, I tumbled headfirst into the world of online Bulletin
Board Systems (BBSs), racking up enormous phone bills and driving my
poor parents mad with dial-up misadventures.1 I was able to participate
on discussion boards, download software, and even read early fan fiction
of the Star Trek variety. BBSs eventually gave way to massive commercial
online service providers such as Prodigy, CompuServe, and the many-
headed hydra known as America Online, where I lost myself for countless
hours on the multitude of fora, chat rooms, and bizarre intersections of a
quickly burgeoning Web.
Connectivity had been the ingredient missing from my first encounter
with the terminal. Connectivity allowed my world to bloom with a wealth
of information. The computer became an entry point for the flow of in-
formation, affording me opportunities to download, install, and execute
new operating systems, applications, and utilities. I could now customize
and enhance my textual environment at will. Although this could have
happened with my stand-alone terminal through trading programs among
informal networks of like-minded friends, that network was excruciatingly
slow and undependable. Retail proprietary programs, which for some rea-
son were packaged in enormous, colorful boxes containing a manual and
several floppy disks, were prohibitively expensive. Both infrastructural and
economic barriers precluded change. The solitary terminal existed in a
mode of stasis. Being networked granted access to a wealth of open-source,
freeware, or shareware programs. Suddenly my computers software envi-
ronment changed at a consistent pace. Of course, experimentation often
led to disastrous results, and I ended up wiping my hard drive numerous
times. But each time I blew up my operating system, I learned something
new, which I then incorporated into a fresh installation. I remained ever
on the lookout for new programs, tweaks, and hacks.
Both of these formative experiences lie at the heart of the concerns of
this bookthe law and the network as infrastructural determinants. I ini-
tially thought that Id uncovered a novel mode of iterative creativity, but I
was wrong; it had been masked, ignored, and disavowed, but it existed
long before any intervention on my part. An American legal policy and
P R O L O G U E i x
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culture honoring authorial rights with a strong intellectual property regime
guaranteed my young self a cognitive dissonance when I became exposed
to a rich cultural production that thrived in direct violation of those
tenets. That legacy made certain that those modes of production wouldnt
be allowed in the American context, while looser policies in Asia facilitated
the growth of a textual elsewhere. My early forays into computing were
likewise circumscribed by a limited network of information exchangeI
didnt fully comprehend or exploit the potential of computing until net-
working came to the home user.2
In both cases, I was able to witness and experience how quickly textual
worlds expanded when a legal barrier wasnt present or when a network
opened information channels. The universe evolved quickly, rapidly. It
wasnt always an elegant process, but it was wildly exciting. And it seemed
to occur at this breakneck pace quite naturally, without artificial impetus.
It is the dialogic engine that compels this brisk textual, literary, and cul-
tural evolution to occuras long as the proper infrastructural elements
are in place. That impulse to emulate, improve upon, and recirculate makes
for a disruptive textuality.
x P R O L O G U E
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Introduction
ACCRETIVE GENIUS
The Case for Disrupting Culture
Rather than analyzing power from the point of view of its internal rational-
ity, it consists of analyzing power relations through the antagonism of
strategies.
For example, to find out what our society means by sanity, perhaps we
should investigate what is happening in the field of insanity.
And what we mean by legality in the field of illegality.
Michel Foucault, The Subject and Power
c o nsi d er t h e f ol lowi n g pai r of literary disputes. In 2004, search

engine giant Google announced the Google Book project, an ambitious
undertaking that would scan and digitize every book in existence. It was,
they said, an effort to create a massive database that would ultimately
increase access to information and disseminate knowledge. A hypotheti-
cal user would be able to search for a particular phrase or subject with an
immense amount of accuracy; instead of relying on metadata hand-coded
by humans, the database could instantly access the books themselves and
pull up the relevant texts. It promised to solve the problem of physically
mining through endless troves of print-bound information with a speedy
search and would grant access to anybody with a terminal and network
connection.
Publishers, authors, and academics immediately, vociferously protested.
Digitization unsettled the publishing industry; after witnessing the up-
heaval of the music industry following the advent of the MP3 file format,
publishers were understandably wary of anything that might loosen their
grip; the digital box, once opened, would be impossible to close. They
argued that Google, a private company, collected, hoarded, and distributed
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data that it did not own, violating copyright law. Some authors agreed and
sued Google on the grounds of copyright infringement. Academics had
a range of objectionssome opposed the privatization of the cultural
commons in digital form, which would alienate those who were unable
to pay for their services.1 Others argued that Googles abuse of fair use
would irreparably harm more legitimate exercises, thereby damaging cul-
ture at large; they grew uncomfortable with the idea of Google wielding
excessive control over an important public resource, in addition to its array
of products storing huge swaths of personal data. Eventually, Google man-
aged to hammer out a profit-sharing scheme to appease publishers and
forged relationships with academic libraries to legitimate itself as part of
an educational enterprise.2
A second, more material dispute involves two fiction writers. In 1991, a
Missouri writer published her fourth novel to wide critical acclaim, despite
having lifted the entire plot from a well-known stage play. Set against the
backdrop of the American Midwest, her novel reenvisioned the afore-
mentioned play as a feminist social commentary on familial and social
relationships. Literary critics openly admired her adroit interpolating of
the original play with her own vision, and in the following year, she was
awarded the Pulitzer Prize. With A Thousand Acres, Jane Smiley joined
countless others in the practice of directly appropriating canonical liter-
aturein this case, Shakespeares King Lear. Ten years later, another writer
named Alice Randall embarked on a similar path to publish a subversive
reworking of Gone with the Wind, a novel titled The Wind Done Gone. This
time, however, there would be no accolades, no effusive approbations;
before her novel could be published, she was slapped with a preliminary
injunction by the Mitchell Trusts.
To be fair, the executions of A Thousand Acres and The Wind Done Gone
are quite dissimilar. While Smiley mined the central plot and ideas of King
Lear, the language, period, details, and expression were her own inven-
tions, and her approach indirectly targeted larger social mores. Randalls
method was more directshe critiqued the racist undertones of Mitch-
ells work by directly appropriating the plotline, characters, and settings of
Gone with the Wind. Furthermore, Shakespeares literary corpus predates
U.S. copyright law, while Mitchell, who passed away in 1949, left her copy-
right intact to her relatives. When considering those elements, their dis-
parate receptions may seem reasonable.
In truth, the two conflictsreally, battles over ownership and com
pensationobfuscate more important matters.3 The Google Book case
2 I N T R O D U C T I O N
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echoes publishing battles several centuries old, centered on matters of
remuneration and recognition of rights.4 What has not been mentioned
or explicitly addressed is the prospect of books being served in slices, for
digitization represents a greater threat: the destabilization and fragmen-
tation of culture. In other words, culture becomes atomized, dynamic, and
on-demand, existing as a swirling maelstrom of data. Stakeholders, who
cannot help but see the world through the language of moral rights to
property and the authoritative, singular voice, may have a nagging sense
of unease but seem unable to pinpoint their discomfort with a polypho-
nous textual environment.
Although the legal dispute over the Google Book project is informa-
tive, this study is more concerned with its cultural meaning and impact
on an expansive historical scale. On one side stands the upstart Google,
representative of cultural digitization, and on the other side stand the
booksellers and artists, those married to extant modes of economy and
creativity. Specifically, publishers and writers adhere to concepts of intel-
lectual property and original authorial genius, which lead them to per-
ceive Google as a conduit for piracy.5 That is, Googles aggregation over a
digital network, with its unprecedented reach and speed, threatens finan-
cial return (an economic violation) and wrests control over property (a
moral violation). So beholden are the stakeholders to those twin concepts
that alternative frameworks are rendered inconceivable or existential
threats.
Like the Google Book project, the Randall case masks a more significant
ontological dispute. At first blush, the conflict seems to be centered, once
again, on matters of intellectual property, rights to fair use, and financial
damages. Both parties are again beholden to the ideology of authorship,
but the larger matter at hand is the dismantling of authorial integrity.
Whereas the Mitchell Trusts want to preserve the sanctity of Mitchells
original vision, Randall has no such incentive, nor is she beholden to
Mitchells legacy. Both cases are really about a centralized singularity in
the author figure or vision, but the present landscape for creativity is rap-
idly moving toward fragmentation, decentralization, and multiplicity.
As distinct as the two cases may be, a cursory glance relegates both of
them under the purview of intellectual property lawauthors protesting
unsanctioned use of their creative efforts without permission. But dig a
bit deeper and you will find a larger conflict over the distribution of cul-
ture. In the case of the Google Book project, the threat was its expansive
reachbeyond the control and domain of book publishers. With Randall,
I N T R O D U C T I O N 3
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her publishers fought not only for her right to use Mitchells work but for
access to the publishing distribution network so that her book could stand,
side by side with Mitchell, on bookshelves. Undergirding the lawsuits is a
tangible panic over the loss of distributive control, which, down the line,
may effectively loosen their grip on culture writ large.
This study peers behind the combative rhetoric and histrionics to uncover
a mode of cultural production that interjects, interrupts, intervenes; it is
derivative, dialogic, and disruptive. A seismic shift is afoot, from singular
to collaborative creativity as the economic and infrastructural basis for
cultural production transforms.6 Whether the solitary authorial genius ever
truly existed is a subject often discussed by poststructuralist theorists, but
the single-author concept strongly persists in the public consciousness,
which influences policy.7 However, this is a moment of infrastructural re-
configuration; subsequent legal reactions to those changes; and, perhaps,
the recognition of another mode of creativity. To crystallize coterminous
and often contradictoryphenomena from literature, law, and networks,
I propose a disruptive textuality, a condition that has always been pres-
ent, hovering in the margins, ostracized or neglected because of a collec-
tive amnesia, a condition that reemerges with a confluence of cultural,
infrastructural, and social shifts away from centralization, singularity, and
the linear. The cultural stakes are high. For to continue unabated in the
established trajectory would mean a steady march toward stasis. That much
of the discourse around the protection of vested interests is shrouded in
moral outrage at times makes it difficult to separate the attendant issues
at hand. However, if this mode of cultural evolution continues to be out-
lawed and discouraged, I argue that the literary and cultural landscape
will lose out on a valuable form of production. It is a fragile and tenuous
thing; it must be jealously guarded and carefully cultivated. The first step,
however, is recognizing its existence and its right to exist. By naming and
concretizing the aforementioned mode of production and the political
and cultural ramifications of its diminishment or growth, disruptive tex-
tuality as an environment becomes much easier to conceptualizeand,
therefore, protect.
A disruptive textuality operates on a different kind of logic. It openly
acknowledges source texts and the right of successive texts to perform
alterations; it aims to expand and alter in iterative rather than paradigm-
shattering moves; and last, it tends to revel in complicating and prob-
lematizing rather than claiming centrality. At the root of disruption lies
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an internal force that drives literatures production, consumption, and
reproductionthe dialogic engine, integral to a literary theory that thrives
on the perennial destabilizing of the center by mutative elements. I would
argue that the dialogic impulse is something that is innate, the latter com-
ponent in the call-and-response dynamic. It is something that has always
been and always will be. The difference, however, is that the dialogic imag-
ination is surrounded by contracts and architecture, social and legal, that
determine its strength, reach, and efficacy. Disruptive textuality is more
a political vehicle, a wrapping to tie together disparate legal, theoreti-
cal, and structural threads to protect and promote the dialogic impulse.
Illegal Literature: Toward a Disruptive Creativity considers the dialogic
imagination in the contemporary period on a macrotextual scale.8 That
is, literary and cultural development is a struggle between subcultural and
canonical texts influenced by constructs such as intellectual property and
distribution networks rather than an internal linguistic tension, as Bakhtin
originally articulated. Over time, the dialogic engine has stalled in the face
of two limiting factors: intellectual property law and centralization of dis-
tribution. First, developments in copyright law have coalesced cultural
ownership and control. Copyright laws vague fair use clause and lengthy
terms, coupled with the idea of authorial control and increasing litiga-
tion, can make engaging in literary parody and/or creative remixes
often a recontextualized pastiche for aesthetic, critical, or humorous
purposesa dangerous affair. Second, centralized distribution creates a
vertical structure limiting the circulation of works. Decentralized networks,
however, have the ability to return high-activity dialogism to the fore. Using
the current legal anxiety surrounding digital networks as a focal point,
this book attempts to situate the conflict as part of a larger system of cul-
tural development and, furthermore, reframes that rupture as an oppor-
tunity to examine the ontology of literary development. I situate my study
through the sphere of law and networks because they are the sites with
the sharpest and clearest lines of discordance.
Although the dialogic engine cannot ever be completely halted, the
tension between infrastructure and policy can create a severely viscous
environment. The question is, what balance between them is best for
literary culture? I argue that the proliferation of extralegal texts, despite
tightening copyright law, signals a shift in cultural logic resistant to cen-
tralization of distribution and control; instead, decentralized architecture
promulgates a more efficient exchange benefiting literary and cultural
development.
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Disruptive in Theory
The term disruptive is not without literary precedence. Jerome Klinkow-

itzs Literary Disruptions: The Making of a Post-contemporary American
Fiction (1975) makes the case that a spate of recent fiction writers have
broken away from American realism, thereby disrupting reified generic
forms largely through innovative form and technique. The more popular
usage, however, comes from the technology sector, in which disruptive
has come to mean paradigm-shifting technologies or products that can-
nibalize or create new markets, rendering a preceding technology obso-
lete. Whereas to be disrupted once struck fear into the hearts of major
players in the tech sector, it is now embraced as part and parcel of the
industry, to the point that tech companies try to anticipate and court
innovative products. In management studies, business schools theorize
disruption as part of the neoliberal tradition of creative destruction, a
capitalist condition requiring constant innovation to survive.9 Business
students study cases of technological ruptures as cautionary tales stress-
ing the need for forecasting and adaptation to retain a competitive edge.10
Whereas disruption in technology and business is largely driven by the
market and consumer tastes, in this study I frame literary disruption as
being driven by the advancement of culturethrough form, genre, criti-
cism, ideology, and politics. That is not to say that the dynamics are wholly
dissimilar; the troubling commonality I detect between business and lit-
erary production (which, if we are being truthful, is run as a business) is
the emergent practice of stifling innovators and upstarts who threaten
established practices and forms because they do not follow acceptable
models of creativity. Douglas Rushkoffs novel Exit Strategy dwells on this
very subject both textually and metatextually. Largely an experimental
foray into open-source fiction writing, Exit Strategy threatens to upset
authorial paradigms with its very existence, inasmuch as the protagonist
attempts to bring to market a software program called TeslaNet, which he
believes will revolutionize the telecommunications industry. Instead, be-
cause the technology does not neatly conform to the existing economic
structure, his corporate presentation is met with hostility, castigated as a
category killer, an irresponsible act of piracy, and just another open-
source nightmare.11 It is the little-discussed underside of disruption, a
double logic of desire and repulsionthe desire for innovation coupled
with a hostile wariness of anything that threatens extant business mod-
elsa pattern repeated in literary production, that this study finds most
troubling.
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Therefore I appropriate (or poach, coopt, claim, transform, deform)
disruptive to articulate the three vectors of this books ultimately human-
istic argumentall of which seek to disturb reified practices. First, dis-
ruptive textuality conceptualizes a textual condition that acknowledges
and even embraces continual upheaval as part of the literary process
driven by the dialogic engine. Contingent on the first, the second vector
necessitates revisiting notions of authorial ownership and property rights,
which clashes with existing legal policies. Third, this project dwells on the
disruptive nature of decentralized network logic, which multiplies and
escalates the preceding two components. Furthermore, the nature of lit-
erary disruption is not nearly as abrupt, dramatic, or visceral as technol-
ogyin which obsolescence may occur from one generation to the next;
instead, literary disruption may occur incrementally and in an accretive
manner. What may be most disturbing, I suggest, is the conceit of text as
multiplicity and the authorestate as unsanctified.
Part of the challenge in considering the value of disruptive texts is over-

coming cultural biases. After all, how can there possibly be any value in
such flagrant violations of existing laws and norms? There is a long his-
tory of politically or ideologically subversive literature, but literature that
seems to directly target the integrity of coeval artists works through
minor mimesis appears distasteful. Two key points may help in articulat-
ing a mode of creativity deemphasizing the author figure, pitting canoni-
cal and noncanonical forces in a tension-filled relationship, and stressing
the importance of derivative works, much of which could be considered
of marginal value. One, I prioritize the long view of literary development
over time rather than the snapshot of a single generation or authors life-
span. Two, I argue that the internal engine driving distortive, accretive
literary innovation is a historical condition.
Raymond Williams offers a possible formulation that initially seems to
resolve many of the deficiencies of our modern understanding of literary
production, a dynamic of cultural struggle consisting of three compo-
nentsthe dominant, the residual, and the emergentthrough which lit-
erature creates new meanings, values, practices, and relationships. In his
conceptualization, it is class struggle that explains how literary culture
evolves over time. Moreover, when he cautions us to beware of the epochal
analysis, he foretells the dangers of an overdetermined sense of authorial
weighteverything that comes before and after is measured, judged, and
integrated into the narrative of the dominant, something of a common
occurrence in literary studies:
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This [selective inclusion/exclusion] is very notable in the case of versions of
the the literary tradition, passing through selective versions of the charac-
ter of literature to connecting and incorporated definitions of what litera-
ture now is and should be. This is one among several crucial areas, since it
is in some alternative or even oppositional versions of what literature is (has
been) and what literary experience (and in one common derivation, other
significant experience) is and must be, that, against the pressure of incor-
poration, actively residual meanings and values are sustained.12
It is therefore vital that we use the term dominant in terms of hegemony

rather than definitively. In other words, Williams argues for the recogni-
tion of these classes as descriptors rather than conditions sui generis. Most
significantly, Williams acknowledges how liminal activity beyond the pur-
view of the dominant narrative constitutes a crucial, if at times inarticu-
lable, component of emergent culture:
Cultural emergence in relation to the emergence and growing strength of a

class is then always of major importance, and always complex. But we have
also to see that it is not the only kind of emergence. This recognition is very
difficult, theoretically, though the practical evidence is abundant. What has
really to be said, as a way of defining important elements of both the resid-
ual and the emergent, and as a way of understanding the character of the
dominant, is that no mode of production and therefore no dominant social
order and therefore no dominant culture ever in reality includes or exhausts
all human practice, human energy, and human intention.13
So even within Williamss formulation, there are blind spots that cannot
account for peripheral or dark nets of production; they are unaccounted
for because they may be impenetrable, or they are actively ignored because
they do not perform within established patterns. However, this vacuum
goes unexplained in Williamss model.
To account for the spaces of absence and to circumvent the conceptu-
alization of literature through the lens of the author figure (epochal, in
Williamss terminology)and the infrastructure that reinforces itI use
a formalist approach to construct a theory of literary development stress-
ing collaborative accretion. Considering the dialectic between canonical
and noncanonical tension as part of a larger dynamic, I use the term canon
in two ways. The first is macrostructuralthat which is currently at the
center of a dynamic system of literature. The second use is microstruc-
turala tacit acceptance, legal or otherwise, of a works history by either
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the copyright holder or a readership. Noncanonical, as it relates to the
first use of canon, relates to material located in liminal spaces. In terms
of the second use, noncanonical refers to uninvited texts imposing them-
selves on an established relationship, resulting in a range of possible re-
actions from readers, copyright holders, or both. As Itamar Even-Zohar
has suggested, considering literary systems as closed structures neglects
one-half of the discourse. Instead, he offers a model, which he calls poly-
systems theory, that frames literature as an evolving, fluid organism rather
than a fixed organizational system. Building on the work of M.M. Bakhtin
and the Russian formalists, he argues that literature is a dynamic and het-
erogeneous system emphasizing a multiplicity of intersections and vertices.
More importantly, in focusing on interrelationships and intertextuality
rather than the texts themselves, polysystems theory necessarily rejects
any form of value judgment as a criterion for an a priori selection of objects
for study.14 In other words, canonical texts and noncanonical texts are
neither good nor bad but rather are reflections of a particular periods
set of norms and the literature that mirrors them. What is at center in one
period may move to the periphery in the next, and vice versa. As with
Bakhtin, Even-Zohar concentrates mainly on overlapping and interacting
sets of texts marked by linguistic differences, but we can also apply the
model to tension as an agent of change. More important than discerning
value, the kind of relationship each strain of literature has with one another
and what can be learned from those ties is of central interest. He writes,
As with a natural system, which needs, for instance, heat regulation, cultural
systems also need a regulating balance in order not to collapse or disappear.
This regulating balance is manifested in the stratificational oppositions. The
canonized repertoires of any system would very likely stagnate after a cer-
tain time if not for competition from non-canonized challengers, which
often threaten to replace them. Under the pressures from the latter, the can-
onized repertoires cannot remain unchanged. This guarantees the evolution
of the system.15
This tensionthe constant competition from non-canonized challen

gersspurs innovation and adaptation to remain in power. In other words,
there should be space reserved for subversive, distinct elements for a
healthy cultural system to avoid stagnation. When a group reaches can-
onicity, it takes a stabilizing role:
Once canonicity has been determined, such a group either adheres to the
properties canonized by it (which subsequently gives them control of the
umpRoh.indd 9 27/10/2015 3:10:17 PM

polysystem) or, if necessary, alters the repertoire of canonized properties in
order to maintain control.16
Formalism tends to investigate literary tension within language and a self-

contained text removed from external elements; however, in my view, it
becomes necessary to consider greater structural factors when applied to
a broader intertextuality.
It would be sophistic to reduce a complex set of working actors and
agencies to a homogenous singularity. There are actually myriad stake-
holders working in conjunction, spurred on by economic incentives and
culturally based interpretations of legal policy, creating the appearance
of sentience. Authors fight to retain creative control over their material;
literary agents look for similarly themed works in hopes of replicating past
success; and the intellectual property regime protects those works and
artists from economic damages. All of these agents are driven by different
goals, but as a collective, they strengthen and uphold canonicity, creating
the impression that the canon appears invested in keeping itself in the
center. Subcultural agents, in the form of disruptive signals, challenge the
centers authority, which, according to polysystems theory, actually ben-
efits the center. A certain degree of regulated change to the set of laws and
elements governing the production of canonical textswhat Even-Zohar
calls repertoirekeeps the canon fresh and active. The texts themselves
make up one-half of the literary system, with the repertoire determining
the production of those texts making up the other half. Tension, in the
form of peripheral repertoires and texts, acts as a systemic catalyst.
Likewise, Russian formalists theorized in the early twentieth century that
the struggle between competing interests spurred literary development.
For a work to be considered valuable and relevant, it must distinctively
contrast with its predecessors in interesting ways. Specifically, systemic
formalists argued that the work of art was part of a struggle between com-
ponents for domination and foregrounded the value of aesthetic form as
a contextual matter. In other words, art was part of a larger system of
dynamic relationships; the work of art was defined against its historical
and generic ties. In a system where literary creation is not immune to the
inexorable passage of time or the pull of habit, writes Victor Erlich, art...
cannot afford routine. This is what makes literary change so crucial.17
Thus the quality of divergence (Differenzqualitat) becomes the highest
measure of maintaining aesthetic value.18 In presenting a theory of inno-
vation and change to distinguish classes of poetry, Ralph Cohen stresses
1 0 I N T R O D U C T I O N
umpRoh.indd 10 27/10/2015 3:10:17 PM

the importance of juxtaposing forms to discern difference; change and
innovation are measured against a historically qualitative context and,
more importantly, the ties that forge difference. It is not surprising, then,
that the formalists stressed the importance of literary appropriation, par-
ody, and subcultural elements in promoting divergence. They understood
that the practice of literary borrowing was more than simple transference;
rather, it was transformation. They situated parody as a reordering and
highlighting of hierarchies:
The old is presented, as it were, in a new key. The obsolete device is not
thrown overboard, but repeated in a new, incongruous context, and thus
either rendered absurd through the agency of mechanization or made per-
ceptible again. In other words, a new art is not an antithesis of the preced-
ing one, but its reorganization, a regrouping of the old elements.19
The act of regrouping renders the transparent opaque and the opaque
transparent, recasting the form in a critical light. Moreover, they made no
distinction between skilled and unskilled attempts at appropriation, as
long as it was transformative and elicited a response:
[Formalists] extended the scope of historical investigation to include mar-

ginal phenomenaobscure or half-forgotten writers, mass production, and
sub-literary genres. Literature, the Formalists argued, is not a succession of
masterpieces. One cannot understand the evolution of literature or assess
any period in its history without taking note of the second-and third-rate.
For one thing, masterpieces can be recognized as such only against the back-
ground of mediocrity. For another, failure can sometimes be as important a
factor in literary dynamics as success. Abortive or premature thrusts in the
right direction, while unimpressive in themselves, often foreshadow or pave
the way for resounding triumphs and thus are of crucial importance to the
literary historian.20
Thus equal attention should be given to derivative texts and parodic writ-
ers, because deformations, though they may be of dubious aesthetic value,
contribute to the whole of the system of texts.21 This requires a shift in
thinking, for it is more common to subscribe to the idea of original genius
when considering the merits of a creative work and to deride derivative
works as parasitic and uncreative. However, I argue that that is an unpro-
ductive view; instead, a work should be valued for its derivation, however
small, however insignificant, because it is the sum of change, over time, not
the single text, that matters most. Nor should literature from the fringes
I N T R O D U C T I O N 1 1
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be ignored until it proves its worth, because, as Victor Shklovsky posits,
when the canonized art forms reach an impasse, the way is paved for
the infiltration of the elements of non-canonized art, which by this time
have managed to evolve new artistic devices.22 Innovation and change,
the engines of literary evolution, are located in the accreted mass of lim-
inal activity.
Formalism, as I have described, and its incompatibility with the pres-
ent state of literary production, can be summarized thusly. First, the author
is deemphasizedthe work exists apart from authorial genius, contra-
dicting much of the current basis for cultural production and its economic
structure protected by copyright law. Indeed, formalist theory received its
harshest criticism for its diminishing of agency and social influence, and
for emphasizing indiscriminate, almost spontaneous generic shifts in-
dependent of individual actions, which is counter to the ideology of the
author.23 Second, for formalism to work, canonical and noncanonical
voices have to be granted similar venues for expression, something that
is not explicitly addressed. Noncanonical works will not function as regu-
lating devices if they do not have access to some kind of platformsuch
as a distributed electronic networkwhich is antithetical to the central-
ized structure of current literary and cultural distribution practices. Last,
formalism spurns traditional value judgments of literary aesthetics, focus-
ing instead on the broader cumulative effects of marginal, iterative changes
in style, genre, and contentthere is no good or bad literature, just
Differenzqualitat. This, above all, probably presents the most challenging
component of this project, requiring a change in the logic of evaluating
aesthetics.
I propose recasting the formalist model as a mechanism for creativity
rather than as a deterministic force; simply inverting the author-centric
model and stressing the importance of generic form can be limiting and
reductive. Instead of arguing that masterful works spontaneously emerge
through generic shifts, I stress the value of destabilizing canonicity at a
constant rate and the establishment of a productive environment that
facilitates such perturbationsthe titular disruptive textuality. Disruptive
textuality calls for the deprivileging of the established author rather than of
the author figure itself; it needs equilateral access to the distribution net-
work to maximize the efficiency and reach of the dialogic tension between
canonical and noncanonical; and finally, it creates space for aesthetic
judgments but equally values subversive or divergent creations for their
small but powerful contribution, in the aggregate, to literary development.
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This is not another mode of intertextuality; rather, disruptive textuality is
very much grounded in the material practices of literary productions,
which leads to this books focus on more concrete infrastructural and pol-
icy matters.
Disruptive textuality conflicts with the prevailing culture of literary pro-
duction, contingent on an intellectual property regime that values origi-
nal authorship above all else and denies access to distribution networks
unless a good work qualifies as original enoughmeaning an economic
nonthreat. If a work, as most noncanonical and subcultural texts are wont
to do, fails one of these conditions, then it generally encounters the first
of two massive barriers: the law.
Closing Legal Precedence
The relationship between law and literature can be described as regula-

tory; the law ensures that the balance between free speech, creativity, and
economic incentives does not lean heavily in favor of one over the other
in literary production. In the past, law and literature struck a productive
balance that allowed, and even encouraged, a dialogic dialectic. However,
that has come to change for two main reasons: the skewing of the law
toward the ideology of authorial genius and its adoption of stringent mea-
sures due to the threat of an electronic network. In its current form, the
law privileges the author and denies subcultural voices access to distri-
bution channels. Formalist dialogism, in the modern legal climate, has
little recourse but to be extralegal.
Legal policys most visibly regulatory encounters with the dialogic
engine come in three forms of disruptionat times unfairly confused as
being one and the samethat also happen to provoke the most amount
of ire from authors and publishers: piracy, plagiarism, and parody. Whereas
much attention has been paid to the unsanctioned replication of copy-
righted material and the measures taken to curb said behavior, I am more
interested in the prosecution of parody rather than plagiarism or piracy.
Neither piracy nor plagiarism seeks to actively transform the literary rela-
tionship between author and reader. Piracy attempts to remain faithful to
the original text, with errors occurring because of constraints in time and
resources. Likewise, plagiarism, in the purest sense, makes no attempt to
actively invoke the original author; it is instead an attempt to pass off
another work as ones own. Parody is the more intellectually compelling
subject because parodic writerscreators usually invoke the fair use clause
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for protection, thereby stretching the boundaries of copyright and atten-
uating the integrity of the author body. Piracy, and to a lesser degree pla-
giarism, transfers material without the explicit consent of the copyright
holder or author and thus fails to participate in any philosophical discourse
about the nature of that violation. Parody, conversely, ontologically engages
intellectual property law by asking the courts to inspect the fair use clause
to determine if it applies to particular cases. Unfortunately, it is piracy that
engenders the more reactionary of policy shifts.
That is not to say that such practices are completely bereft of value
both piracy and plagiarism arguably strengthen the author figure. Piracy
once had a strong foothold in the market; in sixteenth-century Europe,
unauthorized editions outnumbered authorized texts ninety to one.24
Piracy put cheap editions of books on the street, but fidelity was often a
question; errata abounded, and a reader could never be certain if the text
was actually authored by the author whose name was printed on the
cover.25 With the reputations and quality of the printers products at stake,
printers were forced to observe rules of publishing propriety and stan-
dardize their methods with a rigorous error-checking process.26 Errata,
competition from pirated works, and economic damages spurred print-
ing houses to streamline and strengthen their practices to create a quality
brand that could be trusted. Likewise, plagiarism, once discovered, forti-
fies the original author and text as originary, and the plagiarist earns scorn
and contempt.27 Paradoxically, the uncertainty surrounding transgressive
forms that do not openly distort but attempt to remain true to the source
augments the integrity of originality.
The effect of parody, with its long, rich tradition, is more complex. The
first instance can be found in chapter 2 of Aristotles Poetics, in which he
refers to parodia, a mock epic poem written in the style of Homer. The
earliest surviving example from ancient Greece is an Athenian fifth century
bce mock epic titled Batrachomyomachia (Battle of the Frogs and Mice),
with the earliest example of travesty being Euripedess Cyclops, a rendi-
tion of the Cyclops episode in the Odyssey. Parodys popularity continued
in medieval England, where many parodies surprisingly focused on sacred
textsthe Bible and liturgy.28 Contemporary examples of literary parody
span a wide range with variations in purpose, but some of the more conten-
tious material unsettles parodied authors and their estates (see the follow-
ing chapter). Within parody are various subdivisions (e.g., travesty, pastiche,
burlesque, transposition, ski, forgery), and there has been considerable
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scholarly debate regarding whether a transhistorical, expansive definition
of parody is even possible.29
Although parody may be commonly perceived as being definitively
transgressive, there is considerable debate whether that is actually the
case. In fact, like piracy and plagiarism, rather than perverting or diluting
a target text, parody may actually have the opposite effect. Linda Hutch-
eon argues that parody has an ability to uplift the target text by function-
ing as a conservative force in both retaining and mocking other aesthetic
forms; but it is also capable of transformative power in creating new syn-
theses.30 In other words, parody can both reinforce and transform the tar-
geted canon. Distortions, corruptionthese elements actually strengthen
a literary signal.
There is statutory recognition of parodys cultural valueit remains
part of the fair use clause in copyright code. Parody dialogically interrupts,
divides, parses, alters, transforms, and evolves texts and their relationships.
The finely conditioned channel of literature that would normally be pro-
tected by publishing filters and legal practices has to allow for some dis-
tortive signals to infiltrate the system. Readers, who have learned to trust
the authority of print and major presses, look askance at suspect texts
unless they compel them to rethink material with transformative aplomb,
wit, or humor. But an increasingly stricter interpretation of the law and a
confusing of parody with plagiarism, along with stronger copyright, dis-
allow readers from making their own decisions in that regard.
What, then, is the disruptive value of parody? In Bakhtins dialogic imag-
ination, parodic speech serves an important function. Literary parody cre-
ates space in which an author can write against the grain, to run counter
to the dominant voice, to complicate still further his relationship to the
literary language of his time, especially in the novels own territory.31 It is
the sensation of the uncanny that begs the reader to pause, rethink, and
revisit old paradigms, so it is in the best interest of literary culture to sanc-
tion and even encourage the parodic text to drive literary development
forward. Furthermore, what constitutes parody does not remain static,
for the subcultural and canonical are caught in the eddying flows of ten-
sion. Parody, Bakhtin asserts, is contextually and historically specific:
Thus a parodic quality... may under certain circumstances be easily and

quickly lost to perception, or be significantly weakened. We have already
shown how parodied discourse, in an authentic prose image, can offer internal
umpRoh.indd 15 27/10/2015 3:10:17 PM

dialogic resistance to the parodying intentions. For the word is, after all, not
a dead material object in the hands of an artist equipped with it; it is a living
word and is therefore in all things true to itself; it may become anachronous
and comic, it may reveal its narrowness and one-sideness, but its meaning
once realizedcan never be completely extinguished.32
Perhaps its slippery nature contributes to the difficulty in defining the

parodic function. As a form that is culturally, historically, and contextu-
ally specific, parody slips in and out of its designated role depending on
a multitude of elements. Furthermore, whether parody is truly considered
transgressive is beside the point. The parodic text, as Hutcheon suggests,
may end up strengthening a target text rather than diminishing it, but
what is of importance is that those deformationsthe swerve, to bor-
row from Harold Bloomare allowed to take place as part of the cultural
conversation occurring over generations. Ironically, it is parodys robust
nature that has led to its diminishmentparody is increasingly criminal-
ized, like piracy, because the law places the burden on the parodic writer.
I had written that parody is one of several forms of expression pro-
tected under the fair use clause of copyright. However, it is at best vague
and written to be open to interpretation, which has the unfortunate effect
of making each instantiation contestable. As I discuss at length in the next
chapter, a fundamental conflict resulting from the fraught and convoluted
history of copyright has resulted in a law that privileges economic inter-
ests over freedom of expression, to the point of making each instance of
fair use disputable and therefore a high-risk affair.33 Furthermore, acts of
parody, remix, mashup, and wholesale piracy are often clumsily thrown
together as being one and the same, which can have unforeseen conse-
quences, as evidenced by Laura Murrays study of plagiarism and copy-
right infringement in academic circles. Murray catalogs the deleterious
effects of a similar conflation; her study shows how there is often a failure
to recognize that plagiarism and copyright infringement are transgres-
sions against two distinct but overlapping economies of knowledge: cita-
tion systems and market systems.34 Consequently, academic research
(and, by extension, knowledge production) suffers because academic in-
stitutions install draconian, ill-informed copyright policies that are mar-
ket rather than citation based. Likewise, acts of parody seem to function
on a different economy than the target textsa cultural economy. How-
ever, if imaginative literature and the arts consider deformative works as
having little to no cultural value and view them primarily as pecuniary
umpRoh.indd 16 27/10/2015 3:10:17 PM

threats, then there is little incentive to distinguish between these nuances
and even less to protect them.
Thus textual disruption has been burdened with an increasingly strict
interpretation of law influenced by the ideology of authorship. Whereas
curbing piracy make sensepiracy upsets economic models of creativity
without directly contributing into the cultural poolputting parody in
the same category does not. Parodys primary function in disrupting cul-
tural models should override ancillary effects on markets, which is largely
speculative rather than empirical. As it stands, an entire cottage industry
of subcultural voices driving the evolution of a polystemic canon has
been outlawed and relegated to the margins, which constitutes the sec-
ond barrier slowing cultural development: inaccessible distribution. For-
tunately, something has come to destabilize legal strangleholds choking
the flow of extralegal materialsthe decentralized, distributed, electronic
network.
Opening the Network Channel
Open communication networks can be difficult to navigate. When a per-

son speaks in open space, any number of interferences may occur. Horns
blare; dogs bark; adjacent conversations distort the vibrations emitting
from a speakers vocal cords. To compensate, we employ methods of
strengthening fidelity and install redundancya person in a crowded room
may cup her hand over an ear in the direction of a speaker and scrutinize
a persons mouth movements and body language to see if they match with
the received auditory signals. Centralized systems are easier to control.
Closed circuits and higher-quality material might come close to producing
perfectly secure broadcasts. But even centralized systems have to deal with
interruptions. A strong thunderstorms electrical activity may interrupt a
television broadcast; conflicting frequencies may block a radio signal;
faulty hardware can corrupt data. Most of these are haphazard occur-
rences, a consequence of the imperfections of engineering.
Support for centralized systems comes in the form of auxiliary systems.
A mischievous hacker might disrupt the normative flow of information
from a media network to the consumer by pirating a signal to replace the
broadcast with one of his own. Such disruptions spur stakeholders to
strengthen and perfect signal transmissions; such moments of disruption
constitute internal competition imbuing a need to tighten control. In these
cases, when structural safeguards fail, external regulations and bodies step
umpRoh.indd 17 27/10/2015 3:10:17 PM

in to prosecute violators. The FCC slaps violators with penalties; the law
makes arrests; the courts hand out punitive sentences.
Consider Brazils media regime. Under repressive military rule between
1964 and 1985, the Brazilian government instituted draconian media poli-
cies. Television stations, radio broadcasters, and newspapers were required
to send materials to censors for approval, which many in the industry
resented. To subvert censorship, journalists began printing poems, blank
spaces, and cooking recipes in lieu of articles that would have been re-
dacted. Befuddled readers, some of whom had attempted to follow the
recipes and found them incoherent, called the newspapers demanding
an explanation. At that point, journalists had the opportunity to commu-
nicate what was actually occurring in their country.35 Incongruous mate-
rials signaled readers to another channel of communication consisting of
something more valuable than what was officially sanctioned. Disrupting
a channel with static presented an opportunity for political subversion
through another means of communication. For most, noise is just that: a
cacophonous incoherence. For others, it may be a beacon signal, a politi-
cal act of rebellion, an alternative frequency. Discontented individuals
managed to find a means to communicate, but it was weak, slow, and eas-
ily stopped. The Brazilian government used its auxiliary forces to enforce
its policy.
The literary distribution network in its current form is strongly central-
ized. It has an immense and wide diversity of texts, but those same texts
have to advance through a gauntlet of gatekeepers before being granted
access to official channelsbookstores, online warehouses, libraries, and
so on. The gatekeepers serve an important function; they weed out the
chaff and filter works that fail to meet a standard of quality, libelous or
irresponsibly inflammatory material. However, the gatekeepers also reject
works that might infringe on others or that do not contribute enough
originality; that is, centralized distribution discourages disruptive texts.
Subcultural voices might find alternative means of publication and dis-
tribution, butas with Brazils subversive reportersit is viscous, lim-
ited, and easily stopped.
But what of a network that actually invites disruptive signals? What
happens when a network welcomes, and even fosters, disruption? As
Yochai Benkler notes in The Wealth of Networks, such a structure would
allow for an increasing role for nonmarket production in the informa-
tion and cultural production sector, organized in a radically more decen-
tralized pattern than was true of this sector in the twentieth century.36 In
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other words, the advent of decentralized networks facilitates and escalates
disruptive forces. Upending the traditional hierarchy enjoyed by a cul-
tural production system, decentralized networks threaten the economic
structure born from intellectual property law; they diminish the cul-
tural privilege of the author figurenonmarket production, in Benklers
nomenclature. As a result, Benkler argues, these new patterns of produc
tionnonmarket and radically decentralizedwill emerge, if permitted,
at the core, rather than the periphery.... It promises to enable social pro-
duction and exchange to play a much larger role, alongside property-and
market-based production, than they ever have in modern democra-
cies.37 The distribution network is no benign vessel; instead, its architec-
ture creates the environment in which works may develop, live, and die.
I am, however, wary of technological (over)determinism. Instead of
characterizing the decentralized network as a monolithic noumenon plow-
ing through the globe, leaving the detritus of old paradigms in its wake, I
am cognizant of, and caution against, the tendency, as Lisa Gitelman
writes, of naturalizing, essentializing, or ceding agency to media... as if
media were a unified natural entity, like the wind.38 On the contrary, I
argue that it is both a reflection and instantiation of a particular cultural
trend that has long been in the making, and I place more value on the
culture that brought forth the early iteration of decentralized network
born of a particularly libertarian and collaborative software programming
community at a specific historical moment.
A cultural approach to media studies affords wider historiographic and
humanistic apertures for detecting technological blind spots. For exam-
ple, Paul Starr stresses the importance of constitutive choices in the for-
mation of media. That is, the unwieldy natures of social institutions and
the architecture of technical systems are too big for a singular vision or
design, but at certain momentsconstitutive momentsideas and cul-
ture, power structures, preexisting institutional legacies, and models from
other countries come into play in the formation of media.39 James Carey
reframes communication as a coeval force in the formation of society, not
only in the transmission of messages, but in the representation and
expressions of belief systems through ritual exercise.40 If media are indeed
mutable, then it is the process of cultural negotiation that shapes their
form and execution. Gitelman notes that media are very influential, and
their material properties do (literally and figuratively) matter, determin-
ing some of the local conditions of communication amid the broader
circulations that at once express and constitute social relations.41 For
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instance, the rapid changes that have occurred over the past twenty years
belie the wildly optimistic idea of the Internet as an uncontrollable and
immaterial frontierthe pendulum has swung to the point that it is argu-
ably now a medium of centralized control. However, I posit that the ideal,
if not the reality, of the network as distributed and decentralized contin-
ues to resist overt controllability and exerts strong influence over literary
and cultural development in three ways.42
First, the migration to decentralized, digital networks reframes litera-
ture according to the logic of informationa foremost concern among
criticswhich has a tendency to obfuscate the broader cultural conse-
quence: the weakening of authorial hierarchy. The worry of humanities
critics is understandable; whereas literature is imbued with historical
knowledge43 (as opposed to the ahistoricity of the postindustrial infor-
mation age), the electronic network was designed to transmit swaths of
decontextualized datadigital bits and bytes, ones and zeros. If we accept
Warren Weavers description of information as a measure of ones free-
dom of choice when one selects a message within a self-contained sys-
tem, then the content, whether semantic or not, is unimportant; the range
of possible choices is what indicates the level of information present.44
Most alarmingly, whereas literature comes with humanistic narratives and
historical qualities, information signals enumeration, fragmentation, and
immediacy. For example, long before the digital byte came to dominate,
Walter Benjamin had noted informations pernicious threat to the art of
narrative and storytelling:
This new form of communication is information.... The intelligence that

came from afar... possessed an authority which gave it validity, even when
it was not subject to verication. Information, however, lays claim to prompt
veriability. The prime requirement is that it appear understandable in itself.
Often it is no more exact than the intelligence of earlier centuries was. But
while the latter was inclined to borrow from the miraculous, it is indispensable
for information to sound plausible. Because of this it proves incompatible
with the spirit of storytelling. If the art of storytelling has become rare, the
dissemination of information has had a decisive share in this state of affairs.
Every morning brings us the news of the globe, and yet we are poor in
noteworthy stories. This is because no event any longer comes to us with-
out already being shot through with explanation. In other words, by now
almost nothing that happens benets storytelling; almost everything benets
information.45
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In sum, Benjamins description of information consists of the following
qualities: it is quickly confirmed (prompt verifiability), it is easily under-
stood and lacks artifice (understandable in itself), and it comes attached
with a prepackaged explication circumventing independent intellectual
activity (no event any longer comes to us without already being shot
through with explanation). These attributes, ahistorical, devoid of con-
text and form, and self-contained, he laments, have led to the demise of
storytellinggiving counsel through the art of oral narrativeand the
novel.46 If there is an uncanny familiarity to Benjamins rhetoric, it is be-
cause it undergirds much of the panicked responses to the Google Book
project and Randalls audacious fiction. However, I contest the notion
that the cultural logic of information necessarily means the demise of
historicity; the more radical change is an atomized culture and weakened
hierarchy inviting competing readings and deauthorizing literary works.
Instead, the more disturbing element is cultural, not necessarily techni-
cal. The culture that brought forth decentralized networks is quite differ-
ent from information logic as a dehistoricizing force.
Second, the formative logic of information invites active user parti
cipation to navigate through myriad Lyotardian little narratives. In the
absence of centralized narrative, decentralized polyvocality fills the void.
Digital communication channels and the ubiquity of electronic infrastruc-
ture withand this is an important distinctionsmart terminals at the
user end engender a mode of cultural production favoring information
transmission, the effect of which is that literature, still produced through
the manuscript submission and editing process, is distributed through
both physical hubs (such as markets and libraries) and the Internet.47 What
is of significance with the Internet is that it has enjoyed wider latitude for
user participation, with a single user being able to potentially reach a
large audience.48 With the Internet, the gatekeepers are considerably less
daunting. Financial, external, and, in particular, architectural barriers are
either relatively weak or easily overcome. Moreover, the tools for produc-
ing content online take only knowledge and the proper softwarewith
only rudimentary knowledge of HTML and access to a commercial web
host, one can surpass most hurdles.49 With an audience armed with a
means of production coupled with fairly open access with few barriers,
the Internet found a wealth of user-generated material before businesses
began to make commercial use of the Web.
Finally, the collective effect of rapid permutations will find itself increas-
ingly at odds with an auxiliary support system designed for fixity, or a much
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slower rate of change, which will eventually force that systems break-
down or adaptation. While in the print medium, material, editorial, and
legal factors protect and sanitize, decentralized networks have weaker or
inefficient safeguards. In contrast, the publication filtration process and
a fear of litigation keep most objectionable disruptions from reaching the
same distribution channels, relegating inconvenient distortions to under-
ground circles or other forms of media, such as graffiti.50 However, as his-
torically dominant print has been and continues to be, digital networks
should be taken seriously as sites of rapid canonical evolution. Although
in terms of protection layers, digital text is rapidly catching up with print,
it faces some unique challenges. In addition to intertextual disturbances,
digital networks contribute to the cacophony by granting space for com-
petition. Regardless of whether digital networks offer anything truly new
there has been significant debate whether the Internet is a revolutionary
new medium or simply the latest in a long line of technological ruptures
within the framing of an evolving canonical system of intertexts, digital
networks offer something unique: speed. The models and principles re-
main the same, but the rapidity of canonical production and destruction
is beyond anything that has come before.
Therein lies the tension. The electronic network as it has been popu-
larly perceived, creates space for polyvocality in structure and culture.
The digitization of culture follows the logic of information and fragmen-
tation to weaken authorial hierarchy; the dispersion of centralized narra-
tive invites user participation; and the speed of the network promulgates
a perennial gale of creative destruction at odds with the extant support
system. For a strong polystemic network of subcultural and canonical
strains to drive cultural development, an open network, with its loaded
implications, is needed.
I have tried to paint a clear picture of where literary production stands

and how it may change. This book meditates a shift toward a mode of
cultural production that has largely been criminalized and denigrated. I
funnel my analyses through the scope of law and the network because
they concretize some of the more diaphanous assumptions under which
literary and cultural development operates. This is most evident in the
moments of panic that have marked the late 1990s to the present, pro-
mulgated by technological rupture and assuaged by legal Band-Aids. This
study reframes those moments as an opportunity to scrutinize reified
presuppositions. I argue that a more comprehensive understanding of the
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relationship between canonical, subcultural, and architectural elements
may provide contextual background to construct an environment best fit
for literary development.
Part of my argument lies in the aforementioned shifts historical pre-
cedence. If the vehicle of literary culture is driven by a dialogic engine,
then the pressure needed to move the pistons is made up of two differen-
tial elements. How quickly the vehicle travels will be determined by the
degree of differenceor whether it is allowed at all. That tension, I sug-
gest, has always been present in the formation and circulation of culture,
but significantly diminished by a recent confluence of factorsthe rise of
the ideology of the author, an economic and distribution system designed
on the same premise, and a legal system that has swung strongly in favor
of content owners. Disruptive textuality reinscribes that historical condi-
tion in articulating a need for a more open exchange between subcultural
and dominant texts to spur literary development. Although there is space
enough for subcultural elements to enter the discussion, direct appropri-
ationmostly in the form of derivative textshas largely been subject to
hostility. Disruptive textuality posits a shift in perspective to detect value
in previously ignored derivations.
However, this book does not necessarily herald a revolution of the
system, the downfall of the publication system as we know it, or the over-
throwing of literary rule. Instead, it is a conscious call for policy, infra-
structural, and cultural choices to produce an environment conducive to
accretive derivations through the freedom to experiment. There is, in fact,
space carved out for these modes of disruptive practices. Parody, for exam-
ple, as discussed by Hutcheon, should optimally function as a dialogic
mechanism for deviations from canonical streams. However, as I argue in
subsequent chapters, those windows for production have been narrowed
into a pinpoint hole by legal precedence and cultural attitudes. Still, there
are signs of relaxing; there may be space in the vicissitudes of evolving
publication models to enfold disruptive modalitiessome publishing
venues openly court and foster relations with derivative texts, authorized
and unauthorized. And as I discuss in chapter 3, alternative models might
be able to coexist with current forms of cultural production.
Literary development does not exist in a vacuum; it requires extensive
infrastructure that has a regulating and shaping effect on the creative
environment. Legal policy, I suggest, is a major factor, as is the ideology
of authorship. In the literary genre, the most contested form of disruptive
textuality comes in the shape of parody, which has a long history and is
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the most powerful subversion of dominant canonicity. Intellectual prop-
erty law has developed into a system that actively discourages and pros-
ecutes dialogic activity. The correlative act of disruption would be to pursue
an intellectual property regime cognizant of the creative value of liminal,
extralegal subcultures.
The next major factor comes in the form of network architecture,
which can determine the acceleration or deceleration of dialogic activity.
Decentralizationthat is, nonhierarchical networkshas been touched
on in various forms by postmodern thinkers, but it is the electronic net-
work that captured the cultural imagination and abetted the escalation of
an online discourse and culture at terrifying speeds. It also undermined
centralization entrenched on multiple fronts, including the previous dis-
cussion of intellectual property law. Decentralization enacts an environ-
ment of disruption, calling into question comfortably held truisms.51
The problem, stated in simplest terms, is that the economic model of
creativity is based on the ideology of authorial genius; that, in turn, has
engendered a model of evaluating texts largely in isolation; and, conse-
quently, that leads to a limited distribution model that occludes and un-
dervalues open exchange between subcultural and canonical texts. This
book proposes to reevaluate old tenets and axioms with one criterion
what is best for literary culture in the long run? I suggest a threefold solu-
tion. First, we recognize the quality of divergence as a valid measure of
cultural evaluation. Second, we view cultural development with a wide
rather than narrow lens. Third, we recognize the value of embedding dis-
ruption by design rather than its discouragementand criminalization.
It would seem that a degree of disruption might in fact be a historical
(and necessary) condition of literary systems. In the following chapters, I
demonstrate how different forms of textual disruption assist in literary
evolution.
In chapter 1, I explore how copyright law regulates dialogic activity to

weaken disruptive textuality and analyze the relationship between intel-
lectual property rights and American literature in two recent copyright
disputes: Alice Randalls The Wind Done Gone (a parody of Margaret
Mitchells Gone with the Wind) and Pia Peras Los Diary (a novelistic re-
sponse to Vladimir Nabokovs Lolita). Feeling that they held the right to
cultural commentary, Randall and Pera attempted to exercise that right
against the wishes of the author estates. The Nabokov and Mitchell estates
both sued for copyright infringement, with the books eventually reaching
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publication after contentious public and legal debate. This chapter shows
how the extralegal forum grants refuge to subcultural voices and exam-
ines how the participants literary reading of the cases affected their legal
outcomes. I suggest that the tension between extralegal and canonical
textsthe original or copyrighted textsspurs literary development.
Chapter 2 shifts focus to underground writing communities that bor-
row from popular culture to influence canonicity. I compare American
fan fiction and do jinshi to illustrate how a favorable or unfavorable in-
frastructure and legal climate detracts from or encourages fledgling cre-
ativity. I argue that a generous legal policyrather than a protective one
may be of greater overall benefit. For example, the disparate reactions of
American and Japanese content owners to amateur fiction illustrate how
different policies affect industry development. Japanese publishers tac-
itly sanction do jinshi authors, which has resulted in a vibrant subindustry
acting as free advertising for borrowed works. In contrast, their American
counterparts generally disapprove of fan fiction, which limits the growth
potential for both parties. The importance lies not with which party pre-
vails but with the dialogic relationship that compels engagement and
adaptation.
In chapter 3, I shift focus to distribution networks and how they facili-
tate dialogic activity on intratextual and intertextual scales. The advent of
decentralized networks complicates the regulating effect law has on dia-
logic activity. Strongly centralized distribution channels throttle the dis-
semination of unsanctioned works. Digital networks widen output and
loosen control and for this reason have come under regulation to simulate
existing paradigms of control. More than a simple technological innova-
tion, distributed communications networks reflect a discernible cultural
shift in alignment with postmodernity. Using the XDA Developers open
source software community as a model, I evaluate how their carefully
curated environment employs a decentralized structurea form without
centerand analyze the resulting dialogic operability. That is, I argue that
the online network environment best reflects the cultural and architectural
roots of nonhierarchical dialogue conducive to rapid, iterative cultural,
and textual evolution. With a historical and theoretical survey of decen-
tralized networks, I show how the mechanics of nonhierarchical textual
exchange operate online and how that may benefit literary development.
umpRoh.indd 25 27/10/2015 3:10:18 PM

1
D E A D A U T H O R S , C O P Y R I G H T L A W, A N D
PA R O D I C F I C T I O N S
Hybridity, impurity, intermingling, the transformation that comes of new and

unexpected combinations of human beings, cultures, ideas, politics, mov-
ies, songs... Mlange, hotchpotch, a bit of this and a bit of that is how new-
ness enters the world.
Salman Rushdie, Imaginary Homelands
leg a l p o li c y pe r f o r m s a d e l i cat e b al a nc i ng ac t in regulating

cultural productionsit must take into consideration the needs of a read-
ing public for a rich, diverse pool of literary and artistic works, while at
the same time protecting the economic markets facilitating that exchange
as well as the incentives and rights of individual creators. This chapter
examines two literary case studies in which that balance has been skewed
by social, economic, and structural factors toward protecting the eco-
nomic interests of copyright holders, to the detriment, I argue, of the read-
ing public and the artistic creator. Literary parodies disrupt static literary
estates and legacies, propelling new perspectives, or take on antecedent
texts by directly engaging targeted readers. This is a necessary and impor-
tant function in the dialogic evolution of the literary system, one that
has been effaced and denied because it is economically or ideologically
inconvenient.
I examine two texts, Alice Randalls The Wind Done Gone and Pia Peras
Los Diary, both of which intertextually engaged copyrighted, well-known
worksbut I am more interested in how their works transcend literary
matters to contest author estates extratextually. Both authors faced legal
injunctions before publication, with both cases consisting of aggrieved
plaintiffs alleging literary theft and claims of financial damage. The
2 6
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defendants responded by seeking protection under the fair use clause of
copyright law, arguing that parodies and direct rejoinders were protected
creative forms. In a sense, the opposing sides held to two principles codi-
fied in copyright law: free speech (to encourage creativity) and protection
from intellectual property infringement (to provide economic incentives).
The stakes are high. Although these cases may reflect a singular dis-
cursive facet of literary development, it involves a disparate set of stake-
holders with seemingly antithetical interests. For instance, artists seek
protection from censorship with the right to free speech. At the same
time, other artists might feel strongly that freedom of speech, which has
limits, should not take precedence over protection from intellectual prop-
erty theft.1 On a more structural level, the U.S. Constitution articulates an
interest in the advancement of the useful arts and sciences.2 As an aggre-
gate, the reading public craves diversity in materials and cheaper, easier
access to information. At various times, each of these factions has enjoyed
preeminence in matters regarding copyright.
Conflicts such as these have consequences influencing the future of lit-
erary production. For instance, if the current practice of extending copy-
rights ad infinitum continues, how would successive generations of readers
be affected? One possibility might be a perennially frozen U.S. public
domain limited to works prior to 1923.3 Consequently, educational insti-
tutions might disproportionately emphasize teaching pre-1923 literature
because of the high economic burden of assigning copyrighted works to
students; this may be a de facto moratorium on the canonization of con-
temporary works.4 While there is immense value in teaching canonical
works, namely, Shakespeare, Blake, Milton, Wordsworth, and so on, the
canon should not remain immutable; but current copyright law discour-
ages institutionalizing texts after the early twentieth century. Now it would
be facetious to claim that literary production was ever an independent
process free of external influence; in medieval England, the writing pro-
cess was initially housed within religious institutions and succeeded by the
patronage system before transitioning to capitalism-based print.5 Strin-
gent copyright protection, it could be argued, is the economic rent re-
quired of the modern reading public to pay for unprecedented access to
literary diversity.
However, some readers and writers find such arguments unsatisfac-
tory. Randalls and Peras discontented writings thrust an army of lawyers,
judges, executives, and academics into the courts of public opinion and
law. Why did they insist on appropriating widely recognized primary
D E A D A U T H O R S , C O P Y R I G H T L A W, A N D P A R O D I C F I C T I O N S 2 7
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sources? What did they hope to accomplish? In searching for an answer,
I consider the stakeholders short-term gains and losses with the publica-
tion of Randalls and Peras works and take the long view apropos of the
cultural consequences of their court dispute. Randalls and Peras desire
to write for the subjugated was a highly personal affair; their resolve in
the face of strong opposition by author estates is understandable. Conse-
quently, their efforts may relax legal practices enough to afford others the
latitude to comment on or criticize protected texts. Yet a copyright policy
centered on economic protection favors established authors and their
works; matters of literature place a distant second. Protected by law, author
estates have little incentive to tolerate ideologically divergent takes on
their works; indeed, they may utilize copyright to suppress creative or even
scholarly discourse for the express purpose of safeguarding a particular
legacy. This chapter views copyright though a literary lens to measure the
consequences of such practices.
Literary Appropriation and Copyright
We need a historical perspective to determine how publishing practices

allow some to openly appropriate texts while precluding others. Three phe-
nomena require attention: plagiarism, parody, and copyright. Although
in our modern understanding of them they may appear immutable, they
were actually formed by a confluence of conflicting elements; my point
is that their respective developments should not be mistaken for an organic
process.
Central to the discussion is the a priori notion of literary reception as
a construct, whether by social practices and norms or by outside agents
engendering change. Consider how literature has developed over time. In
medieval England, texts were public artifacts surrounded by ritual and
religion.6 Reading consisted of audiences listening to passages being read
aloud by clergy; books were scarce, valuable items.7 This all changed, notes
Elizabeth Eisenstein, with the advent of the printing press, which pro-
mulgated a massive upheaval in literary culture by democratizing infor-
mation, growing capitalism-based industries around the distribution of
books as commodities, and shifting reading practices from public to pri-
vate.8 Adrian Johns argues differently, positing that a host of factors exter-
nal of technology built the book into an object that could be trusted.
Printed texts, Johns writes, were not intrinsically trustworthy. Fixity was
in the eye of the beholder, and its recognition could not be maintained
2 8 D E A D A U T H O R S , C O P Y R I G H T L A W, A N D P A R O D I C F I C T I O N S
umpRoh.indd 28 27/10/2015 3:10:18 PM

without continuing effort. At no point could it be counted on to reside
irremissibly in the object itself, and it was always liable to contradiction.9
Both agree that the literary culture of the past scarcely resembles its mod-
ern cousin. The production, reception, and reproduction of literature are
influenced or shaped by writing technologies, social norms, economics,
and politics. Similarly, legal factors may alter writing practices and pub-
lishing patterns. The importance of Peras and Randalls works lies in the
weight of their potential impact on literary production practices.
Why is literary borrowing controversial? After all, Randall and Pera join
a prodigious list of rogue writersShakespeare, Wilde, Eliot, and Coleridge
were celebrated thieves who lifted not only plots but entire blocks of
text from others, yet their respective expositions did little to diminish
their achievements.10 This might be partially credited to different attitudes
regarding plagiarism before the twentieth century.11 Siva Vaidhynathan
points out that when Mark Twain realized he had engaged in the uncon-
scious plagiarism of Oliver Wendell Holmes, he jokingly asked for abso-
lution during a dinner in 1879:
[Holmes] was... the first great literary man I ever stole anything fromand
that is how I came to write to him and he to me.... Two years before, I had
been laid up a couple of weeks in the Sandwich Islands, and had read and
re-read Doctor Holmess poems till my mental reservoir was filled up with
them to the brim. The dedication lay on the top, and handy, so, by-and-by,
I unconsciously stole it.... I afterward called on him and told him to make
perfectly free with any ideas of mine that struck him as being good proto-
plasm for poetry.12
Here Twain treats plagiarism as more a matter of professional discourtesy

than cardinal sina misstep in manners. His confession is made all the
more striking by the fact that he would go on to become one of the staunch-
est supporters of perpetual copyrights.
Psychoanalytical, postmodern, and legal theory widely acknowledges
literary borrowing as a valid practice, albeit under varying theoretical
rubrics. Harold Bloom refers to the poets plight in creating original work
plagued by revisionary ratios, a sense of inextricable claustrophobia
under the shadow of great artists and their works. Fredric Jameson dubs
modern writing pastiche, a condition arising from the death of the sub-
ject. The artist, he notes, of the present day will no longer be able to invent
new styles and worldstheyve already been invented; only a limited
number of combinations are possible; the most unique ones have been
umpRoh.indd 29 27/10/2015 3:10:18 PM

thought of already.13 Legal scholar Lawrence Lessig refers to cultural ap-
propriation as recombinance, arguing that the current generation of cul-
tural consumers follows Apples Rip, Mix, Burn slogan thanks to advances
in technology:
The technology that [Apple]... sell[s] could enable this generation to do

with our culture what generations have done from the very beginning of
human society: to take what is our culture; to rip itmeaning to copy it; to
mix itmeaning to reform it however the user wants; and finally, and most
important, to burn itto publish it in a way that others can see and hear.14
All three approaches implicitly decry the romantic idea of a solitary genius
culling substance from the ether; instead, creators invariably draw from
their predecessors.
Both cases discussed in this essay sought safe harbor under parody.
Rooted in a nebulous portion of copyright law dubbed fair use, parody
usually constitutes a creative work with an aesthetic, humorous, and/or
critical take on another work; it is designed in part to protect sectors such
as academia and criticism from litigation. Determining whether a work
qualifies as parody requires the four points of analysis enumerated in title
17 of the U.S. Copyright Act:
The fair use of a copyrighted work, including such use by reproduction in

copies or phonorecords or by any other means specified by that section, for
purposes such as criticism, comment, news reporting, teaching (including
multiple copies for classroom use), scholarship, or research, is not an infringe-
ment of copyright. In determining whether the use made of a work in any
particular case is a fair use the factors to be considered shall include
(1) the purpose and character of the use, including whether such use is of
a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copy-
righted work.
Fair use is designed to foster intellectual exchange and cultural growth.

Without the fair use clause, a harshly written critique citing or referencing
a work could technically invite an injunction from an aggrieved author.15
Common examples of fair use and parody in popular culture include MAD
magazine, which caricaturizes films, television shows, and public figures;
umpRoh.indd 30 27/10/2015 3:10:18 PM

Saturday Night Live, in which comedians skewer political figures, celebri-
ties, or other topical subjects; and, as a classic literary example, Alexander
Popes The Rape of the Lock, which stylistically mimes Miltons Paradise
Lost.16
Parodys efficacy depends on whether the source material is recogniz-
able enough to merit commentary. A parody of an obscure work would
fail to capture the attention of audiences; the original is required to be
part of the public consciousness before any comment of value can be
made. While commonly perceived as a humorous, mocking rendition of
an original work, parody has a complicated and ambiguous nature that
defies easy categorization. In his attempt to historicize parody, Simon
Dentith observes that
parodys direction of attack cannot be decided upon in abstraction from the

particular social and historical circumstances in which the parodic act is
performed, and therefore... no single social or political meaning can be
attached to it. In this respect, the question of the cultural politics of parody
is comparable to that of the cultural politics of laughter, which has likewise
been claimed both for anti-authoritarian irreverence and as a means of ridi-
culing and stigmatising the socially marginal and the oppressed.17
In other words, parody cannot be defined in a vacuum; one must take into
account social and cultural contexts to determine in which direction the
sting of its criticism aims. Although parody may be a means of transfor-
mation, the transforming depends on a moment in history and a position
in society that will inevitably changeand so does the transformed. In
principle, a work containing substantial criticism or recontextualization
of another should be protected under fair use, but because of parodys
fluidity, courts use the four-point analysis outlined earlier, making each
case unique and disputable.18 In a sense, it is natural for parody to invite
tension, because approval by the author of the original would undermine
its critical function.19
It could be said that both parties are correct to defend their interests.
Authors should have the right to protect their intellectual property by liti-
gating against literary theft, and new authors should be able to appropri-
ate material for creative purposes. However, their conflict is a contemporary
phenomenon. A cursory glance at literary history shows instances of both
plagiarism and parody not only by lower-tier writers but by some of the
most revered and celebrated authors, both past and present. Grumblings
about unoriginality did occur in the past, but legal infrastructure initially
umpRoh.indd 31 27/10/2015 3:10:18 PM

supported the publishers, whose first priority was to maximize profits.
Only after contentious debate and much legal wrangling did individual
copyright holders gain the right to protect their works. Today, outside of
poaching from public domain works, appropriative creativity faces strong
opposition. What has changed?
Evidence points to long-term developments broadening copyright law.
Since the first national American Copyright Act of 1790, acts in 1831, 1870,
1909, 1976, and 1998 expanded the scope and length of copyright.20 The
year 1998 is notable for bringing forth two copyright acts, the Copyright
Term Extension Act and the Digital Millennium Copyright Act, which
respectively extended protection by twenty years and granted an anticir-
cumvention clause designed to protect the high-tech industrys hardware
and software products from piracy.21 Although copyright is commonly
perceived as a protective measure against intellectual property theft to
safeguard the labor of creative persons, its originsand possibly its future
purposewere characterized differently. Mark Rose observes that
copyrightthe practice of securing marketable rights in texts that are treated

as commoditiesis a specifically modern institution, the creature of the
printing press, the individualization of authorship in the late Middle Ages
and early Renaissance, and the development of the advanced marketplace
society in the seventeenth and eighteenth centuries.22
In other words, copyright did not form organicallya confluence of ele-

ments, some with very different objectives, forged its present form. Only
after a long, laborious history based on precedent and statute did mod-
ern American copyright come to be.
From its inauspicious beginnings as a tool for monarchial censorship
to its modern role as an incentive for public good, copyright law has con-
sistently been pushed and pulled in different directions. The interests of
publishers and authors often clashed with the greater good of the public
domain, pitting the private against the public. Copyright holders (first pub-
lishers, later individual authors), claiming moral, financial, and property
rights violations, initially argued for legal protection similar to physical
property rights, whereas governing bodies, for myriad reasons, tried to limit
their efforts. This battle would continue throughout copyrights history.
At no point did an unequivocal, defining principle of copyright come
to light. For instance, when the House of Lords decided Donaldson v.
Beckett (1774), they gave an answer to the literary-property question, but
they did not provide a rationale.23 The conflicting interests and courts
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booksellers, monarchs, authors, Parliament, common law, industry prac
ticescollectively confused copyrights purpose. When the Stationers
Company first enacted copyright (1557), it was to provide order to the
book trade, which eventually led to a monopoly. In 1709, the Statute of
Anne redefined copyright to destroy that monopoly. Today, copyright no
longer controls or suppresses ideas for the benefit of the state, nor does
it function as a monopolistic tool for the book trade. However, laments
L. Ray Patterson, a new problem has emergedcopyright only protects
the expression of ideas for the purpose of economic profit:
Here is [the] irony of copyright lawin a society where there was no free-
dom of ideas, copyright protected only against piracy; in a society where
there is freedom of ideas, copyright protects against plagiarism. Copyright,
begun as protection for the publisher only, has come to be protection for
the work itself.24
That is the fundamental contradiction of modern American copyright law:

for the ostensible purpose of economic safeguarding, free speech and
expression are only protected as long as they do not encroach upon the
content, rather than the material body, of established works. What began
as a protective measure for publishers ended up migrating all control to
the author or copyright holder.
With this in mind, it should be evident how Los Diary and The Wind
Done Gone faced difficulty in publication. Economic priorities coupled
with de facto unlimited copyright terms made for a climate hostile to
appropriative literature. While it may seem a relatively minor matter today,
as the years pass, a static public domain will become a more pressing issue
because the protected canon will continue to grow, while limiting its con-
tributions to the creative pool. This is a consequence of copyright work-
ing without a higher principle dictating creative appropriation, of hundreds
of years of industry and state battling resulting in a tangle of precedents.
The resulting structure of copyright has determined literary practices and
production. In 1998 and 2001, two writers saw how literature might deter-
mine legal practices.
Nabokov v. Pera
I simply did not know a thing about my darlings mind, realizes Hum-
bert Humbert in a moment of clarity. Oh, that I were a lady writer who
could have her pose naked in a naked light. These words, wrote Italian
umpRoh.indd 33 27/10/2015 3:10:18 PM

The cover from the Italian-language edition of Diario di Lo (Los Diary). Courtesy of
Foxrock Books.
umpRoh.indd 34 27/10/2015 3:10:18 PM

academic Pia Pera, inspired her to accept Nabokovs challenge, his implied
invitation to a literary tennis match.25 The result was Los Diary, a retell-
ing of Lolita through the eyes of young Dolores Haze (Dolores Maze in
Peras version). First published in Italy in 1995, Los Diary steadily advanced
through Spain, the Netherlands, Germany, Finland, Greece, and Brazil.
Plans to publish in France were abandoned when its French publisher,
who later turned out to have ties to the Nabokov family, dropped the
book.26 When word reached Dmitri Nabokov, bearer of his fathers estate,
that the Farrar, Straus, and Giroux publishing house planned to bring an
English-language edition to the United States, he ordered his lawyers to
put a stop to it. After some legal wrestling and public bickering, the two
sides settled out of court. Dmitri Nabokov would allow the publication of
Los Diary in exchange for 5 percent of the royalties, which he donated to
the PEN Foundation, along with the right to write a foreword to the Amer-
ican edition, to be followed by an afterword by Pia Pera.27 The case was
highly publicized, and in the span of slightly less than a year (October 10,
1998, to September 26, 1999), five articles appeared in the New York Times
following its development, excluding two negative reviews of the book.28
Evidently the case was being closely followed by copyright holders as well
as the legal and academic community.
Both parties attempted to undercut each other with verbal volleys in
the media. The lawyers representing the Nabokov estate accused Pera of
copyright infringement: It [Los Diary] is, in a word, a rip-off; its publica-
tion would adversely affect sales of Lolita and inflict financial harm on
the original.29 Furthermore, speculated lead counsel Peter L. Skolnik, the
publication of Los Diary would set a dangerous precedent for the pub-
lishing industry: If this is permitted without obtaining permission it could
be disastrous for all publishers. Every time a successful book is published
someone could say, Lets do it again and tell it from another characters
point of view.30 In a released statement, Pera claimed public ownership,
rejoining, Lolita belongs not just to literature but to everyday language
and contemporary mythology. This suit makes one wonder whether new
light can be cast on our cultural heritage only after the term of copyright
has expired.31 While Peras comments articulate a belief that a work in the
cultural consciousness transcends individual ownership, her legal counsel
argued that Los Diarys utilization of Lolita qualified for protection under
fair use because it was transformative and enriched, rather than detracted
from, the original.32 In an article for the New York Times Book Review,
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Martin Garbus, lead counsel for Peras eventual American publisher, re-
flected on the cultural impact of the lawsuit:
This was a unique case, and could potentially have ended up before the
Supreme Court, setting a precedent in the increasingly contentious arena of
copyright law. Los Diary simply doesnt fall into any traditional category
that the law, or literature, is used to dealing with: its not parody or criticism,
which dont require permission; its not a prequel or sequel, which do.33
The philosophical distance embedded in their statements is troubling,

even more so because copyright law somehow has room enough to accom-
modate all of their views. Skolniks argument does not take into consider-
ation the particulars of the case, neglecting to consider the purpose and
character of Peras rewriting; it seems those statements were issued to
elicit public sympathy and galvanize the publishing industry. Peras claim
of cultural commentary fails to acknowledge the multitude of other ave-
nues for commentary, be it in an academic paper or review. Her impa-
tience with having to wait until 2030 for Lolitas copyright to expire is
understandable, but not unreasonable. She was forty-two years old in 1998
and would have been seventy-five by the time she would legally be able
to publish Los Diary in the United States.34 Unfortunately, the 1998 Copy-
right Term Extension Act passed the same year, extending Lolitas protec-
tion until 2050, when she would be ninety-five years old, significantly
diminishing the possibility of her participating in literary dialogue with
Nabokov.35 Though her expressed desire for public ownership of cultural
artifacts is understandable, it ignores the reality of the current intellectual
property regime as well as more tolerated and established fair use prac-
tices. Garbuss statement branding Los Diary as neither parody nor criti-
cism ventures into an inchoate area of fair use.36 Pera herself described
her work as engaging in a literary tennis match, which would mean that
her book directly responds to Nabokov. Is the work transformative
meaning, does it add to and enrich the original in forming an indepen-
dent work? Or is it simply derivative, and therefore unprotected? Why did
the lawyers not base their rhetoric around the protection of parody? If the
book is not parody, then what is it?
What it definitely was not, according to American critics, was a worthy
complement to NabokovLos Diary was critically panned. The Los Angeles
Timess Jonathan Levi, echoing Humbert Humbert, promulgated, Mem-
bers of the jury, I assert that this is not, cannot be, the true Lolita.37 The
novel, wrote Michiko Kakutani, is a dreary, monotonous, and heavily
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Freudian account of incest and abuse and mutual manipulation.38 Shared
by all of the reviews was an unmitigated contempt for Peras writing, which
paled in comparison to Nabokovs; whatever Los Diary was, it was no
equal to Lolita in terms of aesthetics. So focused were the reviewers in
expecting another breathless seduction that Peras novel was doomed to
fail from the outset.
I question whether the disparity in quality is not a product of design.
Peras stilted prose and clumsy devices disappointed American reviewers,
who were uncertain how to receive the novel. The back cover of the book
claims that Pera rewrites Nabokovs classic through a feminist lens, yet
reviewers dispute that the inimical portrayal of Dolores Maze fosters little
sympathy for the female character.39 In a review for the New York Times
Book Review, Mim Udovitch writes,
Foxrocks publicity copy has suggested that this is a feminist work, but given
the nastiness, not to mention the extreme sexual aggressiveness, of its
11-to-14-year-old narrators, it doesnt do the cause of women any favors,
unless that cause is to promote a greater social acceptance of the sexually
empowered nature of little girls who have been abducted and held captive
by their unsatisfactory 30-something lovers.40
Ernest Machen argues that this is exactly the case; the reading of Lolita-
as-seducer is not unfamiliar to literary critics.41 Although Humbert Hum-
berts veracity is slippery, at one point he proclaims, Ladies and gentlemen
of the jury! ...I am going to tell you something very strange: it was she
who seduced me.42 Udovitch, as well as other critics who excoriated Pera,
miss the point of the novel. In a close reading of the original Italian and
English editions of Los Diary, Machen contends that Peras text works to
integrate itself as a complementary force by enhancing the original and
credits a poor translation job, which failed to retain the nuances of the
Italian language, for the novels disappointing reception.
Lolita figures a performance of seduction. Nabokov sugars Humbert
Humberts narrative voice to quell our uneasiness with his monstrosity;
empathetic readers inadvertently find themselves complicit in Humberts
guilt. That Peras Dolores Maze comes off as such an unsavory protagonist
intimates that Pera moves in a different direction, but reviewers, seemingly
oblivious, missed the connection. Pera abstains from attempting to seduce
the reader, concentrating instead on eradicating any romantic aesthetic
impressed on the reader by Nabokovto extricate his captives from their
collective hypnosis. The basic premise of the novel makes this evident;
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Pera chose to write from the perspective of the adolescent Lo in the first-
person diary form, which should preclude any expectations of florid lan-
guage and sublime interior narratives. Indeed, in the preface (narrated
once again by John Ray), when the adult Dolores hands him her diary, she
remarks, [Its] definitely less literarya prudent move on Peras part,
because endeavoring to engage Nabokov on a literary battle of prose aes-
thetics would have been quixotic at best.43 Take, for example, a side-by-
side comparison of the famous apple scene early in both novels. In this
short chapter, Humbert Humbert engages Lolita in light horseplay while
surreptitiously taking advantage of her body.
From Lolita:
Give it back, she pleaded, showing the marbled flush of her palms. I pro-
duced Delicious. She grasped it and bit into it, and my heart was like snow
under thin crimson skin, and with the monkeyish nimbleness that was so
typical of that American nymphet, she snatched out of my abstract grip the
magazine I had opened.... Rapidly, hardly hampered by the disfigured apple
she held, Lo flipped violently through the pages in search of something she
wished Humbert to see. Found it at last. I faked interest by bringing my head
so close that her hair touched my temple and her arm brushed my cheek as
she wiped her lips with her wrist.... She twisted herself free, recoiled, and
lay back in the right-hand corner of the davenport. Then, with perfect sim-
plicity, the impudent child extended her legs across my lap.
By this time I was in a state of excitement bordering on insanity; but I
also had the cunning of the insane. Sitting there, on the sofa, I managed to
attune, by a series of stealthy movements, my masked lust to her guileless
limbs. It was no easy matter to divert the little maidens attention while I per-
formed the obscure adjustments necessary for the success for the trick....
... Blessed be the Lord, she had noticed nothing!44
From Los Diary:
Give it back right now, I yell, hurling myself at him. Give it back: I open my
fire-colored mouth and blow my blood-scented breath on him. The action
begins! Battle! I grab the apple, being more alert than he is, and stronger and
a hundred times more agile. I bite it, and its like breaking a jar containing a
love potion. The air is pierced with fragranceacidic apple and blood-scented
throat warmth. But to conceal the main frontal attack from him I take his
hand off the magazine (diversionary tactic), and while Im looking around
for something or other for him to look atto see better I stretch across
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himmy fragrance stuns him completely.... With new protests, I fling
myself away to get it back, but he holds on to me, trying to think up some-
thing, anything, just to keep my sunburned legs from escaping. Its obvious
with every move of the struggle that hes trying to position them against him,
on his lap. Under the thin silk bathrobe hes all on edge. His cheeks are fiery,
he mutters a pile of nonsense so that Ill stay, he wants me there, whatever
the cost. Hed have a heart attack if I stopped right there.... He looks around
confused and satisfied, maybe he hasnt yet realized what happened to him:
that I seduced him. That now hes mine.45
Juxtaposing passages confirms that Pera chose not to attempt to match

Nabokovs choice wording; instead, she concentrated on enriching Lolita
through recontextualization. Whereas Humbert writes in the past tense,
Lo writes in the present tense, counterintuitively so, because a diary would
normally have been written in the past tense. Peras objective in doing so
is to create distance even as her project calls for overlaying. Los scrib-
blings brim with immature hyperbole, whereas Humberts poetic recol-
lections elide and glide over his odious nature. So confident is he in his
linguistic and rhetorical charm that he has the audacity to suggest that
not only was Lolita aware of what was occurring but that it was she who
initiated it. If Pera depicts Humbert as a pathetic, emaciated caricature,
then he is doubly so in Nabokovs text. Nabokovs ingenuity was in writing
a scoundrel with a silver tongue who could be empathized with. Hum-
berts eloquence obscures the subject matter with a softening filter that
apotheosizes Lolita even as the facts of the plot articulate a traumatized
adolescent. Peras response is to drape a layer of irony over the original by
fleshing out the ephemeral Lo as a plainly human, unsympathetic Dolo-
res Maze. She violently strips the camera lens of Humberts filter to rein-
scribe a tendentious Lo, which has the unappetizing effect of showing her
with all of her warts and blemishes. In one much-maligned scene, Lo
torments her pet hamster by holding its feet over a hot light bulb, tittering
while it spastically dances.46 Perhaps what readers find most disappoint-
ing is Los sadly hackneyed dream of finding fame and fortune in Holly-
wood, the city simulacrumtouched upon in Nabokovs novel but realized
in full in Peras. She mimes the adults in her life who are obsessed by their
own respective hyperreal imagesHumbert with Annabelle, her mother
with cheap romance novels, and Quilty with pornographic films and the-
ater. There is no probity in Lo, no cathartic, liberating narrative; there is
only mediocrity. If Lolita is a virtuoso performance of seduction, then Los
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Diary is a sober, if inelegant, argument pointing out that that beauty is
contingent on deception. The question is whether the readers are willing
to have Lolita, as well as themselves, pay that price.
Do the critical elements of Los Diary qualify it as a work of parody? The
answer is not entirely clear; after all, rather than disparage Nabokov, Pera
seems to complement him. To paint the novel a feminist reenvisioning
because it is written from a female perspective may be reductive; the gender
of an author or character is not necessarily an automatic marker of femi-
nism.47 There is little evidence of Pera objecting to Lolita or to Nabokov
himselfindeed, it is apparent that she openly admires both. If anything,
she criticizes Nabokovs readers for being so easily fooled by Humbert, for
craving the sweetness of his words even as the quiet facts of the case belie
him. She excoriates Humbert Humbert as a rather sad figure, but more
importantly, she strips Lolita of any romanticism and unveils her spoiled
nature. In brutal fashion, she problematizes readings of gender power
dynamics with Los unsettling truculence, refusing to reduce Lo to subjuga-
tion. Yet this matters little in the legal sphere, because Peras critique does
not directly protest Lolita or Nabokov but social gender constructions. Paro-
dies usually target the original work, but those that criticize a third party,
such as an oppressive social structure, are less defined.48 In some ways,
this distinction positions Los Diary closer to satire than parody. In Dr. Seuss
Enterprises v. Penguin Books (1997), a work parodying Dr. Seuss to ridicule
an unrelated third party was found to be unprotected by fair use.49 It is not
entirely clear how a parody targeting a specific character and readership
rather than the entirety of the work would have been received by the courts.
The difficulty in defining Los Diary makes its publication all the more
meaningful. Peras publisher was under immense pressure to shelve the
book by the Nabokov estate, which was in turn pressured by public opin-
ion to permit its publication. In the contractually obliged foreword, Dmi-
tri Nabokov bitterly recounts that the Washington Post advanced the view
that I should lighten up, a fair representation of the public rancor sur-
rounding him at the time.50 Garbus correctly notes that Los Diary did not
fall into any traditional category that the law, or literature, is used to
dealing with.51 The legal ambiguity of Peras book would have likely been
difficult to surmount in court.
As a result of a settlement, Los Diary was granted permission to be pub-
lished, but the resolution also sent a message to the publishing industry.
Undoubtedly, the high costs of wrangling over copyright issues would lead
publishers to be more vigilant in avoiding subsequent appropriative works.
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Pera won in the court of public opinion and successfully published in the
United States, but without a true legal decision, the settlement was largely
meaningless in terms of setting precedent. However, it did succeed in
intimidating publishing houses from considering appropriative literature.
Fittingly, Lolita preceded Los Diary by a half century in overcoming oppo-
sition to publication; while Los Diary was threatened under copyright law,
Lolita faced similar threats for obscenity from censorship committees.
To further complicate matters, controversy erupted when it was shown
that Nabokov may have taken the name and general plot of Lolita from
an obscure German writer (and event announcer for the Nazi Party), Heinz
von Lichberg (aka Heinz Von Eschwege). Michael Maar notes that a 1916
short story published in Berlin, titled Lolita, contains unusual similari-
ties with Nabokovs novel. They share some telling elementsthe narra-
tor, a professor, tells a story-within-a-story to a group of listeners about a
tragic, terribly young girl named Lolita, with whom he falls in love. How-
ever, the similarities end there; the rest of the story is considerably differ-
ent.52 Still, regardless of whether Nabokovs Lolita qualifies as plagiarism
(I do not think it does), the discovery of Von Lichbergs Lolita must be
troublesome if only for raising the possibility that Nabokov might have
had to battle, in addition to the censors, a litigious Von Lichberg. It does
also add some weight to Peras argument that Lolita belongs to the cul-
tural consciousness rather than an individual.
I would hesitate to call Los Diary a standalone text. On an intertextual
level, the novel clearly depends on an assumed knowledge of Lolita for it to
work. On an extratextual level, one should have an understanding of the
legal literature surrounding it to appreciate its importance. In this case, the
literary content engages in a reflexive commentary on the legal content, and
vice versa. It is necessary to perform a literary reading of Los Diary to deter-
mine whether Pera criticizes Nabokov; law and literature, driven by dispa-
rate forces, interact to produce literary practice. Pera emerged victorious,
because the publication of the book was in itself a triumph, but the costly
legal battle sent a strong message to publisherscaveat emptor. However,
because no legal precedent was established, the literary world only had
to wait a short period before being revisited by the same problem.
Mitchell v. Randall
In 1998, the Mitchell Trusts, overseers of Margaret Mitchells estate, began

negotiations to commission Pat Conroy, a southern author best known
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The cover of The Wind Done Gone (Boston: HMH, 2001), a novel by Alice Randall.
Note the obtrusive graphic, The Unauthorized Parody. Used by permission of Houghton
Mifflin Harcourt Publishing. All rights reserved.
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for The Prince of Tides, to write a sequel to Mitchells Gone with the Wind.
The original had sold tens of millions of copies and had won the Pulitzer
in 1937, and the 1939 film adaptation went on to eclipse the novel, shat-
tering box-office records and winning ten Academy Awards.53 The Conroy
project would actually have been the second sequel; ten years earlier, the
Trusts had authorized another author, Alexandra Ripley, to write a sequel,
which was published in 1991 as Scarlett. Ripleys sequel received mixed
reviews but still made a large sum of money for the Mitchell Trusts, with
the television rights alone selling for $9 million. Its success spurred the
Mitchell Trusts to pursue another sequel, under certain conditions, which
their lawyers outlined in an affidavit:
The contract for the Second Sequel specifically provides that neither Scar-
lett OHara nor Rhett Butler may die. The Mitchell Trusts, upon publication,
will be the sole copyright owner of the Second Sequel and will be entitled to
an advance of several million dollars, against royalties payable on the sale
of each copy of the Second Sequel.54
Not unexpectedly, Conroy found these conditions unpalatable. He strug-

gled to restrain his rancor in a letter written to the Trusts protesting their
restrictions:
I believe I have been as flexible and reasonable as any man or woman you
could approach about this project. My editor... still bristles with anger when
she brings up the subject that I will be paying sixty cents for every dollar I
make to a dead woman....
I cannot... and I repeatI cannot sign anything that gives away literary
control of the book I would write for the estate. I think I am giving up the
copyright... it seems I have made extraordinary concessions at this stage
of my stumbling career to remain a part of this project.55
Interestingly, while Conroy bristled over conceding the copyright and the
majority of the proceeds, his main dispute with the Trusts seemed to be
over literary control. He had planned to write Scarletts death as one of
the great death scenes in all of literature, which the Trusts refused to enter-
tain. He even offered a compromise in which he would write the scene
but give the Trusts final word on whether to include it in the sequel. Most
striking, however, is a small paragraph tucked away on the third page
of his letter, in which Conroy delineates what would prove to be a major
obstruction in their negotiations: All my resistance to your restrictions
all of them, and I include miscegenation, homosexuality, the rights of
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review and approvalI do because they begin inching toward the pre-
cincts of censorship.56 Forbidding homosexuality and miscegenation are
two additional conditions that the Mitchell Trusts lawyers did not directly
mention in their affidavit, perhaps because, in an odd coincidence, these
were essentially the central plot mechanisms used in an unauthorized
sequel several years later. Conroys conflict with the Trusts exemplifies
the wide disparity of power granted by copyright to the holders, giving
them not only rights to the profits but strict literary control. Under these
circumstances, few options would be left for addressing Mitchell in terms
not necessarily aligned with the Trusts.
Soon after negotiations with Conroy fell apart, a song-and screenwriter
from Nashville named Alice Randall, objecting to Mitchells glossing of
slavery, decided to write her own rendering of Gone with the Wind through
the eyes of a slave. In her novel, the white characters are demoted to the
background while the slaves take center stage to assert their humanity
and agency. Randall wrote to propose a hidden, restorative truth by mim-
ing key plot points in hopes of undoing some of the damage that had been
inflicted on the black community by the original.
In Margaret Mitchells Gone with the Wind, the coquettish Scarlett OHara
leads a life of desultory flirtations with young men of means during the
precipice of the Civil War. After the war decimates her familys wealth, the
one constant she returns to time and again is her familys plantation, Tara.
Her true love, a temperate, soft-spoken intellectual named Ashley Wilkes,
marries his plain cousin, Melanie, out of obligation, which sends Scarlett
spiraling into a cycle of violence and desperate irrationality. She is mar-
ried several times to men she does not love for reasons of spite or money,
each of whom meet with violent early demises. An older iconoclast and
carpetbagger, Rhett Butler, falls in love with Scarlett, yet he cannot ever
seem to compete with the idealized Ashley. It is only when Scarlett is left
by Rhett that she realizes she has loved Rhett all along. Set against their
romance is an array of caricaturized black slaves described as having gen-
uine affection for their white masters while at the same time derided for
their childish and capricious behavior.
It is not difficult to see why the immense popularity of Gone with the
Wind in both print and film is reviled by many in the African American com-
munity. Randall does her best to deconstruct Mitchells novel by expanding
and centering liminal spaces occupied by slave characters, altering generic
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conventions to recast the novel as a slave narrative, and reversing the
masterslave power dynamic.
The Wind Done Gone begins with a preface called Notes on the Text,
which contains a few paragraphs purporting the documents authenticity.
The preface claims that the manuscript was discovered in the early 1990s
among the remnants of an elderly black woman, named Prissy Cynara
Brown, living in a nursing home near Atlanta. Presumably her name is an
amalgamation of Randalls protagonist, Cynara, and Mitchells character
Prissy, a young female slave serving in the OHara household (the postscript
later reveals that Ms. Brown is the granddaughter of Prissy). The preface
goes on to describe the manuscripts physical characteristics: a leather-
bound diary, written in an ornate and hard-to-decipher hand with a pen
and pencil, and a typescript of the diary prepared sometime later.57 Also
noted are two instances in Ms. Browns medical history when she was hos-
pitalized after collapsing, once after the publication of Mitchells novel, and
once again after the premiere of the film adaptation. As an inheritor of slav-
erys legacy and owner of the diary, Prissy Cynara Browns dramatic response
to Mitchells work mirrors the black communitys as a whole. It is interesting
to note that in their respective prefaces, both Pera and Randall have their
protagonists react strongly to the publication of novels that supposedly
speak for them. While Ms. Brown-as-proxy collapses physically, the adult
Dolores in Los Diary (also in a fictional, authenticating preface) sardoni-
cally laughs in contempt of Humberts memoir and hands her diary to pub-
lisher John Ray. Randalls preface claiming ownership of the real story
might strike the reader as awkward, but it mimes a construction familiar to
African American literature; the explanatory preface and first-person diary
entry form of the novel recall two conventions of the slave narrative. Given
that the novel purports to be contemporaneous with Gone with the Wind,
it would have been strange for Randall not to frame her novel as slave nar-
rative, the dominant form of antebellum African American literature, which
also happens to share the consciously political purpose of The Wind Done
Gone. Indeed, Randall directly invokes Frederick Douglasss own slave nar-
rative, considered to be the genre paragon, even including him as a charac-
ter in the latter half of the novel (he hosts a party in his home in Washington,
D.C., where Cynara is introduced to a community of educated, freed Afri-
can Americans). Randall positions her novel in direct lineage with slave
narratives to correct misconceptions wrought by racist myths and to point
out Gone with the Winds complicity in perpetuating them.
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One of the major projects of The Wind Done Gone is the reclamation
of liminal spaces as sites of interior performance. Ignorance and racism
oppress and dehumanize, but within a literary schematic they articulate
a vacuum so harshly conspicuous that it begs revisiting. What was depicted
by Mitchell as darkies fleeting about in the periphery Randall illumi-
nates brightly as the true cause of the plantations survival; she draws the
curtains back to demonstrate the resourcefulness of slaves in transcend-
ing their confined roles. In Mitchells novel, Pork, or Garlic in The Wind
Done Gone, was won by Master OHara in a card game as a dehumanized
commodity to be bartered. Randall grants Garlic a voice, which recounts
that night differently: I mixed my young masters drinks heavy and poured
my hoped-to-be-masters drink light. Wasnt good luck won Planter me. It
was me poisoning Young Marses cup.58 While Garlics former masters
intelligence precludes easy manipulation, Planters modest faculties prove
easier to manipulate. By replacing his master with Planter, Garlic is able
to fulfill his vision of a place [he] wanted to live.59 Scarletts much-
celebrated strength, then, is undercut by the slaves working in the periph-
ery, depicted by Randall as the true cause of the plantations survival.
Randall criticizes the Souths reliance on slave labor to support their opu-
lence, which later proves their undoing when the economy collapses after
the war. Her critical framework essentially parallels Jean Rhyss Wide Sar-
gasso Sea, a postcolonial reenvisioning of Charlotte Bronts Jane Eyre
told from Bertha Masons point of view. Rhys, notes Gayatri Chakravorty
Spivak, addresses the fact that Jane Eyres stature as the feminist indi-
vidualist heroine of British fiction comes at the price of Bertha Masons
self-immolationthe colony must be sacrificed for the benefit of Eng-
land, a privilege that is always already accepted as proper.60
Randall dismantles a similarly feminist individualistic heroine of
American Southern fiction with her rendition of Scarlett OHara. Referred
to as Other in The Wind Done Gone, she is depicted as a shrill, cowardly
woman, the lesser shadow of her half-sister, Cynara. Similar liberties are
taken with the rest of the gallery: Rhett Butler remains a womanizer as
Cynaras lover, but without the familiar virility; Mammy, the matriarch and
caretaker, takes surreptitious vengeance against her captors by murdering
Scarletts daughter (she dies in Mitchells novel in a horse-riding accident);
Ashley Wilkes, the object of Scarletts longing, is recast as a homosexual
whose cowardice in confronting his sexual appetites results in the death
of Prissys brother. Upon reading Randalls reenvisioning, Pat Conroy wrote
in an e-mail declaration that he laughed out loud at its clever inversions
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and insid3ers [sic] jokes on the themes of gwtw, adding that the only
suitable response that black america can have to the immense popularity
of gwtw is to turn to paraody [sic], to mockery, to humor and to the power
of laughter.61 The Mitchell Trusts, however, were not amused.
What followed was a highly publicized lawsuit that mobilized an army
of lawyers, interested corporations, and popular and scholarly critics. On
March 16, 2001, a letter was sent to Paul D. Weaver, senior vice president
and general counsel for Houghton Mifflin, demanding an injunction and
monetary damages in excess of $10 million.62 Houghton Mifflin responded
three days later, on March 19, 2001; they declined to acquiesce to the Mitch-
ell Trusts demands and declared their intent to claim fair use. On April
20, at the request of the plaintiff, U.S. district judge Charles Pannell ordered
a preliminary injunction against Houghton Mifflin, finding that Randall
cannot receive the benefit of the fair use defense because she uses far
more of the original than necessary.63 Houghton Mifflin appealed the in-
junction, which the Eleventh Circuit court rejected. A month later, how-
ever, the same court vacated the injunction, calling the actions of the
district court, an abuse of discretion in that it represents an unlawful
prior restraint in violation of the First Amendment.64 The Mitchell Trusts
declined to appeal, choosing instead to settle out of court; they would
permit the distribution of Randalls book in exchange for financial recom-
pense, which they donated to historically black Morehouse College in
Atlanta.65
Much has been written about Suntrust v. Houghton Mifflin in legal aca-
demic circles, yet despite the broad implications of the outcome of the
case, surprisingly little commentary came from literary corners. This might
be attributed to The Wind Done Gones lukewarm critical reception, which,
outside of the African American community, was derided as heavy-handed
and of dubious aesthetic value.66 In a review for the New York Times,
Michiko Kakutani derides The Wind Done Gone as clumsy, self-important
and sometimes laughably silly.67 Additionally, little had changed with the
case settlement and Randalls ostensible victory. Literary appropriation
would continue, within limits, and nothing had been unjustly censored.
In other words, the fury over the case quickly subsided, and the literary
community put the episode behind it as a minor, albeit curious, event in
publishing history.
Yet it would be a mistake to categorize the case as a result of overzealous
litigation. Suntrust v. Houghton Mifflin is important for two reasons. Besides
highlighting some of the fundamental problems of modern intellectual
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property rights hinted at by L. Ray Patterson, it was the first major Ameri-
can case of literary appropriation to make it to court, where establishing
precedent determines future cases. Had a higher court upheld the injunc-
tion, the case might have threatened the practice of literary appropriation
and significantly narrowed the definition of parody. It might have possibly
ushered in a slippery slope in which a stricter definition of parody could
affect the practice of fair use in general. Second, it demonstrated how
copyright could be used in a censoring capacity that it was not originally
designed for. Pat Conroys correspondence with the Mitchell Trusts makes
it clear that they held a strong interest in maintaining a particular vision of
Gone with the Wind, which they jealously guarded. Rather than a fear of
financial harm, a strong desire to preserve the cultural impact of Gone with
the Wind by staying true to its spirit drove the Mitchell Trusts lawsuit.
Houghton Mifflin argued its case based on separate but twin compo-
nents of copyright law, positing that the book was protected under the
fair use clause as parody and that to suppress the publication would be
tantamount to censorship laced, perhaps, with racism. The insinuation
played to the racial dynamics of the case; here was a wealthy, powerful
southern estate prosecuting an unheralded African American woman pro-
testing racist literaturethe Mitchell Trusts faced a public relations night-
mare. Toni Morrison and Henry Louis Gates Jr., two prominent figures of
African American literature, supported Randall in court. Morrison wrote
a harsh rebuke: To crush the artistic rights of an African American writer
seems to me not only reckless, but arrogant and pathetic.68 Gates was
more diplomatic in citing the long tradition and social value of parody in
African American literature and culture: It [The Wind Done Gone] consti-
tutes both an original work of art and a moving act of political commen-
tary, deconstructing as it does a text that many scholars believe to be
racist.69 Suntrust v. Houghton Mifflin turned out to be the optimal sce-
nario for literary appropriations legal trial. In addition to Gates and Mor-
rison, a litany of academics and writers, including the reclusive Harper
Lee, signed statements in support of Randall.70 They found themselves
backed by unexpected allies. In an amici curiae brief filed jointly by a host
of interested media corporationsincluding the New York Times Com-
pany, Time-Warner AOL, Netscape, the Los Angeles Times, and Cox Cable
Inc.they enumerated their own conflicting sets of interests:
On one hand, the Amici are the owners of countless copyrights.... As such, the
Amici support the rights of copyright owners and have the usual economic
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interest in protecting their own intellectual property. On the other hand, the
Amici are publishers of news, editorials, commentary, criticism, and, at times,
parody. Thus, the Amici embrace an expansive reading of the First Amend-
ment and the protection it affords expressive activityeven when that pro-
tection comes at the expense of Amicis own economic interest.71
It is striking that some of the most powerful media corporations in the

United States would side with Randall. In general, media conglomerates
protect their economic interests by aggressively prosecuting private indi-
viduals who have allegedly infringed on their intellectual property. With
Suntrust v. Houghton Mifflin, they saw a threat to the right to free expres-
sion, which they deemed more important than possible short-term eco-
nomic damages.
The Mitchell Trusts concentrated on proving that the amount and
substantiality of the portion used in relation to the copyrighted work as a
whole was excessive and the adverse effect of the use upon the potential
market.72 In short, the Trusts intended to prove that the publication of
Randalls book would detrimentally affect the market for Gone with the
Wind and that Randalls dependence on Mitchell negated her claim of par-
ody for protection. A number of sympathetic expert opinions supported
their argument. In an affidavit, Louis Rubin, professor emeritus of the
University of North Carolina, wrote, I dont see how it could be plausibly
argued that Wind Done Gone is other than almost totally dependent upon
Gone with the Wind.73 He went on to write that the racism depicted in
Gone with the Wind was so comical and archaic that most people simply
knew better than to treat it as any kind of realistic depiction of the actuali-
ties of human slavery,74 thus bypassing Randalls argument that her book
has any critical value because Gone with the Winds racism is self-evident.
Professors Alan Lelchuck (English, Dartmouth) and Gabriel Motola (En-
glish, CUNY) agreed along similar lines in their own affidavits. Lelchuck
argued that the novel was not satire or parody.... There is no consistency
here, of style, tone or attitude, to substantiate either form of critical mock-
ery;75 Motola simply claimed that too much of Randalls book was depen-
dent on Mitchells, and that nullified any critical intent.76 Guggenheim
Foundation president Joel Conarroe argued slightly differently, making the
case that parody implies wit and humor, neither of which is in evidence.77
The Mitchell Trusts also outlined scene-by-scene similarities between the
two novels and described how, were The Wind Done Gone to be allowed to
be published, millions of dollars in damages would accrue against them.78
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Determining whether The Wind Done Gone committed literary theft,
and, to a lesser degree, caused economic damage against the Mitchell
Trusts, was contingent on how the court would define parody. In the pre-
ceding affidavits, the plaintiffs supporters argued that Randall lifted
an unacceptable amount of material from Mitchell; that Randalls politi-
cal motives were unnecessary because contemporary (presumably left-
leaning) readers would immediately reject the racist attitudes depicted in
the book; and that Randalls text lacked the necessary comic irreverence
and aesthetic value needed in parody. For the defense, the question of
whether Randall took liberally from Mitchell was a nonissue; they accepted
it as a necessary condition of parody. The Eleventh Circuit Court drew on
a definition of parody from an earlier case in the music industry, Camp-
bell v. Acuff-Rose Music, Inc. (1994), in which the four-point analytical
framework was used to determine whether the works aim [was] to com-
ment upon or criticize a prior work by appropriating elements of the origi-
nal in creating a new artistic, as opposed to scholarly or journalist work.79
In fairness to objectivity, the court highlighted Randalls intent to criticize
or comment on the original work as the prevailing qualifier and ignored
the second and third arguments in finding for the defense, because those
were determined to be highly subjective elements. This is significant be-
cause it left out any mention of aesthetics, wit, and humor and nullified
the more galvanizing censorship argument of Randalls defense. The claim
of irreparable financial harm by the Mitchell Trusts was determined to
lack evidence in the fourth point of analysis.80
The Eleventh Circuit Court deftly dodged the more incendiary topics
of censorship and financial harm by burnishing the definition of parody,
yet those were the two issues in contention. What, then, was this case
really about? Censorship? Financial damage? While many find draconian
policies bordering on censorship distasteful, the fact remains that other
avenues for criticism exist. Randall could have written an academic paper
or used her skills as a country songwriter to pen a critical musical piece,
all of which would have been protected under fair use. With regard to
financial damages, it is difficult to surmise whether the Mitchell Trusts
sincerely thought that Randalls text would be mistaken for an official
sequel when the content and attitude of the novel should evince that it is
not part of the Gone with the Wind canon.
Examining the context and actions of both parties indicates that all were
concerned more with censorship than with financial harm. Put more accu-
rately, the importance of tactile censorship outweighed the risk of possible
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financial harm. Randall and her publisher felt that her rights to free expres-
sion were being encroached on and chose to engage the lawsuit despite
the high risk and cost of challenging a resourceful, established estate.
Randall needed to nakedly address the original work in the same medium
precisely because she wanted to invite direct comparisons with Mitchells
novel, to ask the reading public to rethink Gone with the Wind. For a soli-
tary writer to take such a large gamble, even with the protection and back-
ing of a publisher, extraordinary conditions had to override the possible
damage to her burgeoning literary career. Randall seemed to believe her
right to free speech outweighed the economic risks involved.
Determining the motives of the Mitchell Trusts is more difficult. It would
be naive to completely rule out fear of financial harm as a factor, but evi-
dence seems to point to a stronger motive driving the lawsuit, an intense
desire to retain control over the perception of Mitchells literary legacy. It
became apparent during case proceedings that the Mitchell Trusts held a
strict vision, as evidenced in Pat Conroys letters; they sought to preserve
Gone with the Wind, regardless of its flaws, as a sacrosanct Southern classic.
However, The Wind Done Gone threatened not only to damage Gone with
the Winds stature but to recast it in a light incongruous with the Trusts
interests. In some respects, the more pernicious threat was not in The Wind
Done Gone diminishing the market demand for a (second) sequel but in
Randalls ideology; she pointed out the readers complicity in Gone with the
Winds racist caricatures, which held the possibility of disturbing Gone with
the Winds seat in the pantheon of American literature. Such a move would
have been devastating for the Mitchell Trusts, yet they could not openly
confess their desire to silence the issue of racism; that approach would have
eradicated any sympathy garnered from the academic and public sectors.
However, allowing a work to openly address Mitchells racist undertones as
well as integrate miscegenation and homosexuality into the fabric of Gone
with the Winds mythology could disturb and alienate its core readership. In
the end, they decided to claim financial damages and assiduously avoided
ideological arguments. When it became apparent that the public nature of
their dispute afforded Randall free publicity, the question of cost efficiency
arose; the Trusts realized that allowing Randall to be published under puni-
tive conditions and quickly forgotten would best protect their interests.
After managing to negotiate a percentage of The Wind Done Gones prof-
its, they, like Dmitri Nabokov, donated the proceeds to assuage negative
publicity. A decisive victory in court would have few benefits in the long
term and permanently establish the Mitchell Trusts as literary bullies.
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The cases mechanicseconomic damages, censorship, fair useare
small factors in the larger scope of literary and cultural development, but
with long-lasting effects in the aggregate. In years past, the battle of the
booksellers and the state led to de facto perpetual copyright and subse-
quent freezing of the public domain. More recently, Suntrust v. Houghton
Mifflin saw a literary estate and solitary author with similarly competing
interests battle over cultural commentary. This time, the issue at hand was
not perpetuity of copyright but the right to comment and criticize inter-
textually through the fair use clause. Had the Mitchell Trusts proved vic-
torious, the case might have contributed to a literary rigor mortis; copyright
holders might have effectively been given veto power over future writers
based on ideology through a straw man argument about economics.81
Summary and Judgment
Does the failure of the Mitchell and Nabokov estates to win a judgment
against their respective upstarts mean a decisive victory for fair use? Not
particularly. In a sense, their chronicle follows a persistent tradition of
discouraging research and dialogic activity that both precedes and suc-
ceeds themthe so-called chilling effect. As Paul Saint-Amour notes in
Copywrights, James Joyces estate, led by his grandson Stephan Joyce, held
a stranglehold on his grandfathers materials, forbidding anyone from
quoting or citing unless he paid an extraordinary fee. Similarly, in a breath-
takingly mercurial open letter, poet Louis Zukofskys son makes little effort
to mask his contempt for scholars interested in his fathers work (your
chosen so-called profession is quite beyond me), forbidding just about
anyone from citing in any form without permission, also contingent on
fees.82 Their concern seems primarily economicPaul Zukofsky in particu-
lar seems to bristle at the notion of a shared cultural goodand demands
absolute control over the material to maximize their financial return, the
consequences of which are quite discernible. For example, the estate of
T.S. Eliot previously followed a comparably draconian policy of jealously
guarding his materials. As a result, notes Jonathan Bate, scholars began
to turn away from Eliots work, which eventually led to his literary reputa-
tion suffering. It was only when the estate decided to relax its restrictions
by granting access to unpublished materials and more liberal quotation
that the damage done to Eliots legacy was reversed.83 Still, the decision to
exercise fair use remains largely within the purview of the owners, for the
resources necessary for defending it favors whichever side wields more
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wealth, which is seldom anyone other than the estate. Although these are
rather extreme examples somewhat predicated on outsized personality
issues, the fact remains that the legal and economic structures nonethe-
less favor the content owners.
The Randall and Pera cases deserve particular attention, however, be-
cause the economic argument belies the larger cultural dispute. Although
both the Mitchell and Nabokov estates sued for financial damages, at one
point or another they publicly declared that their cases were not about
recouping financial damages, a statement supported in part by their deci-
sion to donate their settlements to charities. They were more concerned
that Pera and Randall would tarnish the memories of Nabokov and Mitch-
ell as well as the reputations of their works in the public consciousness.
These are understandable sentiments, but a congenital proclivity for author
worship leads to the status quo, which has the unfortunate effect of a
work like Mitchells becoming embarrassingly dated when the estate refuses
to address some of her archaic social commentary as contemporary atti-
tudes about race and sexuality evolve. In a discussion of the aforemen-
tioned cases, Saint-Amour speculates that inherited literary estates tend
to be oriented around the commemoration and consecration of an authors
work, and thus to be structurally disposed against encouraging work that
might damage the reputation and commercial appeal of the author whose
literary remains they exist to protect.84 Given the opportunity and legal
right, copyright holders will promote literary stasis, not for consciously
pernicious ends, but in the best interests of their legacies. This is a classic
case of clashing stakeholderson one hand, copyright holders benefit
best from fixed materials, but on the other hand, new authors and the
reading public benefit from open dialogism. Yet current copyright law
heavily favors established authors and their estates; others looking to par-
take in a measure of cultural commentary are required to go to court,
partly due to the intentionally vague wording of the fair use clause, which
makes each case unique and disputable. Though Pera and Randall even-
tually reached publication, the established precedent had mixed results.
Their battles certainly made it easier for similar works to win in court, but
the legal costs remain the same, frightening off publishers from enter-
taining works flirting with copyrighted material. The estates had estab-
lished their own precedent of suing to garnish settlements, so it would be
facetious to claim complete victories for appropriative literature.
That said, there may be some merit to the argument that Randall and
Pera stood to gain from the notoriety and publicity of their high-profile
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cases. The market is supple and elastic; if parodic texts prove to be profit-
able, there may be space for them. Note, for instance, the faux sticker
emblazoned on the cover of The Wind Done Gone, proudly proclaiming
its inauthenticity. Moreover, some property estates have more generous
attitudes toward derivative texts by amateur authors, and with the advent
of e-book publishing lowering production costs, it may be that with enough
momentum, a general shift in attitude will engender a more receptive
reading public and new markets. However, the matter of ideological con-
trol remains; an authors estate will still wield veto power over any dialogic
texts because, structurally, the growing breadth and depth of copyright
law and the continuing contentiousness of fair use protect literary estates
and their properties. For the time being, rogue authors, in the interest of
literary development, have little option but to be extralegal.
This chapter focused on professional authors disrupting canonical texts
through the shrinking pinhole of fair use, but perhaps there is something
to the argument that that practice has little viability in the current legal
climate. However, there are others who, though likeminded in intent,
choose to completely forgo the traditional route to publication. Instead
of engaging with target texts on the same distribution platform, or even
the same medium, these authors openly appropriate with little to no
attempt at artifice. They can do so largely because they operate outside
conventional economies and have little to lose in the way of artistic reputa-
tion because most readers are unaware of their existence. They function
and thrive underground, with a limited readership, limited distribution,
and limited impact. However, in the aggregate, this subterranean creative
class might have a larger impact than the solitary writer. For that story, we
turn to the extralegal amateur.
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2
H O W J A PA N E S E F A N F I C T I O N B E AT
T H E L AW Y E R S
Poetry can only be made out of other poems; novels out of other novels.
Northrop Frye, Anatomy of Criticism
I learned from Osamu Tezukas example to use other artists material in my

own work. I thought, Ah, since the God of Manga does it, its okay if I do as
well.
Tori Miki, Manga and Copyright
th e to ra noan a m a n g a s tore stands just beyond Tokyos Ikebukuro

station, in a well-lit side street off a central thoroughfare. Next door are a
brightly colored arcade, several small diners and noodle shops, and an
assortment of mobile phone companies. At a height of five stories, the
bright orange store is difficult to miss; the open doorway welcomes itin-
erant shoppers with flat-screen TVs broadcasting the latest anime series
or movie trailer on continual loop. There is certainly no inkling of the
illegitimacy taking place on two of the five floors, which are dedicated
entirely to dojinshior illegal parodies of copyrighted material written
by amateur authors.
This is not the lightly regulated black market found in the streets of
New York or Beijing, where small shops and sidewalk entrepreneurs splay
bootlegged DVDs, books, and CDs on cloth blanketseasier to gather
when the gendarme approaches. Nor is this a developing nation that has
yet to enter an international copyright agreementthis is Japan, one of
the premier economies of the world and an impressive site of cultural
exportation as well as importation. It seems counterintuitive that this
5 5
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The Toranoana store in Ikebukuro-ku, Tokyo, Japan, houses a large array of do
jinshi comics
alongside the publications whose copyright they violate. Photograph by the author.
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The Toranoana floor map. While the first two floors sell commercial goods, the third and
fourth floors are completely dedicated to do
jinshi. Photograph by the author.
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store, and others like it, has brick-and-mortar overhead, uniformed employ-
ees, plastic bags brandishing store logos, and very little fear of prosecu-
tion when actively trading in contraband.
This chapter compares two underground amateur industries that fly
in the face of intellectual property regimes, American fan fiction and Japa-
nese do jinshi, to illustrate the disparate results of differing legal, infra-
structural, and cultural environments on similarly illicit creativity. Both
communities employ a dialogic relationship with canonical texts for a
multitude of purposes but have been met with divergent reactions by
industry and legal bodies. I argue that fans who create are an integral part
of cultural evolution beyond the confines of scattered clubs and conven-
tions. Their intertextual engagement with an established authors mate-
rial catalytically stimulates canons to develop. In America, they collectively
produce what is known as fan fiction; in Japan, their product is known as
dojinshi, or amateur manga. I show how these networks of producing con-
sumers interact to stimulate development, how technical advancements
abet or hinder their activities, and how the legacy of copyright regimes
affects subcultural production.
Fan Culture
Many are baffled by fans obsession over popular culture. As Henry Jenkins
has noted, an infamous 1986 Saturday Night Live sketch involving William
Shatner skewering a group of Star Trek fans who pelt him with rigorous
questions regarding obscure details at a convention Q&A. Exasperated,
he erupts, Get a life! and then proceeds to berate them by enumerating
social milestones they may have missed because of their preoccupation
with minutiathe implication being that fans turn to popular culture at
the expense of other areas of their lives. Though the stereotypical image
of Star Trek fans lampooned in the sketch might have been exaggerated
for comic purposes, it underlies the fact that they belabor over material
for no discernible purpose, much to their social detriment.
Across the Pacific in Japan, the similarly scorned otaku (roughly trans-
lated as nerd) is equally, if not more, contemptuously held.1 The otaku
is generally a solitary male short on personal style and hygiene but long
on esoteric knowledge of electronics, manga, and anime. In extreme cases,
some otaku eschew any conventionality extraneous to their hobbies by
ensconcing themselves in their domiciles, having minimal outside con-
tact and only venturing out for sustenance among the ubiquitous vending
5 8 H O W J A PA N E S E F A N F I C T I O N B E AT T H E L A W Y E R S
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machines and twenty-four-hour convenience stores littering the city
scapethe hikkikomori. The less agoraphobic otaku tend to congregate
around electronics, collectible, and game districts such as Den Den Town
in Osaka or the famed Akihabara in Tokyo. Like their American counter-
parts, otaku are known for their fierce dedication to a chosen subject.
There is a temptation to dismiss them as social dregs engaging in campy
leisure activitiesfans dressing as their favorite characters in loud, color-
ful costumes (cosplay) are a favorite target of derision. Yet this only one
aspect of fandom; the larger impact comes from fans actively engaging,
influencing, and producing innovative material. An obsessive attention
to the mundane, multiplied a thousand times over, drives communities
of fans to comment on, reenvision, emulate, and adulate. A smaller con-
tingency of fans, unsatisfied with passive consumption, seeks to engage
dialogically by consciously mimicking the textual landscape and tone, if
not the specific writing style, of particular works and/or authors. Just as
some electronics enthusiasts cannot help themselves in tinkering with a
machine, these fans likewise investigate methods of improvement, devel-
opment, and evolution of a subject. Seeking to recreate and build on estab-
lished worlds to inject their own take on a chosen subject, they engage
the works of its most immediate past and use the historical life of clas-
sical works [as] the uninterrupted process of their social and ideological
re-accentuation.2 In general, these fan-authors have no aspirations for
themselves and little, if any, expectations of financial compensation. Their
reward is in the mastery of the material, the accruement of knowledge,
and the expansion of the subject universe.
In this chapter, I move beyond sanctioned channels to examine disrup-

tive texts dependent on parallel, underground channelsanalogous to
pirate signals broadcasting to a receptive audience. Working within the
literary system, these texts resist stringent copyright restrictions and the
ideology of authorship through nebulous portions of legal statute. Fan fic-
tion and dojinshi, which I collectively refer to as extralegal texts, sustained
by motives other than financial rewards, overwhelm protected literary
channels with their sheer number and range, augmented in part by dis-
persed, decentralized distribution networks and engendered by access to
cheap means of mechanical and digital reproduction. Protected litera-
ture has little option to begrudgingly tolerate extralegal texts and, more
importantly, to expand and diversify the canon, whether by its own voli-
tion or not. The three factors shaping disruptive textualitydistribution
H O W J A P A N E S E F A N F I C T I O N B E A T T H E L A W Y E R S 5 9
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infrastructure, legal policy, and the dialogic impulsecreate the environ-
ment in which fan fiction and do jinshi, extralegal texts, develop and influ-
ence canonicity.
As opposed to professional dialogism, which tends to gravitate toward
high culture, amateur dialogism does not discriminate. Fan fiction is made
of American and English amateur renditions of novels, television shows,
films, and nearly any other popular culture object or figure, ranging from
television shows such as Star Trek and Buffy the Vampire Slayer to more
recent fare such as the Harry Potter series. Do jinshi, the Japanese coun-
terpart, is named for an intricate network of amateur comic books, or
manga. Do jinshi artists and writers use copyrighted characters for their
own materials and purposes; in general, any popular work is fair game.
These are categorically illegal works infringing on the intellectual prop-
erty of established authors working within approved channels of publica-
tion and creative production. Yet even as modern American copyright
tightens in control and broadens in scope (or, in the case of Japan, as legal
infrastructure grows stronger), these extralegal writing circles continue to
not only exist but thrive in the Internet age by growing in diversity, means
of access, and quantity, if not quality. More curious is the perception that
extralegal texts are somehow tacitly tolerated, and despite whatever mer-
etricious means copyright holders might engage to curb their activities,
they continue to persist.
I list several criteria for qualifying work as extralegal. First, extralegal
texts operate outside sanctioned channels of production and distribution.
By declining to seek the approval or recognition of original authors and
publishers and choosing instead to target kindred readers, extralegal texts
bypass editorial and legal barriers. With a select, intimate readership, they
consequently have little incentive or need to tap into an established distri-
bution channel. For example, early do jinshi circles consisted of mailing
lists, in which readers received do jinshi manga by post. When a reader
finished with it, he or she mailed the do jinshi to the next person in the
queue; several cycles later, the reader might find the same manga returned,
a bit worse for wear and with a few more creases in the spine. In America,
fan fiction readers would obtain their material through fanzinescheaply
made, Xeroxed newsletters containing fan fiction distributed through a
local network of associates for a nominal fee to cover production costs.
Because they operate within a hermetic network extraneous to the print
market, there is minimal, if any, overlap with mainstream channels,
exempting extralegal texts from market competition and publicity. The
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reach of most extralegal texts is limited enough so that it would be unprof-
itable for copyright holders to pursue legal action against them because
there is no real base of operations or legally actionable entity, just a loose
association of amateur writers and readers. Furthermore, because readers
of extralegal texts are already followers of the original works, they would
have already contributed to the economic rent of copyright holders; it
would make little sense to argue that they spend time or money on objects
that compete with the original.3 The only conceivable reason an author or
copyright holder might have for pursuing litigation would be moral out-
rage; they might feel that their right to control their creative property has
been violated and seek redress. A few popular authors, such as Anne Rice,
object to fan fiction on similar grounds; several years ago, she directly
addressed fan fiction writers in a statement posted on her website:
I do not allow fan fiction. The characters are copyrighted. It upsets me ter-
ribly to even think about fan fiction with my characters. I advise my readers
to write your own original stories with your own characters. It is absolutely
essential that you respect my wishes.4
Rices objection, argues Sheenagh Pugh, is more emotional than commer-

cial: it upsets her to think of her characters being manipulated by any
other puppeteer.5 She is more concerned with retaining sole creative con-
trol over her characters, which may be rooted in a belief in the rights of
property rather than the legal boundaries of copyright code.6 Most authors
who find fan fiction objectionable will not go as far as to sue their fans;
they may have their lawyers send out a batch of cease and desist orders
to websites hosting the offending material, but that seems to be the extent
of most efforts.
Second, the sheer size and decentralized structure of extralegal works
preclude any meaningful efforts at curbing output. A search for online
fan fiction databases results in innumerable sources; it would be impos-
sible to sift through them exhaustively in the scope of this essay, but a
cursory glance reveals fan fiction works covering some of the most con-
temporary pop cultural works (Harry Potter, Lost, X-Files, Star Wars, Star
Trek, Battle Star Galactica, Xena), an equally plentiful section of obscure
or outdated works (CHiPs, Back to the Future, Gargoyles, Days of Our Lives,
Scooby-Doo, Bonanza, The A-Team, various role-playing games), and an
assortment resistant to easy categorization (fan fictions based on bands,
crossovers, erotica). Do jinshi wields an equal, if not more impressive, range
of material, covering just about any manga or popular cultural artifact
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that has ever entered the public consciousness. Cease and desist orders
may shut down a website or two, but many of these works are mirrored
and cross-posted in a multitude of databases; sooner or later, another site
will emerge to fill available niches. When fan fiction operated in local
underground networks, it worked in dispersed, independent cells, mak-
ing them difficult to pin down because they had no official standing or
central location. Moving online made it easier for prosecutors to track
down the architects of each site as they transitioned from bulletin boards
to electronic mailing lists, aggregate websites, and blogging engines. But
the move toward digital also expanded the community exponentially, cre-
ating a dynamic pitting a few against many nameless fans. In effect, one
barrier was traded for another.
Third, the extralegal textual community is not motivated largely by the
prospect of financial gain. Writers of fan fiction are generally wary of gar-
nering profits; if they do accidentally edge toward profitability, many
quickly donate their net gains to charity.7 There are often disclaimers in
their works explicitly asking the reader to purchase and support the origi-
nal author and not to use fan fiction as a substitute or replacement.8
Do jinshi authors do sell their works in limited circles, usually at large comic
book conventions, but their distribution range is limited and designed to
avoid excessive attention. One possible explanation may be that extra
legal writers cannot openly profit off the intellectual property of others
because they might see that as a betrayal of a beloved work or author;
another explanation may be that they are wary of attracting the gaze of a
litigious estatedenying profitability as their central motivation may be
a means of skirting legal attention.
A Question of Motive
If the financial rewards are few, or, in many cases, nonexistent, why do
they write? The short answer, as articulated by various scholars who have
studied the subject, is that fan fiction writers write because they are
investedemotionally, politically, or criticallyin the material. Several
theories articulate the fans relationship to the text and the author; I address
that in more depth later. In the context of my argument, it is less impor-
tant to formulate a theory explaining motive than it is to analyze the rela-
tionship between extralegal texts and the original works.
Whereas in the preceding chapter I concentrated on solitary authors
upsetting the literary system, this chapter concentrates on communal
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writing efforts, communal texts, and the multitudinous reader-writer. No
single, paradigmatic text usurps the authority of the original; instead, there
is an entire body of work, a polyvocal, textual metropolis bustling under-
neath the surface of the protected canon. In other words, the fan com-
munity upends the single author and artifact.
Because I examine an entire industry of writing in lieu of specific texts,
it is necessary to establish scope. My purpose is not to provide an exhaus-
tive overview of fan fiction; though it will be necessary to retread some
areas already covered by others for expository purposes, the central aim
will be to reframe extralegal texts within a larger argument. I am inter-
ested in studying fan fiction and do jinshi as disruptive agents that act as
regulating devices within a literary system. That they are categorically
illegal industries yet continue to thrive as well as possibly exert a measure
of influence over the direction of protected literature is a contradiction
that calls for examination. The two relevant questions, belatedly presented,
are as follows: if it is accepted that copyright law and publishing practices
are ruled, if not driven, by economic incentives, how is it that extralegal
texts audaciously violate those same laws? Moreover, if we accept the
notion that extralegal texts have found a way to enjoy unfettered produc-
tion outside conventional channels, how do they influence canonical texts?
Juxtaposing do jinshi with fan fiction is a useful exercise in revealing
some of the underlying factors that may determine the generic develop-
ment within each subculture. Although American and English fan fiction
may enjoy a healthy rate of output, do jinshi is by far the more established
and quasi-institutionalized system of extralegal activity. Given that the
Japanese copyright system is similar to the American system, it is puz-
zling that do jinshi is openly accepted as a part of the creative cultural
establishment. Tensions exist, of course, but do jinshi enjoys a degree of
acceptance in Japan that eludes fan fiction in the United States. A partial
reason may be the professionalism and quality of do jinshi work, as opposed
to most fan fiction, which often lacks an equivalent polish. With do jinshi
the quality of the artwork and narrative is at times indistinguishable from
that of the original, whereas fan fiction tends to pay little to no attention
to the material aesthetics of the text.9 For instance, early fan fiction was
published in cheaply produced, black-and-white fanzines, and online fan
fiction is rendered as simple text or HTML. Another possible reason ex-
plaining do jinshis advanced professionalism may be that there are far
more opportunities in Japan for do jinshi authors to transition into main-
stream publishing; some creators straddle both worlds and transition back
umpRoh.indd 63 27/10/2015 3:10:20 PM

and forth between professional and do jinshi work. However, these are ulti-
mately unsatisfactory rationales, because they are more symptomatic,
rather than the cause, of dojinshi institutionalization.
Also, that does not address the question of why Japanese copyright
holders remain on the sidelines when it comes to protecting their intel-
lectual property interests. If anything, the public nature of do jinshi con-
ventions, where trading is openly conducted, and the professional-grade
quality of the work should be ample cause for concern, because do jinshi
could directly compete. However, it is necessary first to answer the fol-
lowing: what is fan fiction? What is do jinshi?
Fan Fiction
Even the most uninitiated reader has likely heard of the slash variety of
fan fiction, in which a canonically heterosexual male character is paired
with a partner or close friend in a homosexual relationship. Much of the
popular literature on fan fiction tends to gravitate toward slash because
of its subversive and sensationalist qualities. However, the slash genre is
only a drop in a stream of existing literature. In truth, fan fiction has a
surfeit of categories, with a wide array of motivations, purposes, and ide-
ologies. A small sampling of genres, and their abbreviations, include gen
(general), het (heterosexual), slash (homosexual), OTP (one true pairing),
h/c (hurt/comfort), mpreg (male pregnancy), episode fix, missing scene,
AU (alternate universe), fluff, PWP (porn without plot, or Plot? What plot?),
and Mary Sue/Marty Stu.10 It would be unfair to reduce fan fiction to a
sect of writers exclusively working on gay erotica; contrary to the assump-
tion that slash fiction writers are homosexual men, most are actually het-
erosexual women. That the origins of slash fan fiction, and, by extension,
fan fiction in general, tend to defy common assumptions asks us to reex-
amine the context, purpose, and consequences of fan fiction writing.
Let us formulate a working definition of fan fiction, borrowed from
Pugh. A fan fiction is a text written by an amateur writer that directly lifts
characters and settings to create new narratives. Using a chosen work or
author as a foundation, a fan fiction writer commonly creates a text cor-
recting a perceived flaw or deficiency or re-presents a direction that may
be subversive, outrageous, or nonsensical (wanting more from). Alter-
natively, a fan fiction writer may augment, embellish, or expand a text,
staying true to the spirit of the original or the authors vision (wanting
more of).11 Regardless of their motives for writing, fan fiction writers
umpRoh.indd 64 27/10/2015 3:10:20 PM

tend to share several characteristics. First, they are strong admirers of a
particular work with detailed knowledge of its canon. Fan fiction writers
do not choose their subjects indiscriminately; they are driven by a deep
admiration and respect for a particular work, author, or character. Their
relationship to the work imparts a near-encyclopedic understanding of
its mythos; a less knowledgeable fan fiction writer might commit a care-
less error that would be immediately recognized by others as ignorance
of, and not embellishment of, canon, which would earn the scorn and con-
tempt of the community. Second, fan fiction writers belong to a commu-
nity that shares information, argues, and theorizes. Before the early 1990s,
fan fiction communities communicated through newsletters, through fan-
zines, at private gatherings, or at conventions. Later, online Bulletin Board
Systems (BBSs), commercial online communities (America OnLine, Com-
puServe, Prodigy), e-mail, and the World Wide Web (websites, forums,
blogs) largely replaced print media. Fan fiction writers write for their
respective communities, who in turn respond to their call with encourage-
ment, suggestions, and criticism. Few have delusions of reaching an audi-
ence beyond their specific fan fiction community. Last, most amateurs
write without any expectation of financial reward and instead only ask for
a readership to respond with feedback regarding their shared obsessions.
A number of critics have attempted to address the phenomenon. Accord-
ing to Jonathan Gray, Cornel Sandvoss, and C. Lee Harrington, theoretical
takes on fan fiction can be roughly divided into three parts. The vanguard
wave framed fan fiction in the context of power disparities, led by Henry
Jenkins, Camille Bacon-Smith, Roberta Pearson, Constance Penley, and
John Tulloch. The second wave took the opposite tactic, arguing that fan
fiction did nothing to challenge power differentials but instead replicated
them. The self-proclaimed third wave broadens fan fiction as fan stud-
ies to encompass all audiences that have relationships with products.
Early studies of fan fiction, the first wave, have the more established
body of work. Henry Jenkins, drawing on the work of Michel de Certeau
and distinguishing between strategies of the powerful and tactics of the
disempowered, depicts fan fiction as part of a power dichotomy. De Cer-
teau presented a theory of readership in which producers and consumers
operate in conflict with one another; the landowners and the poach-
ers are marked by a power differential. The poachers transgress on owned
landscapes of material and text as a means of claiming resources that
they have been denied. Jenkins argues that fans, similarly motivated by a
combination of adoration and frustration, reread and recontextualize texts
umpRoh.indd 65 27/10/2015 3:10:20 PM

to serve their own purposes. They actively assert their mastery over the
mass-produced texts which provide the raw materials for their own cul-
tural productions and the basis for their social interactions.12 Fan fiction
writers were textual poachers exploring texts as sites of class struggle
engaging in guerilla warfare. He writes,
Like the poachers of old, fans operate from a position of cultural marginality
and social weakness. Like other popular readers, fans lack direct access to
the means of commercial cultural production and have only the most limited
resources with which to influence [the] entertainment industrys decisions.13
Constance Penley takes a similar position, commenting on gender dynam-

ics with a psychoanalytic look at the complicated relationship between het-
erosexual women and slash.14 And using an anthropological, ethnographic
lens, Camille Bacon-Smith examines the female community in fan fic-
tion.15 Although first wave theories proved appealing to fan fiction writers
and the raceclassgender movement within cultural studies, the under-
class theory is somewhat weakened by the growing awareness of fans as
an increasingly important part of the cultural production process. Jona-
than Gray et al. point out that as the spending power of fans grew, the film
and television industry learned to accept their input as part of the creative
processgoing as far as pandering to them every year at fan-centered
conventions, most notably the San Diego Comic Book Convention, at
which a cavalcade of comic book vendors, movie studios, directors, and
film stars promote upcoming film projects and merchandise.16 The ben-
efit is that invested fans create the necessary word-of-mouth buzz on the
Internet to shore up the numbers for a large opening weekend, the lynch-
pin of a films economic viability in modern studio business models.
In what could be read as a reactionary response, a faction of scholars
argue that fan fiction, and fandom at large, replicate hierarchies rather
than subvert or challenge inequal power dynamics. As opposed to Jen-
kinss notion of fans as monolithic textual poachers, fans are a far more
diverse group of invested readers and writers than previously considered,
and their differing ideological, economic, social, and cultural backgrounds
bleed into their writing and reception of extralegal texts. In this light, fans
are seen not as a counterforce to existing social hierarchies and structures
but, in sharp contrast, as agents of maintaining social and cultural sys-
tems of classification and thus existing hierarchies.17
Troubled by the narrow focus of their predecessors, the third wave
of scholars look to broaden and diversify the scope of fan studies. They
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contend that fandom is not an isolated subsection but integrated into the
conditions of daily life, making audience participation an emotional and
invested practice:
studies of fan audiences help us to understand and meet challenges far

beyond the realm of popular culture because they tell us something about
the way in which we relate to those around us, as well as the way we read
the mediated texts that constitute an ever larger part of our horizon of expe-
rience. Fans, for better or for worse, tend to engage with these texts not in a
rationally detached but in an emotionally involved and invested way.18
In shifting the focus of fan fiction from the fans themselves and their texts
to the relationship of reader, writer, and text, third wave scholars are able
to justify their study as part of a larger project analyzing the literary ex-
perience rather than as a fixed object or fashionable ideological move-
ment. This misdirected focus, contends Cornel Sandvoss, led fan studies
[to] have neglected the act of reading as the interface between micro
(reader) and macro (the text and its systems of productions).19 In other
words, Sandvoss argues that aesthetic value lies not with the text or the
reader but with the process of interaction between reader, author, and
text. The fan texts themselves form a field of gravity, which may or may
not have an urtext in its epicenter, but which in any case corresponds
with the fundamental meaning structure through which all these texts
are read.20
In a reconciliatory effort, Abigail Derecho attempts to bridge the more
appealing aspects of the first and third wave movements by arguing for an
open interpretation of fan fiction as part of a larger intertextual system,
which, borrowing from Derrida, she terms archontic literature. Derrida
writes that the archive is an infinite, exposed collection of texts eschew-
ing authority and eternally evolving. In addition to being intertextualas
all texts already arearchontic literature explicitly recognizes and cele-
brates itself as a variation on another text. Even as she includes fan fiction
as part of a larger textual dynamic, she stipulates that its most effective
form is subversive; in the past several centuries, subordinate factions took
to the pen to write themselves into the fabric of societyfirst with women,
followed by other minority groups, most notably in postcolonial and eth-
nic literatures. Derecho echoes the same general conclusion of many of
her predecessors: I believe that the larger philosophical import of this
type of writing is that it undermines conventional notions of authority,
boundaries, and property.21
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Though transgression of authority and property is integral to the herme-
neutics of fan fiction, it should be noted that it is a means and not an end.
Instead, the focus on fan fiction as disruptive force should be on the rela-
tionship between protected and extralegal texts and how the breaching
of boundaries, authority, and property shapes and alters both protected
and extralegal texts. Fan fiction may indeed be more diverse than the
simple masterslave binary evident in first wave scholarship, and there
may be some credence in the theory that representative slices of contem-
porary hierarchies are reproduced in fan fiction. The third wave scholars
come closest to articulating a robust theory of fan fiction by resituating it
within a representative framework indelibly tied to the vicissitudes of the
reading experience. However, social hierarchies are not fixed objects, and
neither the relationship between fan fiction and protected literature nor
between fan and author is prone to stasis. They are dynamic entities in a
textual system competing for dominance and canonicity. Extralegal texts
violate convention because that is their function; within a textual system,
they constantly challenge protected literature. This, in turn, compels
canonical literature to adapt and change accordingly, as extralegal texts
will return to compete with new angles.
Meanwhile, extant hierarchies in mainstream readerships do not stand
idly by; they actively participate and contribute to evolving along with the
canon as it shifts and groans to accommodate change. Thus one will find
that the subversive fan fiction elements of yesterday may not be as threat-
ening or innovative today. Slash fan fiction, for example, is not nearly as
controversial now as it was when it first appeared, and one can see its
influence among contemporary writers who integrate gay characters pre-
viously considered sexually ambiguous. When J.K. Rowling, author of the
popular Harry Potter series, acknowledged to wild applause and cheers
in a lecture at Carnegie Hall that major character Dumbledore was indeed
gay, she quipped, Oh, my God, the fan fiction now!22 Rowlings state-
ment belies a serious consciousness of fan fiction and the running paral-
lel commentary on her writing by her fans. Authors and readers are highly
cognizant of an extralegal textual landscape shifting and morphing with
each utterance by either party.
Manga and Djinshi
To properly understand do jinshi, we must begin with a brief expository

narrative of its parent medium, manga. When American readers think of
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comic books, they tend to conjure up images of colorful superheroes in
formfitting costumes battling grotesque creatures. To most Americans,
comics are a juvenile medium targeted at adolescent boys and collectors;
according to popular thought, comic books by and large remain the domain
of younger readers who have not yet advanced to high literature. However,
in Japan, manga plays a considerably different role, influencing even main-
stream literary writers.23 With a 99 percent literacy rate, Japan has a siz-
able and voracious reading public and no shortage of texts. In 2005 alone,
4.96 billion books and magazines were produced. Of these, 1.35 billion,
or 27 percent, belonged to manga.24 Although most manga target young
men as their primary readership, the actual reading body is quite diverse;
titles target children, adolescent boys and girls, college students, young
women, and businessmen. Typical topics include school and office ro-
mances, action thrillers, samurai epics, military adventures, sports, his-
torical fiction, and even right-wing revisionist propaganda. The typical
manga book is quite thick in comparison to American comic books, which
generally run at a length of thirty pages, with eight pages of advertisements.
Manga, conversely, rival phone books in thickness and heft at around three
hundred pages with little more than eight pages of advertisements. Printed
on cheap recycled paper, the major titles put out new editions on a weekly
basis, usually consisting of several different series packed together in one
volume. They are found literally anywhere and everywherein subway
kiosks, coffee shops, bookstores, convenience stores, barbershops, librar-
ies, bars, noodle shops, and even vending machines. Contributing to man-
gas pervasiveness is the fact that it is generally not collected as a fetish
commodity; once a reader finishes a book, he or she will pass it on to
someone else, throw it away, or leave it behind on a subway train for oth-
ers to find and enjoy (mawashiyomi).25 In short, manga readers constitute
a significant share of the Japanese reading public across demographics.26
Japanese readers quickly embraced manga, but it was not until the
1960s, well after the Pacific War, that manga entered the mainstream.27
They began humbly in the 1920s as newspaper comic strips, much like
their American counterparts, which were a strong influence. The end of
the 1920s engendered more politically poignant comics, but in the 1930s,
wartime Japan coopted manga as an avenue for government propaganda.
During the postwar period, manga artists (mangaka) started working again
for manga rental shops (kashihonya), producing quick and cheap manga
for very little compensation. It was during this period that the revered
Osamu Tezuka (dubbed the God of Manga, manga no kamisama), who
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has been credited with saving the manga industry, published New Treasure
Island (Shin Takarajima) in 1947, selling four hundred thousand copies
and igniting an explosion in the popularity of manga. He would later go
on to create the iconic Astro Boy (Atomu Taishi, aka Tetsuwan Atomu) and
Kimba, the White Lion (Janguru Taitei).28 Afterward, in the 1960s, manga
transformed into its contemporary form, shifting from a monthly to weekly
schedule and becoming more systemized with a hierarchy of editors, art-
ists, background artists, low-level assistants, and writersin other words,
an organized, formal publishing structure. Today, manga is used not only
as a form of affordable entertainment but also as a means of conveying
information through posters, warning signs, and corporate manuals. It is
even used to explain complex academic subjects, such as political sci-
ence, economics, math, and history.
What can be taken from this shortened overview is that in Japan, manga
rivals conventional print literature and other media as a source of infor-
mation, entertainment, and culture. As Sharon Kinsella argues, mangas
prolific reach and prevalence qualifies it as not only a subsection of print
but its own distinctive medium:
Though often thought of by foreign observers, as a specialized cultural trope

with strongly defined themes such as pornography and science fiction fan-
tasy, manga is primarily a medium. Like television, literature or film, the
manga medium carries an immense range of cultural material.29
If we accept manga as a medium, then it would not be considered a stretch

to draw an analogy between mangado jinshi and protected literature
extralegal texts, such as fan fiction.30 Both do jinshi and unsanctioned lit-
erature disrupt, usurp, complicate, and problematize rather than sharpen
a signal.
Let us formulate a working definition of do jinshi: manga written and
illustrated by amateurs, often fans, for limited distribution, from a criti-
cal, humorous, satirical, emulative, or erotic perspective.31 Many do jinshi
are amateur renditions of popular works, including other manga, anime,
films, or video games.32 Beginning in the 1960s, access to cheaper print-
ing technologies and a need for a creative outlet outside of the conven-
tional systems of education and commerce engendered a brand of amateur
manga that went largely unnoticed or ignored by mainstream agencies.
According to Kinsella, one can find do jinshi infrastructures taking shape
relatively early in student life; manga clubs and study groups are com-
mon sights at universities, high schools, and junior high schools across
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Japan. The typical do jinshi artist will most likely be a young woman or
college-aged man illustrating narratives that reflect a wider diversity of
interests than those found in mainstream manga. Like their American
counterpart, do jinshi harbors many genres, including orijinaru (original
works), aniparo (parodies of anime), june mono (romantic stories with gay
men), yaoi (parodies of popular anime or manga in which the lead straight
men are depicted as gay), bisho jo (manga starring attractive girls), and
lolikon (Lolita complex).33 The production quality, as well as the skill of
the do jinshi artists, tends to vary, but a number of professional-grade
dojinshi artists have developed large followings.
What began as a loose collection of amateur artists and readers grew
into an enormous underground industry with its own secondary markets.
Most of the promotion and sales of do jinshi occur during massive con-
ventions; manga scholar Frederik Schodt, on visiting one of the smaller
conventions, was stunned by the level of organization, diversity of mate-
rials, and sheer mass of people involved:
Super Comic City 3 was awe-inspiring, illustrating that the do

jinshi subcul-
ture has become an industry unto itself. Amateurs pool their funds and
issue small printruns of their books (ranging from 100 to 6,000 copies) at a
level of quality that rivals the mainstream manga industry. Hardbound books
with lavish color covers and offset printing are not uncommon.34
Every year, more than four hundred thousand attendees flood the Comiket convention in
Tokyo, Japan. Photograph by the author.
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Comiket participants browse artists tables. Visible is only a small fraction of only one of
three massive halls, each of which is filled with do
jinshi creators and readers. Photograph
by the author.
The larger conventions are an even more intimidating spectacle, the larg-
est being Comiket, in which upward of four hundred thousand people
may participate over the period of three days.35 A research trip to Comiket
2010, a massive spectacle held at Tokyo Big Sight, confirmed much of
Schodts and Yonezawas claims. Throughout the day, a swell of convention-
goers poured in from the subway station and descended upon the halls;
the scale was so large that it was difficult to grasp the sheer magnitude
of the event. An unscientific examination of participant demographics
revealed that the slight majority of them appeared to be women in their
twenties and thirties, including the authors. Surprisingly, it seemed that
high school students were in the minority of conventioneersthere were
few, if any, children visible. Separated by several massive halls, Comiket
divided artists according to subject matter and genreand if a customer
had extensive tastes, she would be forced to traverse from one section to
the next in search of interesting do jinshi. Transportation of purchases
could be a problem; experienced participants came prepared with roller
suitcases to collect their wares, whereas others made use of free tote bags
distributed by advertisers and manga publishers. Those who arrived with
suitcases but did not want to lug them back to their suburban homes on
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the subway checked their bags with a takkyu bin (delivery) service, which
stored bags at various designated areas for same-day delivery. A strong
sense of determination and an organized plan of attack aided by an ex-
haustive catalog are required of convention participants to successfully
procure their favorite do jinshi artists work. And because the supply is
sharply finite, competition is fierce. But for do
jinshi fans, the barriers seem
well worth the effort to participate in a community-centered mode of
textual production outside normal channels.
What was most striking was that the line between producer and con-
sumer was actively blurred on site. It was common to see artists reading
do
jinshi they had just purchased from other artists, and rows of custom-
ers sitting idly were either reading their purchases or sketching in draw-
ing pads out of boredom or inspiration. Artists were generally on friendly
terms with their customers, and it seemed like more than a few had exist-
ing relationships from the convention circuit or through correspondence.
Additionally, a minority of participants came dressed in costume as a char-
acter from a favorite series (cosplay). After the convention closed its
doors for the day (at 3:00 pm), a cosplay meeting occurred in front of the
hall, in which friends posed for pictures. Interestingly, this observer noticed
two male cosplay attendees posing for photographs in a staged amorous
A do
jinshi patron with a collection of wares carried in free tote bags given away by vendors
and sponsors. Photograph by the author.
umpRoh.indd 73 27/10/2015 3:10:21 PM

More experienced patrons come prepared with roller suitcases to ferry their purchases
home. Photograph by the author.
Suitcases filled with do

jinshi await pick-up by takkyu
bin (delivery) services. On-site auxiliary
services provide infrastructural support for the gray market. Photograph by the author.
umpRoh.indd 74 27/10/2015 3:10:21 PM

A page from the 2010 Summer Comiket Catalog. Convention participants use the catalog to
navigate the artists booths. Each frame represents a different do
jinshi artists rendition of a
popular manga or anime series. This particular page is devoted to do jinshi based on video
games. From the 2010 Comiket Catalog.
umpRoh.indd 75 27/10/2015 3:10:22 PM

embrace, signifying that they were actually miming characters in the yaoi
genre rather than canon.
Dojinshi trading is not restricted to conventions; major commercial
manga stores stock do jinshi, sold side by side with their legitimate coun-
terparts. Let us revisit the Toranoana manga store in Ikebukuro. The third
floor holds do jinshi mostly belonging to the yaoi genre, patronized mostly
by women. Titles are separated according to either subject matter or genre.
Some categories include Personification, Durarara, Hetaria Axis (two
popular manga/anime), new releases, and even a section called commer-
cial comics. Do jinshi on the fourth floor are separated mostly by media
anime, games, and manga. Both floors have adult do jinshi sections that
take up nearly half the floor space; the mens adult section, it goes without
saying, has a larger share.
English-language scholarly information on do jinshi comes mostly from
comparative legal studies or Japanese cultural studies. I have encountered
only a handful of references to do jinshi in fan fiction studies; fan studies
scholars seem curious about do jinshi because of the obvious parallels,
but they have yet to incorporate it into their efforts to theorize fan fiction,
most likely owing to the language barrier. Japanese scholars Kazuko Suzuki
and Sharon Kinsella are two notable exceptions, but they do little more
than note some striking similarities between fan fiction and do jinshi in
passing; critic and author Eiji O tsuka provides probably the most valu-
able theorization of do jinshi most germane to this discussion. Law pro-
fessor Salil Mehra provides an astute analysis of how manga and do jinshi
skirt copyright issues in Japan as a point of comparative legal study, but
the connection to fan fiction is more implicit than explicit.
Suzuki concentrates her focus on a subsection of do jinshi that holds
the most superficial resemblance to slash fan fiction. During the early days
of dojinshi, contemporaneous with the feminist movement in Japan, the
booths at Comiket were flooded with a brand of do jinshi called yaoi. The
term is an acronym for yamanashi, ochinashi, iminashi (no climax, no
punch line, no meaning). At Comiket, 60 to 70 percent of manga sold were
of the yaoi category.36 In general, yaoi tends to focus on androgynously
drawn males engaged in highly stylized, gay relationships. The vast major-
ity of yaoi readers and writers are women, but a small male minority par-
ticipates as well. In her analysis, Suzuki argues that the emergence and
rapid rise of yaoi was the result of a sense of frustration with the objecti-
fication of women in the media.37 Female do jinshi artists and readers
desired to read narratives objectifying men in the same way, reversing the
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A yaoi rendition of Durarara. Yaoi tend to depict canonically heterosexual male characters
(Shizuo Heiwajima and Izaya Orihara) in highly stylized gay relationships. Authors: Yuki
(http://yuuki283.blog99.fc2.com/) and Haru Minagawa (http://laparco.com/).
umpRoh.indd 77 27/10/2015 3:10:22 PM

A more lighthearted Durarara do
jinshi. Author: Midori Fujinomiya (http://colobocs
.web.fc2.com/).
umpRoh.indd 78 27/10/2015 3:10:22 PM

American cultural artifacts are not immune to do jinshi treatment. The cover of this yaoi
do
jinshi anthology concentrates on characters from the Transformers franchise,
Soundwave and Starscream, in romantic embrace. Cover artist: Mariko. Publisher:
Naru (http://081.in/yshn).
umpRoh.indd 79 27/10/2015 3:10:22 PM

umpRoh.indd 80
27/10/2015 3:10:23 PM
The diversity of approaches is impressive. This particular do

jinshi artist has chosen the recent live-action Transformers film
adaptations rather than the 1980s-era animated series as the basis of her artistic interpretation. Author: Sakai (http://www
.coral-wakake.com/).
logic of subjugation. Indeed, some of the yaoi relationships depicted were
physically and sexually violent, with one dominant male character forc-
ing himself on another. Suzukis reading of yaoi do jinshi places it within
a reversed subjugatedsubjugator framework. Female yaoi artists, in short,
wanted to exert agency over the idea of the male in a way that was non-
threatening (to women) and emotionally charged.38
Kinsella argues more expansively, depicting do jinshi as a wholesale
response by the disaffected and powerless to mangas cooptation by main-
stream and corporate interests. In a detailed history of manga, Kinsella
demonstrates how manga grew from urban labor roots into an organic
medium with strong leftist tendencies that was subsequently appropri-
ated by elite interests once mangas popularity reached critical mass. From
this same social structure emphasizing education and social status came
a backlash of young men and women who had been denied entry into the
top schools and companies. She sees this as an unanticipated reaction to
the advent of cheap printing technologies and disaffected readers respond-
ing to a sanitized, profit-driven mode of manga production.39 Like Suzuki,
Kinsella paints the emergence of do jinshi as a revolt of the disenfran-
chiseda play of power dynamics. Still, the question of how do jinshi de-
veloped from cheaply printed leaflets into professional-grade books is left
unanswered.
In an essay articulating a possible framework for understanding do jin-

shi, Eiji Otsuka ruminates on the phenomenon of children buying pack-
ets of Bikkuriman chocolates for the bonus stickers rather than the sweets
themselves, which are often discarded without being eaten. O tsuka notes
that given enough stickers, a small narrative emerges, which adds to the
totality of the Bikkuriman grand narrative; what is being consumed,
then, is a system rather than single narrative thread. He writes,
The ideal is that each one of these individual settings will as a totality form
a greater order, a united whole. The accumulation of settings into a single
totality is what people in the animation field are accustomed to calling the
worldview.... Theoretically speaking, this also means that countless other
dramas could exist if someone else were made the central character.40
tsuka has created a rationale and rationality for

Given this articulation, O
the existence and proliferation of do jinshi, which can now be explained
as a mode of narrative consumption. And though O tsuka never explic-
itly refers to formalism, he draws on the tradition of Kabuki theater to
show how premodern theater explored worlds and variations on those
umpRoh.indd 81 27/10/2015 3:10:23 PM

worlds to explain modern do jinshis cultural roots. Thus, in a discussion
of O tsukas work, Marc Steinberg observes that O tsuka legitimates fan pro-
duction as integral to the world-building process of narrative: consum-
ers can produce small narratives of their own: in short, fan production, or
what is known in Japan as secondary production (niji so saku). This pro-
duction of new narratives uses the worldview presented through existing
narrative fragments as its basis, effectively rendering the distinction be-
tween copy and original irrelevant.41
Salil Mehra comes closest to addressing the conditions enabling do jin-
shis maturation in his legal analysis of the do jinshi phenomenon by ques-
tioning one of the main tenets of copyright law, that strong protection
provides the proper incentives for spurring creativity and innovation. He
points out that do jinshis commercial elements preclude it from legally
qualifying as parody, for parody requires critical or transformative com-
mentary about the original to fulfill its essential purpose (see chapter 1).
Dojinshi, conversely, purports to expand, alter, and parallel the original
work rather than directly criticize.42 One could argue that the expansion
of the textual universe could be considered transformative, but, like fan
fiction, do jinshi refrains from claiming canonicity; there is a constant, clear
delineation between the canonical and noncanonical texts, at least for the
dojinshi artists. If there is a criticism embedded in do jinshi, it is usually
against an archetype or larger social trend. Also, while originally circum-
scribed to small circles, some do jinshi have gained a degree of popularity
that would be difficult to describe as limited. Mehra writes,
While the justification is occasionally heard that do

jinshi are non-commercial,
that would appear to be hard to reconcile with several facts. First, the Japa-
nese calendar is littered with sales conventions of do
jinshi. While not every
such event fills Japans largest convention center with 150,000 people per
day, the fact remains that there are probably millions of do
jinshi purchas-
ers. Some of these conventions are run by for-profit firms, and even those
that are not may serve as useful fora for other profit making enterprises.
Additionally, the total dollar sales of the largest of these markets exceeds $15
million per daywhich does not include the price of the $10 catalog/pro-
gram guide that virtually every attendee must buy in order to make some
sense of the gigantic, overcrowded marketplace. Finally, the how-to manu-
als on creating do
jinshi are pretty clear on the sales motive for individuals
pursuing the hobby as the titles of the manuals make clear. Successful
jinshi artists can sell 6,000 copies of an individual book at more than 600
do
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[~$6] eachnot quite the level of profitability of a best-selling novel, but not
a mere hobby either.43
Mehra further speculates that despite do jinshis flagrant violation of copy-

right law, the creative community in Japan seems to thrive because looser
interpretations of copyright allow both mainstream and do jinshi creators
to poach from common materials without the burden of clearing rights.44
The commercialization of do jinshi, though miniscule in comparison to
mainstream publishers, may be necessary for the health of the manga
industry so that do jinshi can find a responsive audience and do jinshi art-
ists are encouraged to develop their skills and produce. The implication
for American readers is that the increasing strength and breadth of copy-
right may be counter to its purpose of advancing the sciences and useful
arts. Likewise, fan fiction and other extralegal texts may benefit from a
small degree of commercialization, should they ever escape notice.
In Manga and Copyright: Parody, Citation, and Do jinshi (Manga to
chosakuken: parodei to inyo to do jinshi), published by the Comiket Orga-
nizing Committee, Yoshihiro Yonezawa synthesizes the industry response
to dojinshi.45 In his introductory remarks during the Comiket symposium
on do jinshi and parody, Yonezawa argues that the mediums collaborative
nature leads to a predilection for borrowing in form and substance:
If something completely original was created, its possible that it would be

something that no one would be able to comprehend. In mangas case, theres
a measure of commonality or of known quantitiespatterns in designs,
circles, squareswhere the creative parts come from. Someone first drew
themspeech balloons, keridashi, various sound effectsin a manga, and
then everyone came to use them; it became the lingua franca. Manga has
created its own method of development, which includes what may strike us
as being un-original and un-individualistic. Yet Manga remains, I think, really
different from other forms of expression.46
Essentially a transcription of two symposia held in 2000, the book pro-

vides a roundtable discussion of manga by a group of creators, critics,
editors, and legal scholars on whether the practice of do
jinshi is protected
as parody. Though there is a spectrum of opinions represented by indus-
try members, the consensus seems to be that the collaborative process in
manga and do jinshi creates communal wealth that needs to remain open
for the creative community to thriveand parody provides the proper
legal framework to circumvent legal restrictions.
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Canonicity, Disrupted
Clearly there are strong affinities between fan fiction and do jinshi. Crit-
ics, working independently of each other, studying similar but distinct
subjects, reached parallel conclusions casting underground modes of writ-
ing as a repudiation of uneven power dynamics. In the theoretical over-
views presented, scholars suggested myriad possible reasons: fans desire
to equalize the power dynamics between author and reader; they write to
castigate certain social mores, works, or authors; they write to emulate
and abet; they poach because it is easier to copy than to create their own
original universes; they write to battle ennui, and so on. These are all pos-
sible answers with their own merits, but they concentrate on the mecha-
nisms for production. I am less interested in motives and more interested
in the larger consequences of amateur fiction; I leave the question of why
to others.
In a communications model, information directly correlates to the
number of possible choices. An innumerable selection of renditions of
a particular mythos expands the universe to be more inclusive rather
than exclusively hegemonic. Indeed, ours is a reading culture that resists
information-regression; multiplicity is sought and desired. Consider how
there are multiple versions of folktales, myths, religious iconography, and
other symbolic figures, with each iteration the result of a small contribu-
tion by an engrossed bard, prophet, or storyteller. Consider how a diversity
of choice in cultural artifacts is celebratedmultiple editions of a work;
multiple translations of a foreign-language text; a multitude of forking
paths with open-source software projects. Each edition brings a slightly
different perspective and expands the universe of a text to include another
readership. With time, a definitive or leading tale may emerge, until another
takes its place as the cultural milieu and literary system evolves. Extra
legal texts follow the same logic of information expansion. The readership
provides, through various means and methods, expansion, growth, mat-
uration, and perhaps a popular favorite. Fan fiction and do jinshi creators
openly write with the canon in mind, and the canon in turn either adapts
to stay relevant or faces obsolescence.47
According to formalist thoughts on variation and innovation, extralegal
texts value lies in their deviation from the prevailing artistic norm. The
formalist tendency to concentrate on generic shifts works particularly
well here, as an extralegal landscape littered with subgenres illustrates the
results of formalist mechanics at work. A glance at the variegated subgenres
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of both fan fiction and do jinshi intimates at the systematization of the
extralegal realm. One might observe that all an extralegal author has to do
is to follow the conventions of a subgenre (e.g., yaoi) and simply plug in
a selected cultural artifact. In this sense, the relationship between extra-
legal texts and canonical texts fulfills the formalist vision of literary influ-
ence as an interrelationship between autonomous artistic systems.48
However, it would be an oversimplification to discount the agency of the
individual artist in adapting a work, for
an artistic hybrid demands enormous effort: it is stylized through and through,

thoroughly premeditated, achieved, distanced. This is what distinguishes it
from the frivolous, mindless, and unsystematic mixing of languagesoften
bordering on simple illiteracycharacteristic of mediocre prose writers.49
A subgenres conventions, then, provide a skeletal structure onto which

an artistic layer can be draped. Few would agree that a hypothetical poet
adapting a work into a ballad, villanelle, or other verse form simply per-
forms mechanistic work. Furthermore, many extralegal texts defy easy
categorization. What is important is that each generic frame creates a dif-
ferentiated space for experimentation and alteration from the norm. Taken
together, the mass of extralegal texts engages in an intertextual relation-
ship with the original, driving both the periphery and center to adapt.
Ralph Cohen notes that the use of a convention or an allusion or a way
of proceeding must be understood... as interacting with other works.
Whether it is a variant or an innovation of a convention, cluster of ideas,
or genre, the nature of this interaction forms the basis for divisions in liter-
ary study.50 By following the conventions of a subgenre, extralegal artists
both engage with the primary source and align themselves with a larger
movement. This in turn impels successive extralegal writers to deviate
further, however minutely, from the primary source as well as their pre-
decessors; innovation and divergence come incrementally along a chain
of forking subgenres. The extralegal system both engages and differenti
atesand generic divisions discern where culturally significant innova-
tions occur. The largest impact comes from the sheer mass of texts, including
established subgenres and those that defy typology, circling and recon-
textualizing the center.
This study is a snapshot in time. There is no guarantee that do jinshi will

continue to grow and thrive, with fan fiction trailing slightly behind. Though
fan fiction and do
jinshi are both disruptive, I observe that they play slightly
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different roles in their respective literary systems, predicated on their legal
positions. Indeed, the preceding overviews of fan fiction and do jinshi illus-
trate arguments from both fan and Japanese studies that seem remarkably
interchangeable for the most part. However, despite their largely superfi-
cial similarities, I have difficulty in accepting the premise that fan fiction
and do jinshi are simply cross-cultural counterparts. There are minor but
important divergences placing them in different spaces within the textual
dynamic.
Dojinshi boasts a larger audience, reaches deeper into Japanese cul-
ture, and sometimes rivals mainstream manga in quality and profession-
alism mainly due to a looser interpretation of copyright law. Legal scholars
offer several possible reasons for the relatively lax enforcement of copy-
right law, saying that there may be an inherent cultural aversion to liti
gation in Japanese society that do jinshi artists exploit (Japanese social
interaction is engineered to be famously indirect); that Japanese artists
are quicker to recognize the shared practice of borrowing and acknowl-
edge the hypocrisy of prosecuting others for the same actions; that there
are fewer economic rewards in litigation due to the structure of civil law
and therefore less incentive; and finally, and probably most compelling,
that there are simply not enough lawyers in Japan to address such con-
cerns.51 The fact that do jinshi was left to grow relatively unmolested until
the 1999 Pokmon Incident should hint at the gains amateurs made in
the interim. Though both fan fiction and do jinshi shared similarly hum-
ble beginnings in cheaply constructed fanzines, do jinshi began to rapidly
develop into large, organized communities that have yet to be matched
in English-language fandom. A steady stream of face-to-face encounters
with readers and other do jinshi artists provided direct feedback and led
to a concomitant increase in competition as well as a stronger incentive
to innovate. Conversely, fan fiction largely remained in underground net-
works and online darknets with little exposure and, until they migrated
online, suffered slower communication between writers and readers. In
contrast, do jinshi enjoys multiple conventions held every year in major
cities of Japan; with hundreds of thousands participating, the sheer scale
alone draws major media outlets. Fan fiction may not lag behind for much
longer; industry acceptance and recognition of the value of fan fiction has
progressed, and small conventions have been held. But the strict, narrow
legal response to American fan fiction has certainly curtailed its develop-
ment and maturity vis--vis do jinshi.
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Japanese copyright law lacks an explicit fair use clause, nor have the
courts provided common law protection of gray area works.52 When do jin-
shi came under attack for the first time, do jinshi artists and their support-
ers, such as artist Jun Ishikawa, turned toward the American system to
claim safe harbor: When I decide to sketch a parody, the way I go about
doing it is to borrow something and revise it with my own perspective or
different values. If I leave the parodied object as-is, then thats probably
plagiarism, and although there are definitely cases of plagiarism, I try to
avoid it as much as possible.53 Ishikawa stresses the intent behind borrow-
ing, arguing that as long as something is consciously refashioned in an
innovative manner, parody should be distinguished from pure theft. Tak-
ing a different tactic, manga critic Fusanosuke Natsume argues that per-
turbed publishers and mainstream manga artists should put up with the
ninety-nine percent of [do jinshi] manga that may be worthless because
of that ninety-nine percent, one percent is great.54 In other words, a gen-
erous attitude and looser interpretation of copyright law benefits popular
culture at large with the possibility of a small but significant contribution.
Regardless of do jinshi proponents arguments, their attempt to equate
fan fiction and do jinshi with parodies falls short. I argued in the previous
chapter that the law serves as a sanitizing mechanism within the literary
system; here is a paradigmatic example of the tension between extralegal
texts, protected literature, infrastructure, and legal system. Whereas Alice
Randall and Pia Pera argued for protection under fair use with moderate
success, fan fiction and do jinshi cannot claim the same luxury. Parody
connotes a mode of pillory against a chosen work or author, but even a
perfunctory glance at most fan fiction and do jinshi will show that direct
criticism is not the main objective. Parody was formed to protect the read-
ing publics right to criticize without being encumbered with burdensome
clearances; it was a means of balancing the rights to the freedom of
speech with authors rights. But what does an author do when he or she
does not necessarily agree with an emulative mode of adulation? Does
parody still apply to awkward acclamation? Some have argued that these
works are transformative, thus fulfilling another requirement of parody,
but even that fails to meet the expectations of fan fiction. For being trans-
formative indicates a desire of textual violence, a conscious design upon
the original to challenge its position of privilegethe defining distinction
between extralegal texts and parodic works. Instead, in fan-based com-
munities, there is a reverence and respect for the original works or artist
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that lean toward the sacrosanct in spirit, if not in execution. Extralegal
texts may produce a parallel yet subordinate universe (a so-called fanon),
but the center will always remain with the original works; there is little
desire to purposefully claim canonicity. In the current legal regime, they
are unequivocally transgressive, something amateur writers explicitly
acknowledge. In an effort to avoid attention, fan fiction writers eschew
profits, and do jinshi proponents have sought, unconvincingly, to carve
out space for their products under a nonexistent fair use clause in Japa-
nese copyright law. Existing outside of the current legal systems of the
United States and Japan, extralegal texts simply do not fit under any of
the qualifications enumerated in the fair use clause.
The subject of economic impact is less clear. In general, American fan
fiction circles have a predilection for spurning personal profit. Japanese
dojinshi circles, however, are not quite as quick to avoid economic rewards.
Yet it would be sophistic to cite financial profits as do jinshi authors cen-
tral motive; more often than not, they lose money on their projects. Even
those who do end up posting profits may have spent a number of years
operating at a loss at conventions until they have built up a large enough
readership to edge toward profitability; with limited resources, their efforts
may result only in modest gains. However, as shown before, the do jinshi
world resembles industry, complete with secondary markets and services.
The famous do jinshi group CLAMP, a group of female artists and writers,
has even streamlined its production system with an organized division of
labor.55 Furthermore, the argument that extralegal texts damage sales of
the original texts fails to stand up to scrutiny. When one considers the fact
that the distribution of extralegal texts is limited in scope and that most
readers are already deeply invested in the original text, it makes little sense
to argue that extralegal texts dissuade readers from purchasing or viewing
the source material; readers would not be interested in fan fiction or do jin-
shi unless the source material had already seeped into their conscious-
ness. Lessig and Mehra even suggest that the secondary market may act
as a form of free advertising, leading to increased sales for the source
author. My point is that within an economic framework, extralegal texts
occupy a gray market without clear answers but an abundance of contra-
dictory assumptions. The very practice seems to violate two tenets of cre-
ative incentivesthat protection of intellectual property and financial
compensation are necessary creative incentives. However, even if major
publishers and authors presume financial damages, there has not been a
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concerted effort to eradicate the practice, even with the support of the
law. Until now, factors external to legal code (poor cost efficiency, negative
publicity, etc.) have precluded interested bodies from prosecuting offend-
ers out of existence. But as I have shown, it is a tenuous, fragile state, need-
ing only the slightest change to tip the balance one way or another.
For Early Adopters, by Early Adapters
Both economic and legal modes of analysis fail to satisfactorily explain the
function of extralegal texts; according to prevailing wisdom, extralegal
texts should not exist. How does one begin to explain the significance of a
mode of creativity that should not be? If extralegal texts run, quite brazenly,
counter to the two most institutionalized measures of derivative creative
works, yet continue to thrive, which model can explain their existence?
One solution would be to acknowledge that looking at extralegal texts
within a conventional legal and economic framework neglects the funda-
mental difference between protected and unprotected texts. Disruptive
texts perform the role of challenging the protected signal. The fact that
that challenge comes in the form of adulation rather than criticism is of no
consequence to the communications model, only that it is slightly changed;
extralegal texts distort, transform, and confuse the signal enough so that
canonical interests must respond in some manner to reaffirm its grasp of
the center. Furthermore, a literary or cultural lens provides a framework
for explaining their purpose that economic and legal models cannot. Extra-
legal texts function much in the same way that parodies do, but their
respective mechanics differ. Neither wholly transformative nor strict
parodies, extralegal texts insist on existing within a legal and economic
reality that has no place for themthe value is in elucidating difference.
Framing extralegal activity as a mode of disruptive textuality illumi-
nates its cultural valuean idea that runs counter to most conventional
attitudes toward derivative material. The extralegal operation of disrup-
tion hinges on its creation of infrastructures, both generic and distribu-
tive. Extralegal textuality, as it currently exists, contributes through two
pathways. First, the call-and-response of enthusiasts about various gra-
dients of the mainstream or marginal creates and builds generic conven-
tions. Culturally, the most significant contribution is the advent of different
generic conventions (yaoi, etc.); the call-and-response pushes the canon
to develop. Second, to publish, digest, and discuss the material created,
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a community needs the support of a network infrastructure. The more
dependable the distribution network, the stronger the community and
the better the work produced. As a subcultural textual universe expands,
the community forks and splinters, driving innovation and the creation
of even more generic conventions. With all that in place, the conditions
are ripe for innovative material, individual or generic, to emerge.
One particular difference between extralegal texts and strict parodies
is that they have the potential to create independent auxiliary industries.
Given enough space to engage in commerce, even in limited bursts, extra-
legal texts produce niche markets. One can only imagine the rapidity with
which the fan fiction community would erupt in an open market. Black
market industries function within this same tension. While it would be
difficult to label extralegal texts as strictly parasitic (like the pirated DVDs
sold on so many streets in New York and Beijing) due to the creative work
invested, there may be similarities in infrastructural changes leading to
emerging cultural forms. Take, for example, Brian Larkins illustration of
how the Nigerian film industry originated in mass piracy of both Western
and Eastern cultural products, only to find itself establishing an intricate
and complex distribution infrastructure that eventually resulted in a domes-
tic culture industry. Owing to the confluence of several developments in
the late 1970s and early 1980s, Nigeria saw bootleg Hollywood and Indian
films flooding the streets. But something curious occurred: in the 1990s,
a domestic form of production called Hausa videos (films with heavy
Indian influences complete with the ubiquitous Bollywood dance num-
ber) began to grow in popularity. Soon video rental shops came to be
dominated by Hausa videos rather than Western or Indian videos. Larkin
notes that
the creation of successful infrastructures sets in motion other types of flows

that operate in the space capital provides and that travel the routes created
by these new networks of communication. The organization of one system
sets in motion other systems spinning off in different directions.56
Piracy in Nigeria, rather than simply recirculating bootleg media, created

space for public product distribution. In disseminating popular Western
culture, Nigerian pirates formed the basis of what would become the cen-
tral channel for domestic culture to reach a viewing audience. In a similar
sense, extralegal texts build infrastructure for distributing culture, but that
is secondary to the greater goal of building community relations. Though
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extralegal texts do not distribute bootleg copies of popular culture, they
do auger forth the emergence of alternative universes and industries that
may eventually bloom into a competing, mature system of information.
The second contribution unique to extralegal texts is communal work.
The readership is based on a certain body of work, text, or author figure,
but the resulting productivity is built from communal workI include
not only the material produced by amateur writers but also their reader-
ship, discourse, and criticism. Henry Jenkins uses the term participatory
culture to describe a mode of engagement unlike the passive spectator of
yesteryear. Instead, he argues that consumers now expect a degree of active
participation in the ongoing construction and consumption of media arti-
facts, much to the distress of producers.57 Significant in their participa-
tory exercises is a supportive and self-selecting community of like-minded
members. Over time, a weak community will result in poorer-quality and
less innovative work as well as an enervated sense of group identity. A
stronger community, with more immediate feedback, frequent interaction,
and larger collective knowledge, will result in more innovative and inter-
esting texts with a stronger sense of direction. This, in turn, will inevitably
result in the forking of groups as a community grows in size and smaller
subgroups come into ideological or creative conflict with others, which
may seem like fragmentation or destabilization but, in the larger scope of
extralegal textuality, only buttresses the idea that disruptive agents expand
the universe of texts.
Distribution networks enable and accelerate both attributes of sec-
ondary markets and communal work. As publishing technologies develop,
feedback becomes more immediate, and distribution becomes more rapid,
the network has a two-pronged effect. The first is a magnified strengthen-
ing of the community discussed in the preceding paragraph. The second
is that more attention is paid to the emergence of these works. This is also
the point at which canonical interests begin to grow increasingly con-
cerned and where the law plays an increasingly stronger role. It is of no
small importance that the first copyright infringement case against a do jin-
shi artist occurred in 1999, with the Pokmon Incident, when the global
exportation of Japanese cultural products grew while the Internet as a
worldwide distribution network simultaneously engendered panic among
content producers and owners. As Pokmon began to enjoy increased pop-
ularity abroad, Nintendo realized that it had to rein in rogue depictions
of the characters, lest its family-friendly brand be tainted. A pornographic
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Pokmon do jinshi, scanned and distributed through the Internet to a
reader unfamiliar with do jinshi, would have been a public relations disas-
ter for the parent company. Mehra notes that because Japanese corporate
interests have different values than individual copyright holders, the moral
qualms and barriers that precluded individual creators from pursuing
litigation did not apply, and because Pokmon was a valuable commodity
that needed protection in the global market, it was in the best interests of
its corporate owner, Nintendo, to limit the scope of do jinshi. When extra-
legal textual communities remain small, unorganized, and finite, invested
interests have little incentive to prosecute them, but digital networks
strengthen communities and proliferate material exponentially. In a
sense, technologys abetment of extralegal texts growth may not be in its
best interests. Furthermore, recent reforms to the legal graduate system
may harbinger a grim future for do jinshi, as the number of lawyers in
Japan is projected to soon increase.
Fan fiction and do jinshi contribute to the progression and advancement
of the canon precisely because they exist outside the normal distribution
and publishing channels. More than conventional parodies, which criticize
or recontextualize a work in a reactionary manner, fan fiction and do jin-
shi create a cacophony of voices running in wildly disparate directions.
These are areas that publishing houses are generally disinclined to venture
into not because they are ideologically opposed but because doing so
would not make any financial sense. Note that manga creators began to feel
stifled creatively as soon as the industry became more organized to increase
efficiency and cater to popular tastes. Likewise, major publishers, television
broadcasters, and filmmakers must consider federal regulations, investor
demands, and market vicissitudes when creating their respective cultural
products. Unencumbered by such factors, extralegal texts fill a void unat-
tended by protected texts in catering toward micro-niches. Furthermore,
by illuminating growing subcultural trends, they arguably push the
envelope more than the works of the formal manga industry and may
produce examples of innovation that create new opportunities for the
entire industry.58 Indeed, mainstream manga publishers have been known
to coopt popular do jinshi and integrate them into their lineups:
manga publishing companies have brought the styles and ideas of hot sub-
cultures into their own product lines. Some of the new genres fostered by
the do
jinshi marketsgenres that are often quite risquehave been adopted
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by mainstream commercial manga publishers.... This co-opting of innova-
jinshi artists has continued up to the present.59
tions introduced by do
Readerships are able to obtain more from their favorite works, or revise a
perceived deficiency, and in addition integrate themselves into a com-
munity readership. Furthermore, a strong communal wealth of shared
knowledge fosters creativity that would otherwise be restricted to those
with access to the resources necessary for clearing rights and permissions.
There are three possible outcomes. The first is to hope that nothing
destabilizes the fragile balance and that extralegal texts continue to be
produced. That would require a legal loophole or gray area allowing dis-
ruptive texts to proliferate at a reasonable pacenot enough to over-
whelm protected literature but enough to create latitude for innovation
and creativity beyond normal channels. This is the way American fan fic-
tion has come to be. The downside is that fan fiction lags behind do jinshi
in terms of large-scale participation, productivity, and qualitymeaning
that the literary systems rate of development will be slower. Sympathetic
legal policy is not enough, howeverinfrastructure is also needed to defy
market logic. With favorable technology and enough innumerable par-
ticipants lowering the cost-efficiency of infringement lawsuits, extralegal
texts could hope to be left alone. The danger in that, of course, is the pos-
sibility of those barriers one day being breached with a change in the law.
One could imagine, for example, a push for copyright infringement to
become a mandatory federal violation rather than a civil matter, in which
case tax dollars would fund the prosecution of extralegal texts.60 This is
the state of do jinshi as it stands today in Japan, but as hinted before,
things may change quickly.
The second outcome would be that the balance becomes upset, result-
ing in the demise or severe diminishment of extralegal texts. With a fresh
influx of lawyers, do jinshi may eventually find itself outlawed, the mas-
sive conventions banned. Legal precedent in America might spell doom
for fan fiction, or a federal law may be passed prohibiting its production,
forcing extralegal texts deeper underground, perhaps in encrypted elec-
tronic networks.61 The situation is more tenuous than it appears, but extra-
legal texts are more resilient than they are given credit for.
The third possibility, of which there has been some emerging evidence,
is that the extant mode of publication adapts or coopts fan fiction into its
economic model. There have been a few cases of popular American and
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British fan fiction authors finding mainstream success with their work
E.L. Jamess Fifty Shades of Grey is likely the most visible example.62 Fur-
thermore, with an increase in the number of amateur authors finding suc
cess with self-publication on platforms such as Amazon.com, a generational
shift may occur, with authors finding themselves having more generous
attitudes toward extralegal takes on their workHugh Howley, a self-
published author who has found success with his science fiction Wool
series, actively promotes and encourages fan fiction authors, who, in turn,
sell their work on Amazon for a nominal fee. There are some troubling
implications, of course; extralegal communities may eventually be seen
as farm leagues, with publishers signing writers who have been vetted by
the extralegal community for popular consumption. Furthermore, extra-
legal writers may begin writing for a wider audience if they are cognizant
of the possibility of mainstream success. I have argued that generic shifts
that diverge from, challenge, or subvert conventions are what is most valu-
able about subcultural writing communitiessomething that could be
diluted by the overlapping of canonical and extralegal spheres. In short,
market logic may attenuate extralegalitys edge. However, the outcome is
far from predetermined.
I began this chapter discussing social dregs, marginal figures, easily dis-
missed and mocked for their perceived social ineptitude and obsessive
fixations on cultural artifacts. Likewise, the collective discourse produced
at the margins tends to remain there, but that discourses influence on
canonicity serves a critical purposeit provides a forum for alternate per-
spectives, revisions to the postmodern palimpsest that is culture. In that
sense, they are far from disposable figuresextralegal textuality challenges
literary conventions. There will always be a necessary intertextual, legal,
or moral tension between the center and the periphery; otherwise, there
would be no reason for either side to adapt. Regardless of whether the
fragile balance in Japan or the begrudging resignation underneath the
litigious threats by established American authors ever comes undone,
extralegal texts will somehow find a way to survive and proliferate, even
if they have to resort to the underground, as they did before the advent of
electronic distributionthe concern is that canonical literature and cul-
ture may suffer for their lack of presence.
Discounting the role of networkselectronic networks in particular
in raising the profile and proliferation of amateur disruptive fiction would
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be irresponsible. It seems like a natural alliance: underground fiction dis-
rupting canonical hierarchies funneled through nonhierarchical, disrup-
tive networks. That does not mean that networks are solely responsible
for the influx of extralegal activitydo jinshi had thrived in Japan long
before electronic Bulletin Board Systems went online. But as I have noted,
a more relaxed legal climate may have been a factor in its prevalence in
dojinshi circles. Facing a more litigious climate, American fan fiction
made more prolific strides when the Internet facilitated its exchange,
communication, and community building. Thus it is now that aspect of
disruptionthe networkto which I turn in the next chapter.
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3
T H E O P E N - S O U R C E M O D E L
Versioning Literature and Culture
Copying all or parts of a program is as natural to a programmer as breath-

ing, and as productive. It ought to be as free.
Richard Stallman, The GNU Manifesto
eac h o f th e p re ce d i n g ch ap t e r s implicitly operates on network

logic. Extralegal texts challenge the continuing literary conversation in
the print distribution network; fan fiction and do jinshi, before the age of
the Internet, distributed their wares through small, local mailing networks
and/or clubs. But each of these means of distribution suffers bottlenecks
in the form of legal quagmires, small scale, and torpidity, limiting cultural
production. Alice Randall and Pia Pera needed to clear rights through the
legal system before their works could be published in the literary network;
fan fiction and do jinshi were limited to mailing lists and have to con-
sciously avoid attracting the attention of content owners. In both cases,
the dialogic impulse and mechanismthe call-and-response of texts and
their readershiphad to overcome a sundry of structural, moral, legal,
and physical obstructions contingent on the medium of choice: print. Up
to this point, I have concentrated on addressing the questions of what
and why. In this chapter, looking closely at the network and electronic
medium, I turn to the question of how.
In medieval England, oral tales propagated though bards, who learned
songs by listening to other singers perform. Having digested the songs,
the bards spent time meditating upon them and then performed the tales
themselves, beginning the cycle anew.1 However, the mechanics of voice,
memory, and ear were far from faithful; the tales changed, whether pur-
posefully or not, because of the fallibility of the medium. Singers improvised
9 6
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because they misremembered plot points, adjusted lines according to the
vagaries of audience reception, and colored performances with their indi-
vidual styles.2 Other bards repeated the pattern, and tales, without encum-
brances beyond the material and multiplied many times over, inevitably
evolved. Oral cultures, because of the particulars of the medium, infra-
structure, and cultural norms, operated dialogically during the transmis-
sion process.3
In the preceding scenario, three elements work together in a tales pro-
liferation: the network of singers transmitting their tales through voice
and ear, the terminal (the bard and his imperfect memory), and the feed-
back of the audience. The oral network, however limited, was necessary
in the dissemination of culture; the tale could only evolve through a hand-
ful of singers. Yet the networks dynamic spurs cultural developmentits
horizontal structure results in constant evolution because each subsequent
iteration dislodges the previous performance. There was no legal obstruc-
tion, because a formalized concept of intellectual property and a codified
recognition of authorship did not exist. Moreover, the terminal (the bard)
had no physical obstructions to copying, because the work traveled through
voice and memorywhether the work was heard and repeated by one,
two, or three singers, it did not degrade in quality like a third generation
videotape recording.4 In many ways, the ephemeral oral network resem-
bles the modern digital network in structure, albeit on a smaller scale.5
The story of print is different. Despite the open accessibility of the book
terminal, the print network is strongly vertical rather than horizontal. With
the commercialization of print, the rise of the author and intellectual
property regimes, prints early horizontality gave way to more vertical
relations of power and control. For example, the readers feedback in the
coevolution of the text was displaced by professional editors and com-
mercial interests. The need for a financial return on the initial investment
necessitated a degree of authority and finality to a printed book, which,
until the late nineteenth century, was financially inaccessible to many.
Thus it was in the best interest of the book to coalesce and protect its
authority rather than being a vehicle for the free exchange of information.
As a result, the print network now has a series of hierarchical gatekeeping
barriers designed to strengthen its command and maximize profitability.6
Consequently, works no longer change at the rapid pace they once did;
instead, without financial incentive, they evolve glaciallyor not at all.
Both conceits describe forms of revision based on a confluence of ele-
ments, incentives, and supporting infrastructure. In the oral scenario, the
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environment facilitates constant, iterative change through the particular
mechanics of memory, voice, and ad hoc, people-based networks. The
print environment, however, operates according to a different economy
with a less ephemeral medium, making intellectual property protection
both possibility and priorityand consequently promoting stasis in the
process. Yet the advent of digital distribution networks and the concomi-
tant shift in the logic of cultural production raise the question of whether
there is room between the two extremes for an alternate framework that
would encourage, rather than discourage, change.
This chapter frames our understanding of cultural distribution over the

print and electronic media through architectural elementsincluding the
networkfacilitating or discouraging dialogic activity, which ultimately
affects the rate of literary and cultural change. To do so, I unravel and
examine the connective threads common to both literary and software
production practices. This infrastructurealong with cultural practices
which accelerates or decelerates the rate of textual development, depends
on several components: first, the flatness of a networka tightly inte-
grated, vertical network results in slower rates of cultural innovation than
a horizontal network.7 Second, the terminal, or end point, may also affect
the rate of cultural acceleration or deceleration by its construction and
embedded affordances. A terminal, however, does not exist in a vacuum;
surrounding social and educational infrastructure can determine efficacy.8
Indeed, it is not uncommon for the two elementsthe network and the
terminalto be misaligned, with interesting consequences. Third, the
mechanism driving textual and cultural development is direct, open feed-
back in various forms. While digital distribution networks such as the Inter-
net may circumvent many physical and legal barriers, creating a horizontal,
rapid exchange of information and accelerating dialogic output at an
exponential rate, a networks scale and speed by themselves are insuffi-
cient; the mechanism of constant feedbackbe they comments, e-mailed
missives, or message board postsis also necessary for the evolution of
cultural discourse.9 The sum of these elements is the pace of cultural
developmentregardless of however strict or tyrannical a network and/
or terminal may be, or however severely feedback is repressed, some devel-
opment will inevitably occur, but the rate may be far slower than what is
optimal for the reading public.
The construction of an environment conducive to textual alterations
and emendations at the ground level, be it code or prose, relies on the
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aforementioned architectural elements: network, terminal, and feedback.
Within the context of print, rapid textual turnover leads to developments
in the literary, as formalist theory contends that the tension between
canonical and noncanonical texts spurs literary evolution. Lastly, I refer
to culture in two senses of the word: the attitude toward modes of pro-
duction and the culmination of these elements working to bend the long
arc of ideas.
There is one text-based industry in which the aforementioned elements
work together to maximize access and collaboration: open-source soft-
ware programming. Similar to the extralegal writing community, this is a
theater in which rapid exchange of information drives the rate of change,
driven by participants invested in a particular program or software plat-
form, enabled by supportive infrastructure. I articulate a framework be-
tween the dichotomies of strict verticality and horizontality by porting
the concept of versioning from software programming to literary produc-
tion, based on the idea that constant, iterative tinkering leads to quicker
developments in cultural trends, ideas, and innovation. As I later show in
my discussion of open-source software, several infrastructural elements
work together to maximize access, collaboration, and rapid textual devel-
opment. In lieu of fixity, open-source software operates on a logic of inces-
sant revisions, resulting in a multiplicity of editions. To counter a regime
of permanence and to posit a more generous mode of creative construc-
tion that accounts for infrastructural developments, I conceptualize a
literary versioning.
What is at stake? Why is the idea of versioning necessary at all? First, I
argue that a cultural change is already in process, wrought by infrastruc-
tural developments in computing and distribution. The idea of fixity and
stasis as it is formed in prints verticality is quickly becoming the artificial
modethat is, it takes more resources and effort to force contemporary
cultural production to adhere to material limitations and the relative per-
manence of print than its more natural inclination in born digital media
to develop iteratively. Second, versioning may provide a middle solution
reconciling several factions, such as stakeholders who are perceived to
lose (established authors, publishers, and copyright owners, for their
level of control over subsequent derivations of their work may weaken, as
may their economic returns) with those who win (the reading public and
burgeoning or amateur writers and creators). Versioning offers a reori-
ented framework that may weaken such binaries to make possible the open
sourcing of culture.
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The Horizontal Network
Let us begin with the first component needed for versioning to be pos-
sible: a horizontal network. The network affects information and cultural
artifacts in terms of scale and speed, and the formalist theory of generic
development explains how culture evolves. It is the iterative process of
conflicting mainstream and subcultural voices, enabled by a mixture of
circumstance and choicethere is nothing about the network itself that
inevitably leads to dialogic activitythat I explore.
Postmodern antecedents to network cultural theory, along with more
recent forays by new media scholars who extend and expand on the elec-
tronic network, inform my argument. The network-as-signifier of emer-
gent cultural forms is perhaps belated, for postmodern theorists have
danced around the idea for some time. In his reading of the hyperspatial
Bonaventure Hotel, Fredric Jameson likens it to a symbol and analogon
of that even sharper dilemma which is the incapacity of our minds, at
least at present, to map the great global multinational and decentered com-
municational network in which we find ourselves caught as individual
subjects.10 Postmodernism, as a force field or environment, decenters to
reflect the unwieldy nature of its unmappable space. Drawing on nature,
Gilles Deleuze and Flix Guattaris theorization of metaphorical rhi-
zomesa structure without structure, an antistructureattempts to artic-
ulate postmodernism as a space without hierarchy. There is plasticity to
the rhizome that echoes distributed communications; it is made of het-
erogeneous connections; there is only a multiplicity of lines rather than
locatable points; it is rupture-proof rupture; and its map is its terrain.11
Antonio Negri and Michael Hardt likewise envision a modern condition
bereft of borders; instead, we have a logic of flexibility that reconfigures
ideas of the nation-state and empire.12 Their proffered theories share a
vision of a decentralized, complex, weblike structure.
These theories have given rise to new media scholars who have taken
their abstract networks and replaced them with electronic instantiations.
For example, in his critique of Negri and Hardts Empire, Mark Poster faults
the authors for failing to make explicit connections between their theo-
retical sketches and digital networks.13 Rita Raley argues that the electronic
network is not only neither organic nor whole, but arguably not even a
system at all. Rather, it is a loose assemblage of relations characterized by
another set of terms: flexibility, functionality, mobility, programmability,
and automation.14 Writing through a sociological lens, Manuel Castells,
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in Rise of the Network Society, discusses how identity in the information
age has been destabilized by the global network, which has transferred
our points of reference from real space to more diffused anchors online.
This new social structure, Castellss reading contends, is strongly associ-
ated with a new mode of development: informationalism, a consequence
of capitalisms restructuring of its production process in the late twenti-
eth century. Additionally, the network structure unsettles traditional and
centralized concepts of community and self based on location, and the
same logic applies to texts and textuality.15
Still, it would be a mistake to blindly celebrate the horizontal network
as innately democratic. Media theorists Eugene Thacker and Alexander
Galloway warn of what they perceive as new media scholars predilection
for overlooking the neutrality of technological platforms to mistakenly
ascribe democracy to networks. Indeed, they write, the term network
often conjures up the themes of anarchy, rhizomatics, distribution, and anti-

authority to explain interconnected systems of all kinds. Our task here is not
to succumb to the fantasy that any of these descriptors is a synonym for the
apolitical or the disorganized, but in fact to suggest the opposite, that rhi-
zomatics and distribution signal a new management style, a new physics of
organization that is as real as pyramidal hierarchy, corporate bureaucracy,
representative democracy, sovereign fiat, or any other principle of social and
political control.16
In other words, Thacker and Galloway counter much of the celebratory

rhetoric surrounding decentralized networks as effective antigovernmen-
tal tools; instead, they caution that the same rhizomatic structure will be
coopted by corporate and governmental bodies to counter the rise of net-
works. Their interest lies, in fact, with what comes after network logic
the next rupture.17 Indeed, in an another study, Galloway notes that the
formal rules of exchangeprotocolrun atop network structure and could
be construed as descendants of a Foucauldian disciplinary force, a mani-
festation of what Deleuze and Guattari call a society of control.
Despite the conflicting approaches, a commonality emerges in the
aforementioned scholarshipthe notion of the network not as technical
solution but as reflection of the modern worlds systemic condition. Jame-
son, Deleuze and Guattari, and Hardt and Negri write from late capitalis-
tic vantage points in which human migration patterns and supporting
infrastructures such as the nation-state need a new means of articula-
tionthe network maps the unmappable. Raley critiques cultural forms
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of advertising as a reflection of electronic capital, which is itself a means
of financial imperialism. Thacker and Galloway survey the theoretical land-
scape to prognosticate an impending technological or political rupture
that may undermine the network itself. These critics take it as a truism
that the network prevails as the dominant cultural formhowever con-
ditionalto best articulate the global flow of capital, data, and bodies.
The root of horizontality lies in the cultural norms of networks, which

might explain how textual horizontality is able to function despite proto-
cological controls or oppressive structure. Two popular narratives explain
its origins and present character. The first delves into its mechanical and
protocological beginnings. At the code level, the Internet runs on a suite
of protocols called TCP/IP (Transmission Control Protocol/Internet Pro-
tocol). The TCP/IP stack has several elements, each targeting a separate
layer of data. One layer is responsible for data linking, another is respon-
sible for the network, another for transport, and the last, for applications.18
As I have alluded to before, these protocols came with important political
decisions. TCP/IP was designed to be as lightweight, simple, and efficient
as possible. The software engineers who developed early protocols had
no idea how the platform would develop, so they consciously chose not
to institute any discriminating controls, deciding instead to leave the
source code open so that others could develop on top of it, as did many
of the application protocols. This meant that anybody could write pro-
grams utilizing HTTP, FTP, or SMTP; the end result of an open protocol
suite was rapid innovationthere were many web browsers, e-mail cli-
ents, and FTP clients.19 Easy access to protocol source code meant that
programmers did not have to take the additionalsome would say illicit
step of reverse engineering. Consequently, the Internet grew at a startling
rate.20
The second narrative focuses on the cultural context from which the
Internet was born.21 As Manuel Castells and other scholars have argued,
the openness of the Internet was consciously inventedtechnical forms
do not emerge from a vacuum, for technological systems are socially pro-
duced. Social production is culturally informed. The Internet, Castells
continues, is no exception. The culture of the producers of the Internet
shaped the medium.22 A unique confluence of actors, including govern-
ment agents, military and university research centers, and cultural norms
of the software programming community, installed certain principles in
the Internet that still persist. He writes:
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The Internet developed in a secure environment, provided by public resources
and mission-oriented research, but an environment that did not stifle free-
dom of thinking and innovation. Business could not afford to take the long
detour that would be needed to spur profitable applications from such an
audacious scheme. On the other hand, when the military puts security above
any other consideration, as happened in the Soviet Union, and could have
happened in the US, creativity cannot survive. And when government, or
public service corporations, follows their basic, bureaucratic instincts, as in
the case of the British Post Office, adaptation takes precedence over innova-
tion. It was in the twilight zone of the resource-rich, relatively free spaces
created by ARPA, the universities, innovative think-tanks, and major research
centers that the seeds of the Internet were sown.23
Castellss account illustrates the conditions necessary for the Internet to

have come of age. Security concerns regarding nuclear war led to research
into distributed communications; Cold War policies led to an increase in
research and development making their way into the private sector; and
most importantly, the cultural norms of programmers led to open proto-
cols, for a strongly libertarian culture surrounded computer programming
circles: the hacker culture, in my view, refers to the set of values and
beliefs that emerged from the networks of computer programmers inter-
acting on-line around their collaboration in self-defined projects of cre-
ative programming.24
In short, the open architecture of the Internet allows for an effective
call-and-response on a massive scale, multiplied many times over by the
near-instantaneous transmission of data with a global reach. This open-
ness was by no means inevitable or natural in any sense; it was manufac-
tured by a mixture of cultural, technical, and institutional factors.
Some critics might argue that print texts already travel along cognitive or
physical networksthe works of Roland Barthes and Michel Foucault
come to mindand that new media theorists are simply concretizing
what we already know, as if there is a simple one-to-one correlation
between print and electronic networks.25 In truth, networks are far more
complicated than a simple structure of raw linksone has to consider
their nature and character, which new media scholars largely neglect to
address. While the basic network consists of two elements, vertices and
edges, a vertex (or node) and edges (or connections) can have several
characteristics determining the rate of flow. The Internet network, in its
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most familiar and visible form, is a series of web pages connected by
hyperlinksbut other examples proliferate: domiciles connected by streets;
humans connected by relationships; and organs connected by blood ves-
sels and neural webs.26 But there are complexities within networks that
belie their simplicity; vertices and edges may have different properties that
complicate how a network functions. For instance, an edge may be uni-
directional or bidirectional, and a vertex could be restricted to certain
categories (gender, animals, geography, etc.).
Furthermore, the qualities of edges and vertices may determine the rate
of exchange. In the classic example of an information network, a study of
academic citations shows that power laws determine the wealth of edges
a vertex may have. Network theorist Derek de Solla Price believes that the
rich get richer model, or cumulative advantage, may explain how cer-
tain oft-cited papers generally increase over time; the rate at which a paper
receives new citations should be proportional to the number that it already
has.27 Empirical studies also hint at the dangers of protective regimes. For
example, in a study of network resilience, when networks had vertices
removed at random, networks were generally resilient. However, if vertices
with a high number of edges are targeted, the network shows weaker levels
of resilience. Targeting or suddenly restricting a cluster of edges at the most
popular vertices could negatively affect the overall health of a network.
Two prominent elements of the print network, I argue, have a similarly
negative effect. First, content owners of intellectual property are most
interested in a unidirectional, broadcast or read-only edge originat-
ing from the vertex directed outward. By eliminating certain kinds of edges,
there may be a point of diminishing returns that could harm the health
of the overall network. Imagine if, instead of open hyperlinking, websites
set restrictions depending on payment.28 Fewer bidirectional links would
reduce overall traffic and associative paths, resulting in a web that cer-
tainly would not have grown as quickly as it did.29 It was largely due in
part to the Webs flatness that the number of websites proliferated as
quickly as they did. Second, a culture of author worship tends to limit the
kinds of edges that may be formed. Texts that respond by directly lifting
components (parodies, deformations, excessively lengthy citations) are
discouraged, devalued, or disallowed altogether. These are by no means
inherent in the print network but have evolved over time owing to a con-
fluence of cultural, policy, and media-specific elements.
All this is to say that the literary network is far from horizontal. My
point is that the nature of the network is itself an important factor in
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determining the rate of growth and development; a restrictive web grows
at a slower pace than a nonrestrictive weba robust system of networked
texts must be conducive to dialogic activity. If we liken literature and cul-
ture to a network of texts, and the health of the network depends on the
character and makeup of its edges, then we must pay careful attention to
how the flow of data across its edges proceeds. That, in turn, determines
how knowledge develops and culture evolves.
Vertex and edge characteristics can determine how quickly a network
grows and how resilient it may be to attack, but dialogism depends on
network architecture allowing free expansion of vertices and bidirectional
edgesBakhtins description of dialogism was incomplete in assuming
that condition a priori. What I have tried to show is that the networks
malleability and plasticity can negatively affect the rate of dialogic activ-
ity in literary texts. The dialogic network works because of its open quali-
ties, which the structure of the Internet happens to shareby no means
a natural phenomenon.30 Conversely, the network architecture of print
distribution (and, increasingly, digital distribution) has moved toward a
vertically situated dynamic inimical to open exchange.
The Terminal
A horizontal network structure alone does not necessarily guarantee an

efficient environment for textual development. The end point or termi-
nal, where data are received, compiled, and consumed, is influenced by
architecture philosophy. In contemporary terms, the end terminal may
include a human-readable interface, most likely a personal computer,
electronic reader, personal media device, or mobile phonebut these are
not benign objects, bereft of politics. The terminal should function accord-
ing to a similar logic to allow not only free exchange but also direct access
without intermediation.
Perhaps a print-based example might prove more intuitive. The print
terminal, the book, is now ruled by a horizontal rather than vertical
dynamic. Horizontality is not intrinsic to the booktechnology is defined
by its relationship to a multitude of institutions. In days past, the book
terminal granted access to very few because it lacked supportive educa-
tional, cultural, and physical infrastructure. For instance, the book once
required an interfacesomeone who was literatefor its contents to be
disseminated. In medieval England, to read a book entailed that an audi-
ence listen to a clergy member read aloud, largely because the majority
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of people were functionally illiterate.31 The Church had a vested interest
in acting as the interpreter of the holy word, and ecclesiastical texts were
usually written in Latin or Greek, a far cry from the lingua franca.32 Fur-
thermore, before mechanical reproduction, books were scarce and expen-
sive, as was the writing process. Large codices and folios precluded rapid
transport, and without an established distribution system, they were re-
stricted to religious sites, at the lectern or in the library.33
Today the code of print is much more accessible. The book contains a
standardized assembly of texts and paratexts developed over time with
printing and editing practices.34 Moreover, universal education grants
direct access to the writers scribbles without a mediating interface.
Externalizing code also allows readers to critique, learn technique, and,
ultimately, produce texts themselveswhat Eric Havelock characterizes
as an awakening.35 Thanks to a capitalist-based print market and its
portability, the book travels through multiple pathways, and the first sale
doctrine ensures a healthy life in the secondary market to further circula-
tion. Lastly, access to low-cost tools gives readers the ability to produce.36
Readers need only a writing utensil and paper to create an aesthetic
object, and access to mechanical or electronic reproduction affords lim-
ited distribution.
It was only in conjunction with universal literacy and distribution that
textual production began to grow at a rapid pace, developing into an
unwieldy ecology of texts, eventually stabilizing into a more familiar form
regulated by a patchwork of legal, ethical, and economic rules. The extant
condition has become so familiar that its novelty has worn awaythe
previously inscrutable text has become accessible because openness has
become the norm.
Yet that condition is not without qualification, for I have neglected to
mention one of the prevailing presuppositions of terminal horizontality:
the housing structure must be neutral. That is, the housings of textpages,
folios, codices, booksare not discriminatory storage devices.37 In fact,
the housing structure has moved toward open access, engendering sys-
tems and institutions that house, store, and distribute books for nominal
fees to encourage knowledge acquisition.
A similar trajectory can be found in software programming language
and literacy. Open-source software should ideally be held in hardware that
is not inaccessibly expensive, and its compiler of choice should also be
freely available rather than proprietary to achieve a level of parity on the
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part of the programmers and users. In other words, the technology of tex-
tuality should be as neutral as possible to foster and encourage dialogism.
It is a familiar tale to anyone paying attention to computing develop-
ment. The computer terminal could have been considered equally opaque
as early print; its high cost, scarcity, and a paucity of education restricted
access. At the onset of computing, machines often took up entire rooms,
and only those with institutional or governmental credentials could req-
uisition blocks of time.38 Size restricted portability; costs circumscribed
access; and lack of educational support limited operability. But as Moores
law took effect, the costs and size of computer terminals shrank dramati-
cally over time; indeed, components have become cheap enough to raise
the possibility of laptops costing less than $100 for mass media literacy
efforts in developing nations.39 Concomitant with increasing access to the
terminal has been the popularity of open, interoperable hardware com-
ponents, separate from the software that sits atop it. Rather than trusted
systems, which would tie hardware with software to protect copyright
regimes, open systems mostly tend to succeed in the market. Further-
more, programming education has become popular enough to make its
way into university, high school, and elementary school curricula, impart-
ing basic understanding of code to new generations of students. Though
this may be a brutal simplification of the many complexities that make up
the modern terminal, it is not, for the most part, designed to discriminate
against the user or content.
Feedback Mechanics
Open networks and terminals do little without the feedback mechanism.

The digital network enables creators and audiences to work under the
auspices of a vast peer review community. The constant call-and-response
of authors and readers (never static termsparticipants are both author
and reader simultaneously) on the digital plane allow both to tap into a
wealth of knowledge beyond traditional confines. Just as the bards would
either consciously or subconsciously adjust according to the response of
their listeners, digital works may likewise be altered. And just as the tale
they sang may have been picked up by a listener and repeatedand
changedthe digital affords the easy reproduction and alteration of an
electronic artifact. The terminal does likewise; its construction dictates
whether it functions along a similarly open exchange or if it limits access.
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The distribution structure and the end terminals formation facilitate or
limit exchange, resulting in textual or literary evolution.
What makes the Internet an excellent facilitator of textual dialogism and
evolution is its distribution model. Instead of a one-to-many broadcast
system, such as television, radio, or print, the Internet follows a many-to-
many model. The designers of TCP/IP chose to make the grid neutral,
which means that it does not distinguish between types or sources of data.40
This makes the publication process considerably less cumbersome and
allows users to easily transition to producers. The feedback mechanism
unfiltered, raw, and lightly regulatedcreates a cacophonous, sometimes
violent textual tension. That deprivileging of a centralized conduit cre-
ates a structure with a thousand plateaus.41
As I have intimated, the feedback mechanism afforded by openness
and horizontality creates a collaborative atmosphere that burnishes a
work. With the proper software tools, a community of readers will self-
police and develop tacit covenants to keep discussion on a productive
track. This usually works best when the site community has a tangible goal
or strong ideology guiding it; less focused sites can face trouble.42 Over-
bearing or heavy-handed moderators might alienate readers; likewise,
readers who feel that the site has betrayed them might abandon the site
altogether. A collaborative spirit and/or mutual understanding is proba-
bly the most important factor in an online community for the work to
develop at a satisfactory pace. Antagonistic relationships, conversely, do
little to enhance productivity. Withering criticism from readersmean
spirited or otherwise unconstructivemay cause authors to entrench
themselves or take defensive stances. Likewise, condescending dismiss-
als or outright contempt of readers by an author will do little to inspire
constructive feedback or even the viability of the work itself. That is not
to say that the work will necessarily decline in popularity but that the
possibility of its development may stall.
All this is to say that the aforementioned conditions create an environ-
ment influencing the rate of change; the concept of fixity regresses as
fluidity comes to the fore; fluctuations of what is considered canonical
become the norm. Both the network and terminal require horizontality
in philosophy, if not construction, which engenders a culture of open,
productive feedback. I have concentrated on the digital network as the
paradigm par excellence because its scale and speed make for easier obser-
vation of rapid textual development. But as I have stressed time and again,
digital technology itself is not necessary or required for this dynamic to
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exist; I pointed out that academic, blind peer review follows a similar logic,
on a more modest scale. However, another textual industry exists that
may better illustrate how differing philosophies can dictate the divergent
outcomes of the horizontal and vertical: open-source software.
The Open-Source Paradigm
Open-source software programming differs from proprietary program-

ming in its accessibility to the code. Programs owned by corporations, such
as Adobe Photoshop, Microsoft Word, and operating systems such as Mac
OS and Windows, are closed source.43 That is, one cannot peek behind the
curtain and see the logical flow of the programming that tells the program
how to run. Such high-level software code is human-readable, meaning a
person with the proper training in a particular language would be able to
decipher it, as opposed to assembly language, which is only machine-
readable.44 Thus a curious user who is interested in altering or customizing
a program would be able to peer into the source code and make changes;
a proprietary programs closed source precludes that possibility.
The decision to open or close source code is generally a reflection of
differences in programming philosophies. In The Cathedral and the
Bazaar, Eric Raymond argues in favor of open source as a means of maxi-
mizing efficiency, pointing out that by utilizing the wisdom of crowds,
most coding problems can be overcome at a quicker rate than would be
possible under the proprietary model, which relies on a smaller pool of
coders. Furthermore, he implicitly argues against the individual genius
paradigm by pointing out that even Linus Torvalds, the founder of Linux
(itself a reworking of UNIX), did not write the Linux kernel from the ground
up but simply recognized great design and improved on it.45 Undergird-
ing open source is a strong ideological drive; the belief that information
and code should be free (as in freedom) is paramount, the corollary of
which is that all programming should be open so that software can develop
unencumbered. Thus organizations such as Richard Stallmans Free Soft-
ware Foundation have created middle-solution mechanisms such as the
GNU General Public License to allow for the exchange, study, and modi-
fication of code without fear of agents claiming and closing previously
open-source works.
Open-source software functions according to the gift economy, which
operates on a logic of mutual aid to foster strong relationships and the
betterment of the larger community.46 In his seminal study of gift-giving
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culture, Marcel Mauss reads the rules of generosity in tightly knit tribes
as a means of producing a friendly feeling between [members] for the
purpose of strengthening bonds; however, endemic in the reception of
gifts is an understanding that that act of generosity should be repaid some-
day in the future, not necessarily to the gift giver but to the community.47
This is probably the largest divergence from prevailing attitudes in cul-
tural circles; though a creative poacher may be perceived as parasitic in
the literary sphere, programming communities understand that their work
benefits the larger populace, hence it is seen as a contributive (but not
definitive) act, however derivative it may appear. The difference in atti-
tude stems from the fact that literary culture operates according to a
restricted economy, in which the people or companies that control
access to valuable goods meter them out to consumers in order to make
a profit.48 In open source, the gift economy dictates that the token of ex-
change is code and constructive feedback, strengthening community and
ultimately resulting in burnished software.
A typical scenario begins with a frustrated computer hobbyist who
stumbles across a problem in her work or leisure time. Our hobbyist seeks
out a software solution to find that it is either nonexistent or woefully
inadequate. Annoyed, she sets out to write her own program to solve her
problem. After some weeks of tinkering and debugging, she finds that it
works, but it is inelegant. Nevertheless, she releases the program in binary
form with the original source code into the wild, on an online forum.
Likeminded and equally frustrated users find her work and download it,
and they begin to e-mail her requesting changes or bug fixes; our hobby-
ist pursues them for both the gratification of helping others and the intel-
lectual challenge. Other users may have solutions, which they suggest and
she incorporates. Soon enough, the program begins to become more pol-
ished, robust, and efficient. Eventually, our hobbyist loses interest in the
program and decides to give up ownership of the project to pursue other
endeavors. After she announces her departure, interested parties take over
the projectthe program continues to evolve as long as an administrator-
author keeps versioning. Throughout the process, there is no money
charged for the program or for access to the source code, which is licensed
under the GNU General Public Licensethe source code is freely avail-
able for modification.49
A tangible open-source illustration might illuminate the aforementioned

structural factors in action. One of the more active areas of open-source
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collaboration is XDA Developers,50 which has been in operation since 2003
and currently boasts a membership of more than 4.74 million registered
users. The site acts as a clearinghouse for mobile computing, concentrat-
ing mostly on the Android and Windows operating systems for smart-
phones. The XDA forums are of particular interest, for they host a wild
array of intriguing dialogic creativity; it is here that users trade informa-
tion and custom code designed to enhance the operating systems of their
smartphones. For example, the Android operating system, which runs
across a spectrum of handsets and carriers in the United States, is based
on the Linux operating system, itself a GNU-licensed piece of software.
Google, which owns and runs Android, has built a business model quite
different from that of Apple or Microsoft. After each iteration of the Android
operating system has been released on new handsets, Google releases the
source code to the Android Open Source Project (AOSP), at which point
any curious user may download and examine it. This has given rise to an
aftermarket information economy where hackers and modders combine
The XDA Developers home page, which hosts an array of forums dedicated to hacks, tweaks,
and custom code for specific handsets, mostly of the Android OS variety.
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their knowledge and resources to alter the code as they see fit. The site
has several functions, including reporting news regarding interesting soft-
ware developments or innovative hacks, speculating on rumors, offering
both written and video tutorials, and, last but not least, hosting forums
where users communicate with each other about bugs, requests for help,
and custom ROMs.
The last of these forums is probably the most controversialand the
most popular. In general, when Google and a wireless carrier such as AT&T
enter into an agreement to carry a smartphone running Android, the car-
rier negotiates certain conditions. Some of these are necessary because
of the different wireless technologies each carrier employs, which require
custom software to ensure that the hardware and operating system work
in concert. However, some of these restrictions or features can frustrate
or annoy users. For example, some smartphones might allow hot spot teth-
ering, which allows the user to turn the phone into a wireless router for
use with a laptop or tablet, but many carriers disable this function unless
users pay an additional monthly fee. Most Android smartphones already
have the hardware capability to hot spot tether, so it is usually a matter
of the software code restricting usage, and it is also one of the first hacks
that XDA users write for new phones. Furthermore, some carriers burden
phones with bloatware, which is impossible to delete and may actually
slow down the phone or drain the battery. Ever in search of maximizing
the power, speed, and battery life of their phones, the developers at XDA
have gone from releasing small patches to fully customized operating sys-
tems (ROMs) that eliminate unnecessary apps, add useful features, increase
battery life (sometimes as much as 50 percent), and overclock the oper-
ating system to improve performance.51
The mechanics of how these custom ROMs and software patches come
to be, however, is what is most germane to this chapter. The discussion
forums are an exercise in controlled chaos and can run into hundreds of
pages in length. When a developer decides to post a custom ROM or hack,
he (the vast majority of users appear to be male) creates a new thread
within an appropriate forum, listing features, a brief background narra-
tive, detailed installation instructions, credits to contributors, download
links, and screenshots of the ROM in action. From that point, the thread
expands quickly, as replies roll in, sometimes by the second. Responses
generally fall under several categories: gratitude, moderation, flames, and
suggestions, all of which serve specific functions in the operation of the
forums.
1 1 2 T H E O P E N - S
OURCE MODEL
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A post on XDA Developers announcing a new ROM for an Android handset. The post
details modifications, features, installation instructions, credits, and known issues.
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The culture of the community is cultivated and crafted by the admin-
istrators and moderators of the site and by the community of users. Fore-
most on their list of priorities seems to be encouraging developers, often
through expressions of gratitude. At times, it appears that most of the
posts by other users simply consist of thank-yous for the original posters
programming skills. A representative sample of posts follows:
Wow! Awesome! another epic rom development?

Nice! Cant wait to test.
Kernel work too?! Youre a friggin Renaissance man!!! Jack of all trades!!52
The engagement of the developers with the users is driven by brief mis-
sives of encouragement such as these, to the point of being integrated
into the interface. Users can, in lieu of writing a formal post, simply click
on the Thanks button, which operates on the same logic as the Facebook
Like button. A user who accrues enough Thanks has his social capital
quantified and represented by his Thanks Meter, which appears under-
neath his avatar. Still, threads sometimes become so inundated with thank-
yous that other users step in to gently or not-so-gently remind people to
use the Thanks button and cease posting clutter.
Thus, when the limits of gratitude are broached, the discourse shifts to
moderation. Though the architecture of the Internet affords equilateral
access, the site itself has a layer of code built atop it that implements a loose
hierarchy. Site administrators or high-level users have the power to regu-
late or, in extreme cases, ban users in the interest of keeping discussion
on point. When discussion begins to veer into unrelated or inappropriate
topics, administrators and other users chime in to remind participants to
A typical forum post giving feedback to a new ROM from XDA Developers. Note the
Thanks button on the bottom left.
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stay relevant and on-topic. Comments of this nature can be admonishing,
snarky, or hostile in tone, but discipline is generally only exercised when
matters begin to get out of hand. Moderators are needed when sniping
and arguments break outthe language and tone of many of the posts
can be casual and, at times, juvenile, which can quickly lead to outbursts,
or flames. However, there seems to be very little trolling, and most argu-
ments tend to center around accusations of theft or usage of code with-
out authorization of another developer.
The discussion is most productive when the users and the original
poster, or OP, engage each other in troubleshooting and/or suggestion-
oriented dialogue. By nature, erasing the factory-installed ROM with cus-
tom code is a risky affair, and it is inevitable that the errant bug will slip
through, at which point users post detailed questions outlining the error
at hand. The OP generally responds by trying to replicate the problem
and adds it to his list of troubleshooting tasks. Others might offer work-
arounds or other solutions to the problem, upon which the discussion
delves into the rarified world of codespeak.
The result is a wildly active subculture of users and developers span-
ning a dizzying array of mobile handsets and numerous iterations of the
Android operating system. To pick a popular example, T-Mobiles variant
of the Samsung Galaxy S2 (T-989) has an active community of users who
are still building new hacks, patches, and ROMs, all based on the original
stock software as well as the AOSP version. An unscientific survey shows
the following ROMs: CyanogenMod 10, ParanoidAndroid 2.55, Jedi Mind
Trick X3, Galaxy SBean, SlimAOKP, Infamous Resurrection 3.0 Gangnam
Style Edition, LiquidSmooth, MIUI.us, PACman True All in 1, The Sith 4,
Xtremeperia, and BulletProof, to name a few. Each of these ROMs is branded
in its own unique way and specializes in certain areas; one might proclaim
speed as its priority, and another might strive for the longest possible bat-
tery life, and still another might focus on the UI aesthetics. The interaction
between developers, users, and the codebase back at AOSP results in the
constant development and evolution of the code, which, as time marches
on, continues to fork and split off into different directions to create a
diverse software ecosphere. Furthermore, they continue to version, until
a developer loses interest in the handset or platform, at which point an
acolyte might pick up the reins of the project.
It is no accident that the Android OS has such an active base of users and
developers openly trading information to develop the platform; it is for
this reason that the platform has evolved at such a rapid pace. In contrast,
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the iOS platform published by Apple remains closed, and the developer
community is subsequently much smaller.53 Programmers interested in
modifying iOS have to take the extra step of reverse engineering the soft-
ware because they cannot know how the code works, which severely cur-
tails how much of the OS can be modified.
A few things make this possible. First, our hobbyist needs a horizontal
network to facilitate communication and publication. By horizontal, I
mean there is no hierarchical choke point where her messages or files can
be vetoed or slowed down. Similarly, information can flow freely back to
hera bidirectional relationship. Second, she needs access to an open
terminal or end point, in this case, the computer. There is nothing in the
computer that blocks access or restricts her movements. But it is also
accessible due to a supportive social and educational system that has
granted her programming literacy. Third, the mechanism driving textual
and cultural development is direct, open feedback in various forms. This
is in part due to a culture of feedback built on a strong sense of commu-
nity and purpose.
Open-source software has its foibles, not the least of which is the strongly
libertarian undercurrent that should give even its most ardent proponents
reason to pause. It would be fair to say that Raymonds vision ignores some
of the realities of coding spread over many hands and the effective mana-
gerial steerage needed to complete a project. Moreover, software frag-
mentation can indeed be a problem, which can be bewildering. Returning
to our hypothetical hobbyist, let us assume that some users of her soft-
ware disliked the platform (say, Python) and wanted a more universal
client written in Java. A small disagreement like this could lead to a mem-
ber breaking off to write her own port of the original program in a differ-
ent language with slightly different aesthetics or additional functions. Or
she could go the other direction and create a more streamlined version
catering to users of a certain flavor of Linux, perhaps Mandriva instead of
Ubuntu. The point is, given enough interest, a program can have an un-
wieldy number of iterations, each targeting a certain market niche. In con-
trast, a famously controlling company like Apple, which exerts command
over both software and hardware, is well known for its strict discipline in
terms of both versioning and aesthetics. Compared to the uniformity of
Apple (a walled garden), open-source software often resembles wild
overgrowth. It may take a skilled user to navigate its undergrowth to find
what she wants. Apple users have the decision made for them, which
makes things considerably simpler.
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However, the advantages are not insignificant. I had written that if a
problem with an open-source program appears, knowledgeable users can
read the programming code to see where it lies. In distinction from pro-
prietary software companies, a much larger user base vis--vis a small
group of elite software engineers generally finds solutions and produces
fixes in a quicker, more efficient manner, the so-called Delphi effect, which
theorizes that a larger number of amateur observers, in the aggregate, will
be more accurate than a single expert. Elite engineers working at Google,
Microsoft, and Apple generally conform to a homogenous moldmale,
intelligent, creative, with stellar academic pedigrees. However, the breadth
and diversity of a user base, though users may not all individually match
up to the abilities of a software company engineer, can overcome their
deficiencies by providing unique perspectives to a problemwith enough
eyes, all bugs are shallow.54 Thus open-source software, backed by a strong
sense of community, offers solutions at a quicker pace than proprietary
software. And while I previously characterized the many forking paths of
open source as fragmentation, the sheer diversity of programs with an
abundance of community support can be quite liberatinga different fla-
vor for every palate. In an attempt to temper the idealistic rhetoric sur-
rounding open source, Peter Wayner soberly counters that the free software
revolution isnt really a revolution at all. Its just the marketplace respond-
ing to the overly greedy approaches of some software companies.55 Though
Wayner characterizes free software as a market correction, he ignores the
major contribution of said correctionthe dialogic tension between pro-
prietary and open source engendering rapid development.
The open-source paradigm takes advantage of a horizontal network, a
community operating on a gift economy to offer feedback, and accessible
terminals to create a diverse, rapidly evolving body of knowledge. It has
faults, but coexisting with proprietary software may compensate for any
weaknesses. Likewise, literary cultural development, following a similar
model, may offer a greater breadth and more rapid literary development
and there is nothing to say that such a model cannot be synchronous with
the extant, regulated print model, if allowed by existing stakeholders.
I have attempted to outline a theory of disruptive textual evolution based

on the hierarchy of distribution networks, the terminal, and feedback
mechanics. I had previously suggested that open access to source code
was an important factor in the rapid growth and evolution of the Internet.
In conjunction to a culture of equilateral access, the Internet had met both
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conditions needed for an evolving ecology of texts. I had also pointed out
that in terms of hierarchical access, print literature had moved toward a
more author-and publisher-centered model that limits textual dialogism
and literary development. In this regard, print literature fulfills only one
of two conditions needed for a thriving textual culture. However, that
does not indicate that print literature remains completely static, for it does
grow, albeit at a slower ratebut it grows nonetheless.
Others have similarly made conjectures on how digitization reframes
literary culture; indeed, mine is an argument that engages with and inter-
venes in their prevailing scholarly discussion. N. Katherine Hayles, for
instance, suggests rethinking our models for reading (close, hyper, or
machine) thanks to new terrains made available by digital tools.56 While
this chapter is in some ways implicitly engaged with the reading process,
my argument is more concerned with the act of rewriting, a subject that
Kathleen Fitzpatrick has meditated upon. Fitzpatrick specifically targets
the measurement of humanities productivity in the digital age, but her
analysis aligns with the broader contours of my thesis. In dwelling on schol-
arly authorship, she makes several pointsthat a nonhierarchical peer-
to-peer review system may ask authors to displace themselves from the
center; that authors may find this an anxiety-inducing or unwelcome prac-
tice; and that at the heart of the matter is a fear of losing ones sense of
individualism among a sea of collaborative nodal points. She writes,
I argue that we will need... to rethink our authorship practices and our
relationships to ourselves and our colleagues as authors, not only because
the new digital technologies becoming dominant within the academy are
rapidly facilitating new ways of working and of imaging ourselves as we
work, but also because such reconsidered writing practices might help many
of us find more pleasure, and less anxiety, in the act of writing.57
The humanities scholars anxiety about a more collaborative mode of pro-

duction is not unique; indeed, while the currency of exchange may be
different, it is for similar reasons that fiction writers and copyright hold-
ers bristle at the idea of their work being distorted by others. I differ from
Fitzpatrick in taking the long view of literary development over space and
time; whereas she concentrates on the anxiety of the individual author
and text in a nearly coterminous momentlargely restricted to the aver-
age shelf life of a scholars careerI concentrate on the long-term cul-
tural consequences and theorize that a disruptive textuality functions not
only in the moment of creation but iteratively and generationally.
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Instead of upholding a regime of textual permanence, I suggest that
literary culture might look toward software programming to conceptualize
a literary versioning. In contradistinction to extralegal texts and fan fiction
dojinshi, which connote a degree of statelessness, I offer literary version-
ing as a means of legitimating and codifying the dialogic impulse. It is a
proposal beholden in part to Franco Morettis call for distant reading, a
distant view of the literary system deemphasizing the role of the static,
individual text. In true iterative fashion, I build on Fitzpatricks character-
ization of versioning as a palimpsestic revisioning through an electronic
platform, a threat to a discipline and medium that privileges authority
and finality.58 I define literary versioning, however, as derivative creative
acts serving an important functionwhether going by the name of hom-
age, plagiarism, parody, appropriation, satire, or even fan fiction. By per-
petually recontextualizing and creating multiple dimensions of a popular
work seeded in the cultural consciousness, the text is renewed, refreshed,
and, most importantly, a vehicle for innovation in genre and content. Lit-
erary texts are not fixed, static items but part of an ever-evolving, fluid
system that constantly revises.
In programming circles, there is a word for redundant, outdated, or poorly

written code that persists in the deepest recesses of source code: cruft.
It is difficult to clean because software programming is an iterative pro-
cess dependent on legacies; code is constantly reworked, recycled, and re-
visedit is built on what has come before, however imperfect it may be
or obsolete it may become. It is not always a contentious relationship;
sometimes legacy code can be well integrated in the journey toward new
horizons, but other times, cruft must be discarded and rebuilt from the
ground up for software to take advantage of advances in hardware or pro-
gramming methods.
Now, imagine for a moment that cruft has the right of refusal, if, like
Bartleby, it simply preferred not to be deletedor it had an incentive to
remain. Software development would immediately stall or, at the very least,
slow to a crawl. Such a thing is unimaginable in programming, because it
goes against the very mechanism driving software developmentthe free-
dom to revise, pilfer, and, if needed, destroy extant code. Likewise, litera-
ture, and by extension culture, would benefit from an analogous model
of productionversioningfrom software studies because the platforms
(both encoding and decoding) are beginning to merge.
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Invested stakeholders, such as established authors and extant publish-
ers, might find such radical change threatening. The reading and writing
public, however, stand to gain by being able to actively participate at the
ground level and contribute to the arc of culture on a large scale.
However, in the present economic literary model, it is not in the best
interest of publishers to challenge readerships with divergent or alterna-
tive viewstheir interest is in upholding and reproducing the ideology of
original genius, to protect the cult of authority. In cases in which content
owners feel threatened by a divergent take on their work, they might use
legal means to protect their legacy and original intent. Moreover, the prac-
tice of litigating against copyright infringers has become increasingly com-
mon as a revenue stream. Literature has yet to embrace the practice on a
large scale, but as electronic readers gain in popularity and piracy rises,
publishers may take to litigating to recoup losses. As I have intimated,
copyright has transformed from a largely protective measure for the read-
ership into a tool for protecting the economic interests of authors. The
law protects the hierarchy of the print network, and when applied to the
digital plane, the same protections are triggered.
This might prove to be the largest hurdle to formulating a disruptive
textual environment for literary culture. Though the digital network was
developed in a staunchly libertarian context, designed by software pro-
grammers during a unique historical moment, leading to its vast open-
ness, it must still contend with regulatory agencies and physical architecture
that has crept toward verticality. The print network has the additional
challenge of overcoming an economic and cultural legacy of fixity. But as
I have shown, open source can coexist with proprietary software regimes.
Architectural elements already in place tilt literary culture toward a
mode of production susceptible to versioning. After all, most texts are now
born digital, regardless of their ultimate delivery system, be it print or
electronic. That is, most writers create initial drafts on word processing
software rather than by hand or typewriter, and texts increasingly travel
through electronic networks rather than through physical delivery. As
e-book platforms rise in popularity, readers might begin to wonder why the
flickering signifiers on the screen remain so rigidly static, and the logic of
textual permanence may begin to conflict with a disruptive textual culture
endemic to the electronic network and terminal. What remains missing is
an institutionalized mechanism for dialogic feedback. To that end, I suggest
porting from open source to the literary, a concept robust enough to co-
exist with a strongly protectionist, author-centered traditionversioning.
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E P I LO G U E
On Being Accused
w h i le p u t t i n g t h e f i n i s h i n g tou ches on this book, I had an

encounter that painfully crystallized the argument embedded within it.
A dilettantish graphic artist, I had designed a media collage in Photoshop
using a popular character that I was quite pleased with and decided to
order an 8 10 print from a pharmacy chain store around the corner,
because I didnt have a color printer. I uploaded the image file through
the stores website, but when I arrived to pick up the order several hours
later, the sales clerk returned to the register with my print and a troubled
expression.
What do you intend to do with this? she asked, dangling the folder
in front of me.
I hesitated. I didnt understand the intent behind her questionand I
also didnt think she had any business asking it. Reading the confusion on
my face, she changed tactics.
Youre violating copyright. You cant use this character.
I was dumbstruck. Id created and designed an image in the privacy of
my home for personal usewell within the realm of fair useand when
I least expected, the legitimacy of that creative act was being questioned.
After a pained beat, I sputtered something about artistic freedom and fair
use but was so flabbergasted and upset that Im not certain I made any
sense.
She proceeded to lecture me about copyright infringement and would
only hand over the print if I signed a release form promising not to use it
for commercial purposes. In a daze, I mechanically paid for the print and
walked out.
Im both fascinated and horrified by what transpired and have spent
some time trying to figure out why I was so haunted by the employees
1 2 1
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interrogative line of questioning. After several repeat performances in my
minds eye, a few things began to emerge from the haze. First, theres the
matter of the pharmacys unabashed surveillance. I was now cognizant of
the fact that the store actively monitors all of the photographs and images
that are printed, scanning for possible violations of copyright. I suppose
that Id always assumed, perhaps naively, that photos were a personal
matter, or at least limited to a private transaction between customer and
business, but that illusion has been shattered. The employee had revealed
that transactions are not only surveilled but subjectively judged. Having
designed and uploaded an image from the confines of my home, I had
mistakenly presumed that the pharmacy would simply be another medium
through which a material print would emerge, like a printer. Nothing
criminal or illicit was evident, but the mere perception of possible infringe-
ment would have to be something I as a customer would have to be vigi-
lant about.
Second, my encounter was a mirror reflection of the skewed power
dynamic between canonical and noncanonical interests. I entered as a
customer to engage in a transaction with a business, but in that strange
space within, I transformed into a defendant in a pseudo-legal inquiry. The
burden of proof was upon me, and I had to defend myself from accusation.
My guilt was presumed, not by a legal expert, but a sales clerk whose exper-
tise may not be particularly well informed. Signing the waiver was an
admission of guilt and absolution for the corporation behind the policy.
Third, and most importantly, I reflected on how amateur artists were
now being made to feel like criminals for tinkering with culture and the
impact of such barriers over time. Admittedly, there are myriad alterna-
tives available; namely, an artist could simply purchase her own color
printer and produce prints in the privacy of her own home or find another
store without draconian policies. However easy it might be to avoid this
particular avenue, Im concerned with the implicit message being drilled
into the minds of nonprofessional creators daring to play with popular
culture over time by asking them to sign waivers many times over. As minor
as this matter may be, the aggregate effect on cultural production prac-
tices may be very damaging indeed.
To be fair, this particular employee was just doing her job, if somewhat
overzealously. The more pressing matter is the fact that the corporations
lawyers are so wary of being held liable that theyre willing to install kan-
garoo courts in a corner of the storeand risk alienating their customers
in the process. Matters of intellectual property have become so powerful
1 2 2 E P I L O G U E
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and all-encompassing that it now transcends, violates, and transforms
other realmsin this case, privacy and customer relations. Its a direct if
somewhat misguided response to the perception of a decentralized net-
work enabling piracybut in truth, its the threatening shift in cultural
logic thats the true target.
A disruptive textuality is far from assured. Ive framed this study through
the lenses of the law and network because technological ruptures expose
a tension between them that can influence the strength of a disruptive
textual environment. And while this tension demands reconsideration of
extant paradigms regarding the creative process, at heart is a clash of cul-
tures. With a law favoring copyright holders based on the norms of print
culture, and a nonhierarchical network favoring information exchange
based on programming cultural norms, there were bound to be conflicts.
Though the strain between the two may seem technically driven (legal vs.
software code), theyre representative of larger cultural and historical con-
flicts. Technology, law, and policy are all rooted in a particular cultural
logic, and its by a strange confluence of accidental circumstances that the
dialogic impulse has survived. I think that the most promising accident
is the combination of market forces, programming culture, and breakneck
advances in computing thats already transforming our attitude toward
iterative creativity.
Computing changes. There are probably fewer devices more important
than the personal computer to the modern knowledge worker, yet even
fewer devices are less stablethe PC market changes not only in terms of
power and speed but also in terms of media metaphors, user interfaces,
and decaying skeuromorphs. Think, for example, of the media metaphor
of Save to Disk, usually in the form of a floppy disk icon. Its doubtful
that many people have touched a floppy disk for well over a decade, and
its all but certain that that relic in graphical user interfaces will eventually
be replaced by something else altogether. Each year brings forth newer
technologies and upgrades in speed, memory, design, and connectivity,
not to mention a panoply of peripherals. Even those of us who never bother
to change anything will inevitably need to upgrade, as operating systems
slow to a crawl after caches go unemptied, hard drives deteriorate, and
RAM sticks fail.
Rapid architectural and environmental change is the reason that the
cultural shift toward a relative irreverence for permanence and stasis
has been brought about, a symptom of what Lev Manovich refers to as
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transcodingthe external influence of new media on other cultural forms.
This reframes cultural objects as part of an ever-evolving process rather
than end products. For instance, when we think of electronic media
cultural products meant to be created and consumed digitallywe are
unfazed by planned obsolescence and constant innovation. Because the
electronic platforms change just as often, we expect games, programs, and
even digital texts to lose relevance. Looking back at the primitive early
days of hypertext fiction, for example, can be cringe inducing, regardless
of how well the lexia were crafted. The same logic has begun to bleed over
to other media: films are no longer remade but rebooted. There are cer-
tainly classical or iconic elements in older productions, which make them
ripe for revisiting, but their aesthetic, bounded by their technology, dates
them, and their cultural relevance diminishes by proxy. Its at this point
that those objects are remade and refreshed according to not just techno-
logical but also cultural measures.
Print-based cultural objects function according to a different logic.
Although texts may come in different forms, with variations in shape, size,
cover images, typeface, and, on some occasions, editorial gloss, its accepted
that the content remains the same, as well as the basic components and
structure of the book. Book technology, after a period of rapid develop-
ment, now changes at a relatively glacial pace in comparison to comput-
ing. In conjunction with an economic structure, legal policies, and cultural
perception centered on the sanctity of the text and authorial voice, the
book has become surrounded by institutions that are invested in stasis.
This makes less and less sense as literature and culture are increasingly
born digital and consumed. In particular, a disruptive logic will take hold
as more readers migrate to electronic platforms, which are governed by
the same rules of technological obsolescence. E-readers (or whatever other
form they may take) are likewise subject to the vicissitudes of technologi-
cal innovation and the market. When readers begin to circulate extralegal
texts revisiting beloved universes, characters, and settings, it may seem
less sacrilegious because a logic of disruption has already taken hold.1
Theres evidence of this change already taking rootagain, stemming
from architectural and cultural sources rather than any essentialist ideol-
ogy or natural law. A confluence of literary and computing culture, the
Electronic Literature Organization (ELO) recognized in 2004 the steady
deterioration of computing and published a green paper, Acid-Free Bits,
outlining best practices for not only preservation but interoperability.2
Writers and readers of electronic literature and culture face a problem:
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rapid material decay and technological obsolescence. One solution for
preservation already widely practiced is to install redundancythe prolif-
eration of multiple electronic copies hosted at multiple sites the world over.
However, the more pressing concern for the ELO is inaccessibility creep:
the phenomenon of electronic objects becoming nonfunctional not be-
cause of material deterioration but because advances in hardware and
software have rendered culture wrapped in obsolete platforms unreadable
by the interface. To preserve readability, the ELO recommends openness
choosing open-source platforms and making available documentation
and the source code rather than closed or proprietary software options.
While this has the desired effect of granting access and future-proofing
for successive generations of readers, Id argue that the most important
element in the ELOs paper is that theyre establishing a practice that wel-
comes and encourages commentary, pilfering, and versioning. Basically,
theyre porting a practice that has long been part and parcel of software
programming culture to literary culture; and although this may be partly
driven by ideological motives, its largely the result of very material con-
cerns. This, in conjunction with the practice of licensing content under
the Creative Commons licensing system, creates an ecosystem of mate-
rial that, by design, welcomes the recirculation and evolution of culture.
Announce to a roomful of writers and scholars that the economy on which

their lives depend is obsolete and you will quickly find yourself becoming
a very unpopular personeven though that isnt the crux of your mes-
sage. Despite my best efforts to contextualize my argument and placate
audience anxieties, Ive often found myself in the rather uncomfortable
position of fielding hostile questions and accusations after presenting
sections of this book. Its an understandable reaction, given that Im call-
ing into question an internalized logic involving the moral sanctification
of the author figure with regard to the integrity of his or her work, and the
devaluation of those who could be seen as infringing upon those rights.
I understand that questioning the merits of intellectual property and
exploring the value of the network is a delicate affair. On one hand, cul-
tural figures and scholars are heavily invested in both the concept and
execution of strong intellectual property rightsafter all, its the (per-
ceived) means of their livelihoods, the means of protecting their work and
reputations. Arguing for its weakening immediately sets stakeholders on
edge. On the other hand, its equally easy to be misunderstood as a uto-
pian digital network advocate. The early rhetoric surrounding the Internet
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magically bringing democracy to China, effacing racial and gender differ-
ences, and releasing users from the physical confines of realspace has
moved to a more measured, sometimes alarmist discourse. The pendu-
lum has swung quite the other wayand this skepticism is a very good
thing indeed. Still, that can make for contentious discourse when using
the logic of the network to interrogate long-standing axioms.
Its not difficult to trace the trajectory of this turn in philosophical
terms. In some ways, its merely the logical conclusion of a long-standing
cultural movement, from the industrial, centralized mode of production,
both material and cultural, of modernism to the decentralized, distrib-
uted, networked mode of production of postmodernism. Postmodern
thinkers have long been skeptics of the text as cohesive unit and of the
role of the author, but this has largely been circumscribed to rarified,
abstract discussions. However, the model of production is finally catch-
ing up to theory, and the abstract is suddenly very concrete, with existen-
tial and financial implications.
Allow me to articulate what this book does and does not do and explain
how Ive come to defend the parodists, the plagiarizers, and their deriva-
tive creations. What this book does is present a case for how a disruptive
textuality contributes to cultural discourse in several ways. First, it dis-
courages canonical stasis and accelerates cultural development. It bal-
ances the power between author, reader, and writer so that no one faction
wields veto power over another. Chapter 1 centered on professional dia-
logism, illustrating how difficult it can be to dialogically engage with texts
in the current legal climate, when the threat of litigation is an effective
deterrent to parodic texts. I argued that such a regime discourages itera-
tive innovation and encourages a cultural stasis of sorts; the law as infra-
structural determinant influences the pace of cultural development. When
that determinant is no longer a factor, or has been subsumed by a greater
cultural norm, as evinced by my discussion of do jinshi writing communi-
ties in chapter 2, then literary and cultural development accelerates. For
that is the second function of a disruptive textuality: to cultivate a practice
of marking the textual landscape, to facilitate the textual call-and-response.
Chapter 3 offers a comparative analysis of iterative textual creativity by
examining software programming communities that thrive on open access
and dialogic versioning. There is a recognition that everything, even final
releases, are always in beta, that nothing is sacred or final, thereby cir-
cumventing the permanence of the sacrosanct text. Disruptive textuali-
tys third function is to guarantee a generational turnover that is beholden
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to no legacy, ideology, or sanctified authority. The dialogic impulse has
always been there, hovering in the margins, but infrastructural factors
determine its strength. What this book does not do is call for the disman-
tling of intellectual property rights; it does not advocate the free distribu-
tion and pirating of copyrighted material; it does not call for the readers
of the world to unite against an authorial system of oppression.
Though my project is framed by the dramatic tension between legal
policy and networked collaboration, it also reveals that that framing masks
the internal engine driving cultural development forward. Indeed, as Ive
argued, theres nothing unique about development in computing that
hasnt existed in print long before, but as two very different industries with
disparate histories, they have come to represent different attitudes toward
cultural production. Prints close relationship with governmental censor-
ship, political thought, and the economic concerns of intellectual prop-
erty has given birth to a culture that values authorial legitimacy, consistency,
and original genius. Computing, conversely, stems from a completely dif-
ferent culture that has built an environment that prioritizes progression,
experimentation, and tinkering even after a product has been pushed
out. Print and computing are not completely antitheticalprint has space
for experimental works without much permanence, and vice versabut
legal, cultural, and architectural factors lead them in opposite directions.
Ultimately, Im calling for the recognition and decriminalization of
dialogic activity and the fostering of a disruptive textuality by reforming
legal and network infrastructures for the good of the reading public and
literary culture. This doesnt necessarily mean we need to dismantle an
author-centered culturea disruptive textuality isnt necessarily inimical
to authorial regimes. As Ive pointed out, the dialogic relationship between
subcultural and canonical texts can synergetically benefit protected texts,
writing communities, and the larger reading public. But the romantic idea
of authorial genius can no longer enjoy uncritical acceptanceits simply
become too restrictive. Finally, I have to stress that the present state of law
and network is anything but stablethe only constant, Ive argued, is the
dialogic impulse to respond to a creative call. My point is that a disruptive
textuality can be made or unmade according to infrastructural elements
and cultural norms; the right combination of elements has to be present
for it to exist. Only then can the compounding power of iterative textual,
literary, and cultural innovation realize its potential.
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ACKNOWLEDGMENTS
ive h a d the g oo d f ort u n e to be surrounded by a congenial group

of fellow thinkers, critics, and travelers. Im foremost indebted to Alan Liu
for his intellectual acumen, guidance, and professionalism. Bill Warners
and Jon Cruzs probing questions and critiques helped me learn how to
dodge, parry, and counter. Mark Rose graciously took time to read some
of my material in its more protean stage to help sharpen its focus. While
Yunte Huangs roguish puns made me snicker at many an inopportune
moment, his generosity and encouragement kept my aim true. Many oth-
ers have, at various times, contributed to my intellectual and professional
journey in ways both big and small: N. Katherine Hayles, Andy Fleck, King-
Kok Cheung, Stephanie LeMenager, Mayfair Yang, Jim Lee, Susan Koshy,
and Carl Gutierrez-Jones.
As I write, Im in the midst of transition and transformation. Although
Im joining the Department of English at the University of Utah, I couldnt
have come this far without my colleagues at Old Dominion University,
who offered their friendship, feedback, and unwavering support. Many
thanks go to Kevin Moberly, Delores Phillips, and Tim Robinson for taking
the time to read various chapters in their early stages. Additionally, the
wonderfully ribald fellowship of Drew Lopenzina, John McManus, Liz
Black, Nate Owens, Junji Yoshida, Sean Sadri, Sarah Florini, Avi Santo, and
Janet Bing lifted my spirits when I hit the proverbial wall. Linda Hero,
Marsha Jones, Tammy Allen, and Dana Hellers administrative powers cant
go unmentioned. Manuela Mouro, Ed Jacobs, Kathie Gossett, and David
Pagano conspired to bestow upon me membership to this most exclusive
of clubsthey deserve your approbation or blame. Im also indebted to
Imtiaz Habib, whose gentle encouragement belies his stern exterior.
Scholar-gentleman Jeff Richards shepherded my entrance to Old Domin-
ion, and we are all poorer for his absence.
1 2 9
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Its with sweet sorrow that Im parting with Virginia, but my gaze eagerly
turns westward to The U and my new colleagues whove welcomed me
into the fold, including Kate Coles, Matt Potolsky, Jeremy Rosen, Stacey
Margolis, Andrew Franta, Richard Preiss, Jessica Straley, Vince Pecora,
Angela Smith, Scott Black, Howard Horwitz, Barry Weller, Lulu Alberto,
Vince Cheng, Kent Ono, and Mamiko Suzuki. I look forward to making a
lasting contribution to an already excellent and rigorous department.
Fellow travelers on a rather unusual journey who have at various points
offered their sympathy, insight, and humor include Julia Lee, Nadine Knight,
Marcus Lam, Julian Cha, Emily Anderson, Kyong-mi Kwon, Elijah Bender,
Pavel Oleinikov, Martin Rosenstock, Satoko Naito, Hyewon Song, Tung-Hui
Hu, Betsy Huang, and Greta Niu. Civilians Andrew Wozniak, Casey Hurst,
and Jane Kim kept me in good mirth while chained to the desk. Im cer-
tain there are others who slip my mind; I beg their forgiveness.
Special thanks to Alice Randall and Pia Pera for their generosity in tak-
ing the time to speak with me about their work. There is so much more to
their stories that I couldnt fit into this book; I hope that someone more
articulate than I will someday tell their tales in their entirety.
The editorial staff at the University of Minnesota Press deserves more
than these few words can express. Im grateful to Doug Armato for his sup-
port, encouragement, and interest in my project. Danielle Kasprzak, Erin
Warholm-Wohlenhaus, and Mike Stoffel have been paragons of profes-
sionalism during the production stage. I also thank the anonymous re-
viewers who took the time to provide detailed and nuanced readings of
the book manuscript. Aaron McCullough and Tom Dwyer deserve a tip of
the hat as well.
This book could not have been completed without the institutional
and financial support of a James L. Hixon Fellowship; the ODU Summer
Research Fellowship Program; UCSBs Consortium for Literature, Theory,
and Culture; Waseda University; and the IIE Fulbright Commission.
I dedicate this book to my family. My sister Emily is the source of much
pride and wisdom. My parents, drawing from a well of strength, sacrificed
everything so that I, their undeserving son, might have the luxury of an
education.
1 3 0 A C K N O W L E D G M E N T S
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NOTES
Prologue
1. Online Bulletin Board Systems were an ad hoc network of home computers with
modems running BBS software that allowed an end user to dial and connect to a
host through a telephone line. The disadvantage of such a network was that it only
allowed one user to log in at a time, because a single telephone line on a single host
computer effectively monopolized the system. Much time was spent dialing and
redialing BBS lines, especially with popular systems, because the lines were occu-
pied by other users.
2. I understand that researchers at governmental and university institutions (as well
as business enterprises) had enjoyed and benefited from networks long before my
time. It is for this reason that the technorati are sounding the alarm bell, because
the United States is falling rapidly behind in terms of Internet access and speed
compared to other countries that have made these a national policy priority. In
their alarm is an implicit recognition of the importance of not only access but
signal quality assuring interactive information exchange.
Introduction
1. Siva Vaidhynathan outlines his objections to Googles overreach, including the
Google Book project. See Vaidhyanathan, The Googlization of Everything (and Why
We Should Worry) (Berkeley: University of California Press, 2011).
2. As of this writing, a separate authors case is still winding its way through the legal
system, after an initial settlement was agreed on between publishers and Google.
See Jennifer Howard, Publishers Settle Long-Running Lawsuit over Googles Book-
Scanning Project, Chronicle of Higher Education, October 4, 2012, http://chroni
cle.com/article/Publishers-Settle-Long-Running/134854/.
3. Important as this battle may be, it is secondary to the larger cultural shift it signi-
fies. If not Google, another large institution would have taken up the digitization
effort. Admittedly, it would better serve the reading public for a publicly funded
effort through the Library of Congress or consortium of university libraries to spear-
head the project, but there has long been a history of private companies tackling
1 3 1
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large-scale projects that eventually made their way to the public, such as private
telegraph and postal carriers. See Paul Starr, The Creation of the Media: Political Ori-
gins of Modern Communications (New York: Basic Books, 2004); see also Richard R.
John, Spreading the News: The American Postal System from Franklin to Morse (Cam-
bridge, Mass.: Harvard University Press, 1998).
4. Early cases of intellectual property infringement centered on one publisher pilfer-
ing from another without compensating. In those cases, the central concern was
the economic rent of intellectual property. See Lyman Ray Patterson, Copyright in
Historical Perspective (Nashville, Tenn.: Vanderbilt University Press, 1968); Mark
Rose, Authors and Owners: The Invention of Copyright (Cambridge, Mass.: Harvard
University Press, 1995).
5. Ideology of the author is a term I borrow from James Boyle, who writes that the
idea of the romantic authors seemed to rectify thorny issues surrounding intel-
lectual property at the timebut it was a mere placeholder, a temporary fix; today,
the problem has returned in a more complicated form, which authorship fails to
satisfy: we are driven to confer property rights in information on those who come
closest to the image of the romantic author, those whose contributions to informa-
tion production are most easily seen as original and transformative. I argue that
this is a bad thing for reasons of both efficiency and justice; it leads us to have too
many intellectual property rights, to confer them on the wrong people, and dra-
matically to undervalue the interests of both the sources of and the audiences for
the information we commodify. Boyle, Shamans, Software, and Spleens: Law and
the Construction of the Information Society (Cambridge, Mass.: Harvard University
Press, 1997), xxi.
6. The idea has started to gain traction with a number of scholars. Gary Hall argues
for more open access and exchange in a largely academic and institutional con-
text, but the principles he outlines affect cultural production as well. In particular,
the concept of a collaborative, iterative creativity seems to have taken hold in the
field of poetics, with scholars such as Marjorie Perloff positing the idea of an unorig-
inal genius, Kenneth Goldsmith meditating on uncreative writing, and Craig
Dworkin investigating palimpsestic writing that effaces and challenges. Even fic-
tion author Jonathan Lethem has publicly questioned the idea of originality in an
issue of Harpers Monthly. See Gary Hall, Digitize This Book! The Politics of New
Media, or Why We Need Open Access Now (Twin Cities: University of Minnesota
Press, 2008); Marjorie Perloff, Unoriginal Genius: Poetry by Other Means in the New
Century (Chicago: University of Chicago Press, 2010); Kenneth Goldsmith, Uncre-
ative Writing: Managing Language in the Digital Age (New York: Columbia University
Press, 2011); Craig Dworkin, Reading the Illegible, 1st ed. (Evanston, Ill.: North-
western University Press, 2003); Jonathan Lethem, The Ecstasy of Influence: A
Plagiarism, by Jonathan Lethem, Harpers Magazine, http://harpers.org/archive/
2007/02/0081387.
7. See Roland Barthes, Image-Music-Text: Essays (New York: Hill and Wang, 1978); see
also Michel Foucault, What Is an Author, in Aesthetics, Method, and Epistemology,
20522 (New York: New Press, 1998).
1 3 2 N O T E S T O I N T R O D U C T I O N
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8. Or, as Franco Moretti has dubbed, a form of distant reading. See Moretti, Graphs,
Maps, Trees: Abstract Models for Literary History (New York: Verso, 2007).
9. According to Joseph Schumpeter, established businesses must constantly research
new methods to anticipate possible paradigm shifts that may undermine their eco-
nomic models. However, as a business becomes larger and more established, an
institutional malaise begins to set in because of the unwieldy massiveness of a large
companyit is at that point that successful companies become most vulnerable to
more lightweight, smaller companies with innovative strategies and/or technologies
not beholden to ancillary industries dependent on the status quo. The dinosaurs,
as they are called, become evolutionary dead ends, unless they radically adapt.
Schumpeter, Capitalism, Socialism, and Democracy (New York: Routledge, 2006), 84.
10. In the context of Clayton M. Christensens study, disruptive comes to mean an
ever-changing landscape that managers must be ready to address. Largely driven
by market demand and consumer tastes, disruptive, in this sense, may seem anti-
thetical to a study of the humanities, because there is no guiding humanistic prin-
ciple in a neoliberal market. See Christensen, The Innovators Dilemma: The
Revolutionary Book That Will Change the Way You Do Business (New York: Harper
Business, 2011).
11. Douglas Rushkoff, Exit Strategy: A Novel (New York: Soft Skull Press, 2002), 14950.
12. Raymond Williams, Marxism and Literature (Oxford: Oxford University Press, 1977),
123.
13. Ibid., 125, emphasis original.
14. Itamar Even-Zohar, Polysystems Studies, Poetics Today 11, no. 1 (n.d.): 13.
15. Ibid., 16.
16. Ibid., 17.
17. Victor Erlich, Russian Formalism: History, Doctrine, 3rd ed. (The Hague: Mouton,
1969), 252.
18. Ralph Cohen would echo Erlichs sentiment several decades later in a lecture on
classifying poetry: What is required is a theory of innovation and variation which
makes classification possible.... Concepts of forms... can be arrived at by com-
parison of classification systems and are not dependent upon interpretation
within a work. But even such interpretation, when it is understood as historically
dependent upon earlier works, can provide a basis for distinguishing between
innovation and variation. Conceptual changes are noted by the fact that poetic
features which were recessive or backgrounded or even non-existent in the previ-
ous type are now dominant or foregrounded. Cohen, Literature and History: Papers
Read at a Clark Library Seminar, March 3, 1973 (Los Angeles, Calif.: William
Andrews Clark Memorial Library University of California, 1974), 10.
19. Erlich, Russian Formalism, 25859.
20. Ibid., 261.
21. William Paulsons expansive look at noise in literature and culture suggests that
literature itself acts as a subversive ripple in a stream of information. He attempts
to make literature relevant in an increasingly digital world of information where
conventional print narratives are beginning to take a backseat to other forms of
N O T E S T O I N T R O D U C T I O N 1 3 3
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media. Literatures role, he suggests, is to tap the reservoir of information and
present it in a slightly different way; to demonstrate something unique to that
texts verbal arrangement, unique to its way of not exactly communicating what we
might think it means to say. Building on, and in distinction to, Paulsons work, I
share his view of literature not as an isolated object but as part of a larger ecology
of information, but I narrow my analysis of noise within the literary system rather
than the greater cultural structure. William Paulson, The Noise of Culture: Literary
Texts in a World of Information (Ithaca, N.Y.: Cornell University Press, 1988), 99.
22. Quoted in Erlich, Russian Formalism, 259.
23. Critics of formalism rightly point out that the emphasis on internal systemic ten-
sion as an agent of change devalues the role of individual authors and readers,
giving the school a strongly deterministic tinge. Formalists argue that content fol-
lows form; when old forms exhaust themselves, a new form inevitably rises to take
over and move in a new direction. However, in separating art from social context,
they deny any role human agency may have in shaping the direction of art and
culture, with some going as far as claiming that if Tolstoy had not been born,
another writer would have taken his place and written War and Peace. Instead, I
think that internal tension is indelibly tied to the vicissitudes of social change,
which aligns well with the idea of noise as social distortion. Jan Mukarovksy writes
as much: Each change in artistic structure... is induced from the outside, either
directly, under the immediate impact of social change, or indirectly, under the
influence of a development in one of the parallel cultural domains, such as science,
economics, politics, language, etc. The way, however, in which the given external
challenge is met and the form to which it gives rise depend on the factors inherent
in the artistic structure. Mukarovsky, quoted in ibid., 256.
24. Adrian Johns, The Nature of the Book: Print and Knowledge in the Making, 1st ed.
(Chicago: University of Chicago Press, 1998), 31.
25. It was not until 1760 that the first error-free book was published, and despite the
rise of mechanized printing, errors actually increased because pirates kept reprint-
ing the same mistakes.
26. Elizabeth L. Eisenstein, The Printing Revolution in Early Modern Europe (Cam-
bridge: Cambridge University Press, 1993), 7378; Johns, Nature of the Book.
27. The surfeit of pirated texts would be repeated in early-nineteenth-century America
and Canada until the 1891 International Copyright Act (or the Chace Act) estab-
lished international agreements in forbidding unauthorized domestic publication
of foreign texts. Charles Dickens publicly pleaded with his American readers to
respect his publishing rights and, alongside Mark Twain, sought stronger agree-
ments to curb international infringements. See chapter 2, Mark Twain and the
History of Literary Copyright, in Siva Vaidhyanathan, Copyrights and Copywrongs:
The Rise of Intellectual Property and How It Threatens Creativity (New York: New
York University Press, 2003).
28. See chapter 2, The Biblical Feast and Allegorical Parody, and chapter 4, Liturgi-
cal Parody, in Martha Bayless, Parody in the Middle Ages: The Latin Tradition (Ann
Arbor: University of Michigan Press, 1997).
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29. Simon Dentith, Parody (New York: Taylor and Francis, 2007), 19.
30. Linda Hutcheon, A Theory of Parody: The Teachings of Twentieth-Century Art Forms
(Urbana: University of Illinois Press, 2000), 20.
31. M.M. Bakhtin, The Dialogic Imagination: Four Essays (Austin: University of Texas
Press, 1982), 309.
32. Ibid., 419.
33. Patterson, Copyright in Historical Perspective, 225.
34. Laura Murray, Plagiarism and Copyright Infringement: The Costs of Confusion,
in Originality, Imitation, and Plagiarism, ed. Caroline Eisner and Martha Vicinus
(Ann Arbor: University of Michigan Press, 2008), 174.
35. Nancy T. Baden provides a close look at the history of Brazilian censorship, par-
ticularly with respect to the role of the literary writer and intellectual, in The Muf-
fled Cries (Lanham, Md.: University Press of America, 1999), 8797.
36. Yochai Benkler, The Wealth of Networks: How Social Production Transforms Mar-
kets and Freedom (New Haven, Conn.: Yale University Press, 2006), 3.
37. Ibid.
38. Lisa Gitelman, Always Already New: Media, History, and the Data of Culture (Cam-
bridge, Mass.: MIT Press, 2008), 2.
39. See Starr, Creation of the Media.
40. James W. Carey, Communication as Culture: Essays on Media and Society (New
York: Routledge, 1989), 25.
41. Gitelman, Always Already New, 10.
42. That is not to say that culture of decentralization and openness cannot be manipu-
lated or countered with a similarly decentralized logic, as Alexander Galloway and
Eugene Thacker argue in their darkly poetic Protocol: Today network science often
conjures up the themes of anarchy, rhizomatics, distribution, and antiauthority to
explain interconnected systems of all kinds. Our task here is not to succumb to the
fantasy that any of these descriptors is a synonym for the apolitical or the disorga-
nized, but in fact to suggest the opposite, that rhizomatics and distribution signal
a new management style, a new physics of organization that is as real as pyramidal
hierarchy, corporate bureaucracy, representative democracy, sovereign fiat, or any
other principle of social and political control. Galloway and Thacker, Protocol: How
Control Exists after Decentralization (Cambridge, Mass.: MIT Press, 2006), 29. Once
invested powers have internalized and absorbed the logic of the rhizome, they argue,
it is only a matter of time before the ruptures brought forth by the network are
eventually overcome and another oppressive force exerts itself, more powerful
than ever before. While I acknowledge that there may be struggle and resistance by
extant powers, that is beside the point. Instead, I argue that the cultural ideal of the
network, rather than the material instantiation, is what drives its resilience and
subsequent valuation of open discourse.
43. Historical knowledge is a term I borrow from Alan Liu, The Laws of Cool: Knowl-
edge Work and the Culture of Information, 1st ed. (Chicago: University of Chicago
Press, 2004), 3067.
N O T E S T O I N T R O D U C T I O N 1 3 5
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44. Claude E. Shannon and Warren Weaver, Recent Contributions to the Mathemati-
cal Theory of Communication, in The Mathematical Theory of Communication
(Urbana: University of Illinois Press, 1963), 100.
45. Walter Benjamin, Illuminations: Essays and Reflections, 1st ed. (New York: Schocken,
1969), 8586.
46. Benjamins fear that information threatens the novel, however, falls short. His dark
vision of a literary culture devoid of storytelling arts borders on conservative polem-
ics. He misreads informations reflexive relationship with infrastructural distribu-
tion systems, spurred on by middle-class control and capitalism, as an anathema
to his Marxist sensibilities. In confusing the two, information with its distribution
system, Benjamin ends up dismissing both without bothering to specify which of
them he objects to. I would argue that Benjamin contends with informations dis-
tribution network rather than information itself, although the distribution system
is somewhat reflective of informations sensibilities. His argument that informa-
tion takes hold of the novel, and of storytelling, is not entirely accurate. I suggest
that it is rather the changes and alterations of the network of distribution that he
opposesfragmentation, specialization, and efficiency taking precedence over
the content that flows through its nodes.
47. Project Gutenberg has been quietly adding public domain texts to its digital archives
since 1971, and Sony, Barnes and Noble, and Amazon.com joined the e-book mar-
ket with their own proprietary digital text readers.
48. There are limitations, of course. While access to the Internet may be becoming
easier and more widespread, there are costs associated with creating a website.
Commercial websites hosted by corporate servers are one option, but that comes
at the cost of customizability and limited bandwidth. Different providers offer stag-
gered costs contingent on the number of hits and the amount of data transferred
per month, as well as domain name fees, and if a website serves a large enough
user base, costs may quickly rise. Still, compared to costs associated with print and
television or radio broadcasts, Internet broadcasts are still relatively affordable for
the average user.
49. This is not to say that the Internet is a free and open electronic utopia. If history is
any indication, despite the relative paucity in gatekeeping hurdles, the Internet
will become increasingly regulated, and noise will eventually come under a degree
of control. See Lawrence Lessig, Code: And Other Laws of Cyberspace, Version 2.0
(New York: Basic Books, 2006); see also Debora L. Spar, Ruling the Waves: From the
Compass to the Internet, a History of Business and Politics along the Technological
Frontier (New York: Mariner Books, 2003).
50. In Jean Baudrillards Requiem for the Media, he argues that media theory, sub-
sumed through the superstructure of material production, fails to account for
modes of communication, resulting in a media simulating and projecting revolu-
tions without actually changing anything in the modes of production. Thus all
media transmissions are necessarily static and unidirectional. In a reading in May
1968 in France, Baudrillard credits the true revolutionary media to be the transgres-
sive graffiti on the walls and speeches made, the hot active exchange that refused
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to engage the media on its own terms, but instead sought to create its own code of
exchange. Baudrillard, Requiem for the Media, in The New Media Reader, ed.
Noah Wardrip-Fruin and Nick Montfort, 27888 (Cambridge, Mass.: MIT Press,
2003); Baudrillard, For a Critique of the Political Economy of the Sign, 1st ed. (New
York: Telos Press, 1981).
51. Now, it may be that the disruption over distribution may not lastit might be
enfolded, sanitized, or coopted; in fact, that is more likely than not to occur. How-
ever, a complete dismantling of hierarchy and authority is not the objective of this
book. I instead concentrate on this moment of rupture as an opportunity to reveal
and investigate a mode of production that goes unacknowledged and devalued.
When the moment of rupture passes, I hope that the cultural conversation includes
a disruptive textuality so that its existence does not go ignored.
1. Dead Authors, Copyright Law, and Parodic Fictions

1. Two points regarding the freedom of speech should be made here. First, there are
limits to free speech. For example, a person cannot (falsely) shout fire in a crowded
theater or engage in libel, slander, or verbal assault. See Schenck v. United States,
249 U.S. 47 (1919); see also Brandenburg v. Ohio, 395 U.S. 444 (1969). Second, free-
dom of speech does not give an artist license to infringe on anothers intellectual
property rights. Instead, the 1976 Copyright Act codified the free speech clause of
the First Amendment with the fair use doctrine, allowing parodies to use portions
of another work for other purposes according to a four-point analytic framework.
In short, freedom of speech is not the issue; the definition of parody is.
2. See U.S. Const. art. I, 8, cl. 8. It should be clarified that the U.S. Constitution is
not inherently interested in the advancement of the useful arts and sciences at the
expense of individual creators. As L. Ray Patterson details, the statutory copyright
in the United States was based on years of desultory precedence. In the early his-
tory of American copyright, even the Supreme Court justices struggled to find con-
sistency within the law. See Wheaton v. Peters, 33 U.S. 591 (1834); see also Patterson,
Copyright in Historical Perspective, 21321.
3. Copyright expiration dates vary from country to country. In the United States, most
works published prior to 1923 are in the public domain, but specific dates of expi-
ration may be dependent on myriad details, including the country of origin or the
original publication date.
4. In The Reading Nation in the Romantic Period (Cambridge: Cambridge University
Press, 2007), William St. Clair argues that something similar occurred during the
romantic period due to copyrights influence on canonization at both popular and
institutional levels. St. Clair painstakingly outlines how, during a brief period when
copyright statutes were undergoing change because of legal wrestling between pub-
lishers and the state, a span of about twenty-five years saw numerous copyrights
expire and fall into the public domain, until it was closed again in 1808, when
publishers successfully campaigned to extend copyrights, with more extensions
following in 1814, 1838, and 1842. He writes, When it was first made available
during the brief copyright window, the old canon, although mainly the print of a
N O T E S T O C H A P T E R 1 1 3 7
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remoter past, also contained a proportion of works which had been written only a
few decades earlier. If the 1710 Act [limited copyright to fourteen years, renewable
for another fourteen] had continued in force, the old canon would have been con-
tinuously replenished, refreshed, and updated by works falling out of copyright.
However, when, after 1808, the brief copyright window came to an end, the num-
ber of titles coming out of copyright dropped sharply. As the publishers drove up
the price of new books to ever higher levels, the old canon, held fast within the ever
tightening economic constraints, stood unchanged, gaining in authority, falling in
price, gradually extending its penetration ever deeper and wider into the expanding
reading nation, but becoming more obsolete with every year (121). Furthermore,
open access to literary works previously protected by copyright allowed teaching
institutions to use abridged, edited, and anthologized works, in lieu of ecclesiasti-
cal works such as the Bible, as teaching tools. Ibid., 13539. Suddenly schoolchil-
dren were exposed to numerous English authors they would never have been able
to read before, aiding in the institutionalization of select authors in the English
canon. However, because the window closed in 1808, works coming after that point
remained excluded owing to high prices set by publishers looking to earn maxi-
mum profit.
5. See Elizabeth Eisenstein, The Printing Press as an Agent of Change (Cambridge:
Cambridge University Press, 1980). See also M.T. Clanchy, From Memory to Written
Record (Malden, Mass.: Blackwell, 1993).
6. I should point out that my discussion is necessarily restricted to Anglo-European
cultural reading practices.
7. See Clanchy, From Memory to Written Record.
8. This is a regrettably oversimplified overview of Elizabeth Eisensteins argument
that reading practices evolved gradually, rather than dramatically, with each incre-
mental step toward modern publishing practices from a solitary monk scribbling
manuscripts. She notes that a complicated web of interweaving cultural, techno-
logical, reading, and trade practices slowly altered the manner in which Europeans
consumed and processed information: Combinatory intellectual activity... inspires
many creative acts. Once old texts came together within the same study, diverse
systems of ideas and special disciplines could be combined. Increased output
directed at relatively stable markets, in short, created conditions that favored new
combinations of old ideas at first and then, later on, the creation of entirely new
systems of thought. Eisenstein, Printing Revolution in Early Modern Europe, 44.
My point here is that attitudes toward copyright and originality evolved similarly
via technological, cultural, and legal practices and that the modern intellectual
property structure should not be taken to be immutable.
9. Johns, Nature of the Book, 36.
10. Other famous literary thieves include Ben Jonson (accused by John Dryden in An
Essay of Dramatick Poesy, 1668), William Shakespeare (who took from Plutarch),
T.S. Eliot (who took from Madison Cawein, an obscure poet), Laurence Sterne (who
took from works by Swift, Burton, Bolingbroke, Rabelais, Montaigne, Erasmus, Scar-
ton, and Cervantes), Oscar Wilde (who took from works by Rossetti, Swinburne,
1 3 8 N O T E S T O C H A P T E R 1
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and Baudelaire), Samuel Coleridge (who took from works by Schlegel, Kant, Schelling,
and Brunn), and Mark Twain (who took from Oliver Wendell Holmes).
11. In early oral cultures, it would have been impractical to accuse someone of plagia-
rism when stories were handed down from generation to generation, from bard to
bard. With the advent of writing and print technologies, accusations of plagiarism
began to surface, and with the formation of copyright, piracy soon followed. It is
therefore necessary to distinguish plagiarism from piracy: plagiarism is usually the
borrowing of anothers ideas and passing them off as ones own, whereas piracy is
the wholesale copying and selling of a work without properly compensating the
original author. Siva Vaidhynathan argues that plagiarism was more a matter of
bad manners than an actionable violation. Vaidhyanathan, Copyrights and Copy-
wrongs, 6768.
12. Mark Twain and Shelley Fisher Fishkin, Speeches (1910) (London: Oxford Univer-
sity Press, 1997), 5758.
13. Fredric Jameson, Postmodernism and Consumer Society, in The Anti-Aesthetic:
Essays on Postmodern Culture, ed. Hal Foster (New York: New Press, 2002), 115.
14. Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World
(New York: Vintage, 2002), 9.
15. Complications over copyright protection wrought by the Internet have opened the
law to precisely these kinds of censoring activities. Lawrence Lessig outlines a few
examples, the most infamous of which is the case surrounding DeCSS. See ibid.,
18099; see also Electronic Frontier Foundation, Unintended Consequences: Seven
Years under the DMCA, April 2006, http://www.eff.org/IP/DMCA/DMCA_unintended
_v4.pdf.
16. Note the distinction between parody and satire. A parody targets the original work
as the subject of criticism, whereas a satire uses the work of another to attack a
third party, such as an unrelated public figure or an unpopular social policy.
17. Dentith, Parody, 28.
18. William M. Landes and Richard A. Posner, The Economic Structure of Intellectual
Property Law (Cambridge, Mass.: Belknap Press of Harvard University Press, 2003),
150.
19. It is also important to distinguish between parody and burlesque. A burlesque is a
humorous substitute for the original, whereas a parody stands complementary to
the original. A good rule of thumb in determining whether a work qualifies as a
parody or as a burlesque is the question of whether an audience needs to have
prior knowledge of the original work to understand the new work. For example,
viewers of the 1995 film Clueless would not need to have read Jane Austens Emma
to fully appreciate the film, from which the central plot was lifted. In that case, Clue-
less could work as a substitute to Emma. Ibid., 15558.
20. The Copyright Act revision in 1831 protected musical compositions. The 1870 revi-
sion expanded protection to apply to paintings, statues, and other works of fine art.
The 1909 Act doubled the term from fourteen years to twenty-eight years, renew-
able for another twenty-eight years. The 1976 Act protected unpublished works,
eliminated the formalities needed to register a copyright, and expanded protection
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terms to the life of the author plus fifty years, aligning the United States with inter-
national copyright standards. See William F. Patry, Copyright Law and Practice,
http://digital-law-online.info/patry/patry6.html.
21. The 1998 Copyright Term Extension Acts predecessor, the 1976 Copyright Act,
extended copyright to the life of the author plus fifty years. See http://www.copyright
.gov/title17/92preface.pdf.
22. Rose, Authors and Owners, 3.
23. Ibid., 103.
24. Patterson, Copyright in Historical Perspective, 225.
25. Ralph Blumenthal, Nabokov Son Files Suit to Block a Retold Lolita, New York
Times, October 10, 1998, late ed., B9.
26. Ralph Blumenthal, Disputed Lolita Spinoff Is Dropped by Publisher, New York
Times, November 7, 1998, late ed., B7.
27. After several false starts, Pera ultimately decided to waive her right to an afterword,
choosing instead to let the work speak for itself.
28. Michiko Kakutani, Humbert Would Swear This Isnt the Same Lolita, New York
Times, October 20, 1999, late ed., E7; Mim Udovitch, Lo. Lee. Ta., New York Times
Book Review, October 31, 1999, 31.
29. Blumenthal, Nabokov Son Files Suit to Block a Retold Lolita.
30. Peter Applebome, Pact Reached on U.S. Edition of Lolita Retelling, New York
Times, June 17, 1998, late ed., E1.
32. Ibid.
33. Martin Garbus, Lolita and the Lawyers, New York Times Book Review, September
26, 1999, 35.
35. Tellingly, neither Nabokovs nor Peras lawyers discuss the possibility of waiting
until the copyright expires to publish the book. By refusing even to consider this
scenario, they tacitly acknowledge that the copyright, in all practicality, will endure
in perpetuity.
36. It should be noted that Martin Garbus was hired by the Mitchell Trusts a few years
after defending Pia Pera. Though probably symptomatic of the nature of legal dis-
putes, the ease with which a copyright lawyer such as Garbus can switch philo-
sophical positions reflects the difficulty of clearly defining a grounded principle
in copyright law. There is room for a host of views in copyright law, with the stron-
gest of them usually dictated by the party with the most financial and institutional
resources.
37. Jonathan Levi, Lo, Dolly, Los Angeles Times, October 24, 1999, 6.
38. Kakutani, Humbert Would Swear This Isnt the Same Lolita.
39. The back cover reads, In Pia Peras Los Diary we have the true Lolita, the other
Lolita: malicious, stripped bare, ingenious, already able to grant her sexual favors
but undetermined about when to do so.... Now the perspective of the teenagers
psyche is brought into focus through the new feminist consciousness of the last 30
years. Pia Pera, Los Diary (London: Foxrock Books, 2001).
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40. Udovitch, Lo. Lee. Ta.
41. Ernest Machen, Lolita by Lamplight, Rivista Di Letterature 54, no. 2 (2001):
197209.
42. Vladimir Nabokov and Alfred Appel Jr., The Annotated Lolita: Revised and Updated
(New York: Vintage, 1991), 122.
43. Pera, Los Diary, 1.
44. Nabokov and Appel, Annotated Lolita, 5558.
45. Pera, Los Diary, 1023.
46. Ibid., 40.
47. Rita Felski points out that marking feminism solely by gender is fraught with com-
plications and ultimately specious. Felski, Literature after Feminism, 1st ed. (Chi-
cago: University of Chicago Press, 2003), 5794.
48. William Landes and Richard Posner write, A distinctive feature of parody that
complicates fair use analysis is that it doesnt always ridicule or otherwise criticize
the parodied work itself. Instead it may use that worktreating it as the standard
of excellenceto disparage something else, as when T.S. Eliot in The Waste Land
copied passages from St. Augustine, Dante, Shakespeare, Spenser, Marvell, and other
classic authors greatly admired by Eliot to show up by way of contrast what Eliot
believed to be the sordidness and spiritual emptiness of modern life. In other words,
the copied work used in the parody may be the weapon rather than the targetin
which event why should the owner of the original be reluctant to license the par-
ody, especially since it may very well draw favorable attention to the parodied work?
The weapon form of parody, which the cases tend to call satire, is illustrated by
a case in which the owner of the copyrights on the Dr. Seuss books brought suit
against the publisher of a book thatbizarrelynarrated the events of the murder
trial of O.J. Simpson in the style of Dr. Seuss. The plaintiff won. Landes and Posner,
Economic Structure of Intellectual Property Law, 152.
49. Dr. Seuss Enterprises, L.P. v. Penguin Books USA, Inc., 109 F.3d 1394 (9th Cir. 1997)
involved the owner of the Dr. Seuss copyrights suing the publisher of a book that
narrated the 1994 O. J. Simpson trial in Dr. Seusss distinctive style. The plaintiff
argued that The Cat NOT in the Hat! took substantially from Dr. Seusss trademarks
and diluted the brand. The courts agreed with the plaintiff after analyzing the case
through the four-point analysis from Campbell v. Acuff-Rose Music, Inc., 114 S. Ct.
1164, 1171 (1994).
50. D. Nabokov, foreword to Pera, Los Diary, ix.
51. Garbus, Lolita and the Lawyers, 35.
52. Michael Maar performs a closer reading of the short story to point out some more
subtle similarities between Lolita and Lolita. See The Two Lolitas (Verso Books,
2005) for a more in-depth analysis, which includes an English translation of Heinz
von Lichbergs short story.
53. Affidavit of Paul H. Anderson, Esq. in Support of Plaintiffs Motion for Temporary
Restraining Order and Preliminary Injunction at 3, Suntrust Bank v. Houghton Mifflin
Co. (Mar. 23, 2001), http://www.houghtonmifflinbooks.com/features/randall_url.
54. Ibid., 4.
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55. See Affidavit of Thomas Hal Clarke, Esq. in Support of Plaintiffs Motion for
Temporary Restraining Order and Preliminary Injunction at 3, Suntrust Bank v.
Houghton Mifflin Co. (Apr. 16, 2001), http://www.houghtonmifflinbooks.com/fea
tures/randall_url.
56. Ibid., 45.
57. Alice Randall, The Wind Done Gone: A Novel (New York: Mariner Books, 2002), v.
58. Ibid., 51.
59. Ibid.
60. Gayatri Chakravorty Spivak, Three Womens Texts and a Critique of Imperialism,
Critical Inquiry 12, no. 1 (1985): 251.
61. See e-mail from Pat Conroy to Joe Beck, attorney for Houghton Mifflin, at 3, Sun-
trust Bank v. Houghton Mifflin Co. (Apr. 11, 2001), http://www.houghtonmifflin
books.com/features/randall_url.
62. See Affidavit of Maura J. Wogan, Esq. in Support of Plaintiffs Motion for Temporary
Restraining Order and Preliminary Injunction, at 4, Suntrust Bank v. Houghton
Mifflin Co. (Mar. 23, 2001), http://www.houghtonmifflinbooks.com/features/ran
dall_url.
63. Suntrust Bank v. Houghton Mifflin Co., 136 F. Supp. 2d 1357, 1381 (N.D. Ga. 2001).
64. Suntrust Bank v. Houghton Mifflin Co., 252 F.3d 1165, 1166 (11th Cir. 2001).
65. David D. Kirkpatrick, Mitchell Estate Settles Gone with the Wind Suit, New York
Times, May 10, 2002, late ed., C6.
66. Randall won the Free Spirit Award and the Memphis Black Writers Conference Lit-
erature Award of Excellence and was a finalist for the NAACP Image Award for The
Wind Done Gone. See http://www.alicerandall.com/bio.
67. Michiko Kakutani, Within Its Genre, a Takeoff on Tara Gropes for a Place, New
York Times, May 5, 2001, late ed., B9.
68. Declaration of Toni Morrison in Support of the Defendant, at 3, Suntrust Bank v.
Houghton Mifflin Co. (Apr. 15, 2001), http://www.houghtonmifflinbooks.com/fea
tures/randall_url.
69. Declaration of Henry Louis Gates, Jr., at 2, Suntrust Bank v. Houghton Mifflin Co.
(Jan. 3, 2001), http://www.houghtonmifflinbooks.com/features/randall_url.
70. The following authors, artists, and academics are among those who signed a docu-
ment outlining their support for Randall: Harper Lee, Arthur M. Schlesinger Jr.,
Shelby Foote, Charles R. Johnson, John Berendt, Nell Painter, John Egerton, Ward
Just, Steve Earle, Ben H. Bagdikian, Catherine Clinton, Robert A. Brown, Adam
Hochschild, Reginald Hudlin, A. Yvette Huginnie, Linda Hutcheon, Nick Koltz,
Michael Kreyling, Lucius T. Outlaw, and Andrea Y. Simpson. See Declaration of
Anton Mueller, Suntrust v. Houghton Mifflin (Apr. 11, 2001), http://www.hough
tonmifflinbooks.com/features/randall_url.
71. Letter on behalf of Amici Curiae The New York Times Company, et. al. concerning
Cable News Network v. Video Monitoring Services, at 4, Suntrust Bank v. Houghton
Mifflin Co. (May 23, 2001), http://www.houghtonmifflinbooks.com/features/ran
dall_url.
72. 17 U.S.C. 107 (1976).
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73. Affidavit of Louis D. Rubin, Jr. in Support of Plaintiffs Motion for a Temporary
Restraining Order and Preliminary Injunction, at 4, Suntrust Bank v. Houghton Mif-
flin Co. (Apr. 10, 2001), http://www.houghtonmifflinbooks.com/features/randall_url.
74. Ibid.
75. Affidavit of Alan Lelchuck in Support of Plaintiffs Motion for a Temporary Restrain-
ing Order and Preliminary Injunction, at 2, Suntrust Bank v. Houghton Mifflin Co.
(Apr. 2001), http://www.houghtonmifflinbooks.com/features/randall_url.
76. Affidavit of Gabriel Motola in Support of Plaintiffs Motion for a Temporary Restrain-
(Apr. 6, 2001), http://www.houghtonmifflinbooks.com/features/randall_url.
77. Affidavit of Joel Conarroe in Support of Plaintiffs Motion for a Temporary Restrain-
(Apr. 11, 2001), http://www.houghtonmifflinbooks.com/features/randall_url.
78. See Affidavit of Jessie Beeber, Esq. in Support of Plaintiffs Motion for Temporary
Restraining Order and Preliminary Injunction, Suntrust Bank v. Houghton Mifflin
Co. (Mar. 23, 2001), http://www.houghtonmifflinbooks.com/features/randall_url.
79. Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 126869 (11th Cir. 2001).
80. [Suntrust] has failed to show, at least at this early juncture in the case, how the
publication of TWDG, a work that may have little to no appeal to the fans of GWTW
who comprise the logical market for its authorized derivative works, will cause it
irreparable injury. Ibid., 1276.
81. On a related note, authors have sought to control scholarship regarding their un-
published works through claims of copyright for many years. Contemporary exam-
ples of writers censoring others (usually biographers) include Salinger v. Random
House, Inc., 811 F.2d 90 (2d Cir. 1987), Wright v. Warner Books, 953 F.2d 731 (2d Cir.
1991), and Norse v. Henry Holt & Co., 991 F.2d 563 (9th Cir. 1993), in which authors
or author estates sued for the use of their unpublished works. Precedent was
famously established by Pope v. Curll (1741) in Englands Chancery Court. Alexan-
der Pope sued Edmund Curll for the use of his unpublished letters, with the court
ruling in favor of the plaintiff. This marked the point where copyright detached
from the material object and alighted on the authors immaterial signs. Rose, Authors
and Owners, 5965.
82. Paul Zukofsky, Copyright Notice by PZ, Z-site: A Companion to the Works of Louis
Zukofsky, http://www.z-site.net/copyright-notice-by-pz/.
83. Jonathan Bate, Fair Enough?, Times Literary Supplement, no. 5601 (August 6,
2010): 15.
84. Paul K. Saint-Amour, The Copywrights: Intellectual Property and the Literary Imagi-
nation, 1st ed. (Ithaca, N.Y.: Cornell University Press, 2003), 211.
2. How Japanese Fan Fiction Beat the Lawyers

1. The term otaku originates from o-taku, which literally translates to ones home
or indicates a person who belongs to an ingroup and can be used as a formal term
of address. Otaku began to take on its current connotation of nerd when, in the
early 1980s, it was observed that a certain type of young male would choose to stay
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indoors in his home (o-taku) and focus on video games, software, computers, elec-
tronics, manga, and so on, instead of venturing outdoors.
2. Bakhtin, Dialogic Imagination, 421.
3. There may be merit in an argument that do
jinshi or fan fiction competes with a
future or as-of-yet unwritten sequel. That is essentially the argument that the
Mitchell Estates made in requesting an injunction against Alice Randalls The Wind
Done Gone. Because the Mitchell Estates had already published one official sequel
(Scarlett) and were in the planning stages of a second sequel, it is understandable
that some might have been concerned that The Wind Done Gone may have con-
fused some readers. But that argument falls short when one considers that extra-
legal texts function on a completely different channel and have a severely limited
distribution range. Furthermore, extralegal texts refrain from explicitly claiming
canonicity and often diverge into wildly different directions contrary to what most
would consider canonical.
4. Anne Rice, Annes Messages to Fans, http://www.annerice.com/ReaderInterac
tion-MessagesToFans.html.
5. Sheenagh Pugh, The Democratic Genre: Fan Fiction in a Literary Context (Bridgend,
Wales: Seren, 2005), 45.
6. Rice is appealing to a sensibility that is alien to U.S. copyright lawmoral rights.
However, in the Continental European and Canadian traditions of intellectual prop-
erty, moral rights are included in legal statute as part of a bundle of rights imparted
on the author. Moral rights mainly function as a means to protect the authors right
to see that his creation is portrayed in a manner that the author originally intended
or explicitly approves. The U.S. tradition does not formally include moral rights.
7. There are exceptions to this rule, as a few popular fan fiction authors have found
themselves being offered book contracts, such as E.L. Jamess Fifty Shades of Grey,
which began as an erotic fan fiction based on Stephanie Meyerss young adult Twi-
light series.
8. In general, fan fiction repository disclaimers clearly delineate their contributions
from the original sources or authors, explicitly declare that they make no financial
gains from their work, and give credit to the original author.
9. I admit that this may be in part due to the text-based form, which is less visually
inclined or concerned with aesthetics.
10. Gen (stories suitable for a general audience; no sexually explicit scenes, hetero-
sexual or otherwise); slash (homosexual); OTP (tales in which two characters seem
made for each other); H/c (hurt/comfort) (a story in which one character has been
physically or emotionally injured and receives consolation from another); mpreg
(male pregnancy); episode fix; missing scene; AU (a story that deliberately departs
from canon); fluff; PWP (a scene in which the characters engage without the fram-
ing of a plot, most often in a sexually explicit encounter); Mary Sue/Marty Stu (a
story into whose narrative the writer inserts herself, in idealized form).
11. Anne Jamison is more blunt: I call it [fan fiction] writing. Opponents call it
stealingand I call that bullshit. Jamison, Fic: Why Fanfiction Is Taking Over the
World (Dallas, Tex.: Smart Pop, 2013), 17.
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12. Henry Jenkins, Textual Poachers: Television Fans and Participatory Culture (New
York: Routledge, 1992), 2324.
13. Ibid., 26.
14. See Constance Penley, Brownian Motion: Women, Tactics, and Technology, in Tech-
noculture, ed. Andrew Ross (Minneapolis: University of Minnesota Press, 1991), 135
61, in which she discusses fan fiction centering on Captain KirkSpock pairings.
15. See Camille Bacon-Smith, Enterprising Women: Television Fandom and the Cre-
ation of Popular Myth (Philadelphia: University of Pennsylvania Press, 1992).
16. Jonathan Gray, Cornel Sandvoss, and C. Lee Harrington, eds., Fandom: Identities
and Communities in a Mediated World (New York: New York University Press,
2007), 45.
17. Ibid., 6.
18. Ibid., 10.
19. Ibid., 30.
20. Ibid., 23.
21. Abigail Derecho, Archontic Literature: A Definition, a History, and Several Theo-
ries of Fan Fiction, in Fan Fiction and Fan Communities in the Age of the Internet:
New Essays, ed. Karen Hellekson and Kristina Busse (Jefferson, N.C.: McFarland,
2006), 72.
22. Greg Toppo, Harry Potter Author: Dumbledore Is Gay, USA Today, http://www
.usatoday.com/life/books/20071020-potter-dumbledore_N.htm.
23. John Whittier Treat, Yoshimoto Banana Writes Home: Shojo Culture and the Nos-
talgic Subject, Journal of Japanese Studies 19, no. 2 (1993): 359.
24. Shuppan Geppo
(Publishing Monthly), Shuppan Kagaku Kenkyusho (Research
Institute for Publishing), http://www.ajpea.or.jp/.
25. Furthermore, several other factors assist in mangas pervasive reach. First, there is
a strong secondhand market for manga. Many used bookstores, such as the ubiq-
uitous Book Off chain, generally devote the first floor solely to tightly packed shelves
brimming with manga and relegate print novels upstairs to the second floor. The
first floor is generally filled with young male students browsing and reading manga
or office workers stopping by on the commute home; the second floor enjoys a more
mature audience. Second, in crowded metropolitan areas, public space is at such
a premium that any place selling reading materials functions as a de facto public
library. During the scorching Tokyo summers, I often joined others in browsing the
stacks of magazines and manga at the nearest twenty-four-hour convenience store
(konbini), ostensibly to read but mostly to cool off before embarking on another
leg of a walk beneath the Tokyo sun.
26. See chapter 1, A Short History of Manga, in Sharon Kinsella, Adult Manga: Cul-
ture and Power in Contemporary Japanese Society (New York: RoutledgeCurzon,
2000).
27. Although modern manga came into existence only recently, there is some dissent
to the idea that manga has roots in Japanese aesthetics. Even manga scholars who
consider the art form a distinctively Japanese tradition acknowledge that the more
familiar conventions came into being only after Japan was forced open to trade by
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Commodore Perry in 1853, leading to a confluence between Western and Eastern
artistic influences. Interested parties seeking to contextualize manga as a part of
Japanese tradition point to precursors in the twelfth-century works of Bishop Toba
(Toba-e), who drew contiguous scenes of anthropomorphized animals, and eigh-
teenth-and nineteenth-century wood block prints (ukiyo-e) depicting single panel
narratives. Manga historian Frederick Schodt speculates that the Japanese lan-
guage, which uses Chinese ideograms, may have preconditioned Japanese readers
into accepting image and text as a communication channel. He notes, Over fifty
years ago, Sergei Eisenstein, the Russian filmmaker, perceived a link between the
ideogram and what he called the inherently cinematic nature of much of Japanese
culture. The process of combining several pictographs to express complex thoughts,
he said, was a form of montage that influenced all Japanese arts, and he added that
his own studies of ideograms had helped him understand the principle of montage
on which filmmaking is based. Schodt, Manga! Manga! The World of Japanese
Comics, 3rd printing, updated paperback ed. (Tokyo: Kodansha, 1988), 25. Sharon
Kinsella takes issue with these cultural generalizations, arguing instead that manga
is a distinctly modern phenomenon external to what she sees as Orientalization by
Western scholars trapped in old modes of inquiry. My own contribution to this
argument would be that mangas popularity may in part be a response to wide-
spread literacy education and an ideograph-based language. With four sets of
alphabets, the Japanese language can be difficult to traverse because it requires a
rote-based practice to memorize kanji. In some regards, manga iconography is a
useful tool for rapidly conveying information to a readership because it reduces
dependence on a knowledge of kanji. Many schoolchildren may not recognize the
majority of kanji littered throughout various advertisements or warning signs, but
the narrative depiction through manga may ease the transmission of information.
28. I use the Western names of Osamu Tezukas creations instead of the transliteration
of the original titles for the sake of familiarity. The transliteration of Astro Boys
original Japanese title would be Ambassador Atom (Atomu Taishi) and Mighty
Atom (Tetsuwan Atomu). Kimba, the White Lions original Japanese title would be
Jungle Emperor (Janguru Taitei). These were two highly influential creations that
crossed over to the West as animated series in the 1960s, and there was some con-
troversy in the mid-1990s when Disneys The Lion King was accused of using the
likeness of Kimba without giving Tezuka proper credit.
29. Kinsella, Adult Manga, 3.
30. Scott McCloud has a similar argument likening American comics (sequential art)
to a medium in his groundbreaking Understanding Comics (New York: Harper,
1994). In particular, the first chapter of Understanding Comics spends considerable
space parsing the differences between comics as a style and comic books as a
medium of expression, arguing that the comic medium, or, as he prefers to use the
term, sequential art, has existed for several centuries (his earliest example is the
Egyptian mural Menna, from 1300 bc), with the modern incarnation appearing in
mass print as early as 1919 (Frank Masereel, Passionate Journey), preceded by nar-
rative etchings such as William Hogarths A Harlots Progress (1731).
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31. For a historical overview of do
jinshi and Comiket, see Fan-Yi Lam, Comic Market:
How the Worlds Biggest Amateur Comic Fair Shaped Japanese Do
jinshi Culture,
Mechademia 5, no. 1 (2010): 23248.
32. That is not to say that all do
jinshi infringe on the intellectual property rights of estab-
lished authors. Many genres of do
jinshi use completely original characters and
universes, but for the purposes of this essay, I will use do
jinshi as a shorthand for
unsanctioned renditions.
33. Frederik Schodt, Dreamland Japan: Writings on Modern Manga (Berkeley: Stone
Bridge Press, 1996), 37.
34. Ibid., 38.
35. Yoshihiro Yonezawa, Manga to Chosakuken: Parodei to Inyo
to do
jinshi [Manga
and copyright: Parody, permission, and amateur comics] (Tokyo: Seirin Ko
geisha,
2001), 6.
36. Kazuko Suzuki, Pornography or Therapy? Japanese Girls Creating the Yaoi Phenom-
enon, in Millennium Girls, ed. Sherrie A. Inness (New York: Roman and Littlefield,
1998), 244.
37. Seemingly unaware of Suzukis work, Kumiko Saito argues similarly, relabeling yaoi
as sho
nenai (boys love) to reflect the genres marketability and mainstream inte-
gration by popular manga titles. Saito complicates the gender politics of sho
nenai,
arguing that it is a product and reflection of a particular class of female Japanese
cultural production that does not necessarily run counter to gender normsin
fact, heteronormalizing homophobia may be paradoxically replicated and rein-
forced in sho
nenai. See Kumiko Saito, Desire in Subtext: Gender, Fandom, and
Womens Male-Male Homoerotic Parodies in Contemporary Japan, Mechademia
6, no. 1 (2011): 17191.
38. Yaoi and do
jinshi are not interchangeable terms. Though in the context of this
essay I refer to do
jinshi in reference to fan fiction, do
jinshi is actually a much more
general term, meaning a group of like-minded magazines. So whereas all yaoi
writers can be considered do
jinshi, not all do
jinshi are yaoi. Furthermore, yaoi
authors do not necessarily use popular culture or established characters in their
work. Even within yaoi, there are different subgenres of gay love stories.
39. Kinsella writes, Large publishing companies ceased to systematically produce radi-
cal and stylistically innovatory manga series around 1972, because they no longer
matched sufficiently closely the changed interests of their mass audiences. Younger
manga artists and fans interested in developing the manga medium in directions
other than those dictated by manga publishers, were forced to turn to amateur
production as an alternative outlet for unpublishable material. The amateur manga
medium rapidly developed an internal momentum, partially independent of devel-
opments in commercial manga publishing. Kinsella, Adult Manga, 106.
tsuka, World and Variation: The Reproduction and Consumption of Narra-
40. Eiji O
tive, trans. Marc Steinberg, Mechademia 5, no. 1 (2010): 1078.
41. Marc Steinberg, Animes Media Mix: Franchising Toys and Characters in Japan
(Minneapolis: University of Minnesota Press, 2012), 179.
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42. Rebecca Tushnet, Copyright Law, Fan Practices, and the Rights of the Author,
in Fandom: Identities and Communities in a Mediated World, ed. Jonathan Gray,
Cornel Sandvoss, and C. Lee Harrington (New York: New York University Press,
2007), 61.
43. Salil Mehra, Copyright and Comics in Japan: Does Law Explain Why All the Car-
toons My Kid Watches Are Japanese Imports?, Rutgers Law Review 55, no. 1 (2002):
16566.
44. Similar arguments are made for the practice of fansubbing, in which fans trans-
late popular anime from Japanese into other languages long before they are imported
from Japan through legal channels. Sean Kirkpatrick details how fansubbing and
looser interpretations of copyright law may benefit content industries. See Sean
Kirkpatrick, Like Holding a Bird: What the Prevalence of Fansubbing Can Teach Us
about the Use of Strategic Selective Copyright Enforcement, Temple Environmen-
tal Law and Technology Journal 21 (2003): 13153.
45. The relative modesty of scholarly material on do
jinshi might be due to several fac-
tors. For one, it has only been in recent years that do
jinshi has come under scrutiny
as Japanese manga and anime have gained in popularity abroad. Despite fairly
clear copyright laws, most people were unaware that do
jinshi was considered an
illicit activity. Note that it was not until 1999 that do
jinshi was framed as an act of
copyright violationmany people participating had no idea that do
jinshi was
frowned upon. In the first recorded case of a do
jinshi artists arrest, the Pokmon
Incident (pokmon jiken), the artist seemed genuinely baffled by the fact that the
law considered her to be a criminal (hanin). The artist, who was female, was charged
with copyright infringement for producing a do
jinshi depicting the Pokmon char-
acters in a pornographic narrative. After many years of relatively unperturbed
operations, the do
jinshi world suddenly faced real-world consequences. Yonezawa
Yoshiro notes, Until then, there had been rumors floating about that certain paro-
dies had angered such-and-such artist and was disavowed, or that a reprint had
been accused of piracy; however, the unprecedented Pokmon Incident, in which
a do
jinshi artist was arrested, came as quite a shock to the do
jinshi world. Yone-
zawa, Manga to Chosakuken, 137. So, until 1999, it was not known whether cre-
ators actually forbade do
jinshi artists from pilfering their works, and according to
media sources, the artists reaction was mostly shock that their actions were con-
sidered a crime.
Furthermore, because do
jinshi is considered a lower art form, mainstream art-
ists, editors, publishers, and scholars actively try to distance themselves from the
practice. Some of this can be credited to negative publicity surrounding the mur-
der of several young adolescent girls by a twenty-six-year-old otaku named Tsu-
tomu Miyazaki, who was discovered to have a fondness for the lolikon brand of
do
jinshi. Treat, Yoshimoto Banana Writes Home, 35455. A sensationalist media
fallout led to stricter regulation and an industry-wide ostracizing of do
jinshi artists
and fans. Moreover, though I hesitate to make sweeping generalizations, the serious
study of manga, let alone do
jinshi, remains a fringe attraction for many partly due
to the mediums youth. (Only one Japanese institute of higher learning officially
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institutionalizes manga as a subject of academic study. Kyoto Seika University, a
small school specializing in the arts and humanities, was the first to open a Manga
Studies department, in 2006. According to the departments website, the school
offers courses in cartoon art, manga writing, animation, and manga production;
http://www.kyoto-seika.ac.jp/edu/manga/). Only with increased, largely negative
attention has do
jinshi recently entered the publics consciousness.
46. Yonezawa, Manga to Chosakuken, 20. Translation mine throughout.
47. I use the word canon to indicate the chosen popular artifact at the time, not a peren-
nial, immutable text. The object will come and go.
48. Erlich, Russian Formalism, 268.
49. Bakhtin, Dialogic Imagination, 366.
50. Cohen, Literature and History, 14.
51. Indeed, in comparison to the United States (281 per 100,000), the number of law-
yers in Japan is quite low (11 in 100,000). Consequently, most lawyers are in high
demand and overworked, with little time for what may be considered frivolous
lawsuits. While law school is not required to pass the bar exam and law is a popular
subject of study at many Japanese universities, as a result of national policy, the
bar exam is notoriously difficult to pass (2 to 3 percent pass rate). It is not unheard
of for a would-be lawyer (bengoshi) to spend more than a decade in professional
limbo studying at cafs or private study halls trying to pass the exam. The legal
education system has recently undergone an American-style reform with a num-
ber of top-tier universities establishing formal law schools and increasing the pass
rate of the bar exam, so the number of lawyers should soon increase; what reper-
cussions this may have on do
jinshi and Japanese society at large remains to be
seen. See Lawrence Lessig, Free Culture: How Big Media Uses Technology and the
Law to Lock Down Culture and Control Creativity (New York: Penguin Press, 2004),
6; see also Mehra, Copyright and Comics in Japan, 17989.
52. Another important distinction from American copyright law is the tradition Japanese
copyright law is based on. There are two traditions of copyright law: the Anglo-
American approach, which emphasizes the immaterial properties of works and
protection from unauthorized commercial exploitation, and the Continental Euro-
pean approach, which works to protect the creator and her moral rights. Frances,
Germanys, and Japans copyright laws hail from the Continental European approach,
whereas American and English copyright has its roots in the Anglo-American tradi-
tion. See Peter Ganea, Japanese Copyright Law: Writings in Honour of Gerhard
Schricker (The Hague: Kluwer Law International, 2005), 11, 58, 12223.
53. Yonezawa, Manga to Chosakuken, 79.
54. Ibid., 90.
55. CLAMP has since transitioned into professional work.
56. Brian Larkin, Degraded Images, Distorted Sounds: Nigerian Video and the Infra-
structure of Piracy, Public Culture 16, no. 2 (2004): 291.
57. Jenkins writes, The political effects of these fan communities come not simply
through the production and circulation of new ideas (the critical reading of favorite
umpRoh.indd 149 27/10/2015 3:10:26 PM

texts) but also through access to new social structures (collective intelligence) and
new models of cultural production (participatory culture). Jenkins, Textual Poach-
ers, 257.
58. Mehra, Copyright and Comics in Japan, 195.
59. Ibid., 19596.
60. In general, copyright infringement cases are considered civil matters brought to
the attention of the court by an aggrieved party. If a copyright infringement matter
is particularly large scale or involves an elaborate organization, it may be brought
to the Department of Justice to be pursued on a federal level.
61. This would not be entirely new, as extralegal texts tend to gravitate to new media
technologies: Often, what is new in the history of fanfictionas in the history of
writing itselfcomes down to writings relationship to technology and media. New
technologies enable new and different kinds of stories to be toldand readby
different kinds of people. Jamison, Fic, 18.
62. Jamison situates E.L. Jamess novel as part of a long tradition of postmodern
appropriation. Ibid., 356.
3. The Open-Source Model

1. Albert B. Lord, The Singer of Tales, 2nd ed. (Cambridge, Mass.: Harvard University
Press, 2000), 26.
2. Ibid., 1517.
3. In The Text and the Voice, Paul Zumthor and Marilyn C. Engelhardt offer numer-
ous objections to Albert Lords formula for analyzing oral poetics but generally
seem to agree with the notion of a distributed, or shared, notion of ownership of a
text in contrast to a singular author. See Zumthor and Engelhardt, The Text and
the Voice, New Literary History 16, no. 1 (1984): 7778.
4. Lord, Singer of Tales, 100102. Copying is perhaps the wrong word, for tales
would not be retold with perfect fidelity. And the work may not have gone through
material degradation, such as a well-word magnetic tape; it may have actually
improved, depending on the skill of the performer.
5. Medieval scholars studying the mechanics of orality offer fascinating, sometimes
contentious insights on cultural development and transmission of oral culture. See
Lord, Singer of Tales; Walter J. Ong, Orality and Literacy, 2nd ed. (New York: Rout-
ledge, 2002); Zumthor and Engelhardt, The Text and the Voice.
6. I simplify, of course, the trajectory of prints verticality to our contemporary under-
standing of fiction and nonfiction publications. This is by no means an essentialist
trait of printRobert Darnton notes the existence of an early version of a free-
flowing information network, the eighteenth-century Republic of Letters. The
eighteenth century imagined the Republic of Letters as a realm with no police, no
boundaries, and no inequalities other than those determined by talent. Anyone
could join it by exercising the two main attributes of citizenship, writing and read-
ing. Writers formulated ideas, and readers judged them. Thanks to the power of the
printed word, the judgments spread in widening circles, and the strongest arguments
won. Darnton, The Case for Books: Past, Present, and Future (New York: Public
umpRoh.indd 150 27/10/2015 3:10:26 PM

Affairs, 2010), 4. But even Darnton recognizes that this network was not without its
barriersits participants were limited to wealthy, educated, white men. My point
is that a confluence of factors over time has led to prints verticality, something that
Darnton goes on to recognize. In his work, he attributes the shift to literatures sub-
limation to a Bourdieun power field that has led to the silofication of knowledge.
7. I should address a potential counterargument. Though the idea of a network is not
necessarily revolutionary or newit existed before on a smaller scalenever before
has it achieved ubiquity, scale, and speed. I am not arguing that the digital networks
horizontal structure is anything particularly revolutionary; in fact, I have just argued
that the same structure existed in premodern England hundreds of years ago. It
just so happens that the key elements I have singled out have found a home in the
digital network as it exists nowthanks in large part to a confluence of constitutive
decisions, individual and institutional; physical circumstances; and chance.
8. Furthermore, culture emerges and is absorbed at terminal points, where another
set of physical and political qualities determines viscosity; each terminal comes
with its own limitations and affordances. The oral tale depends not only on war-
bling vocal chords and tinny ear drums but also on acoustics and competing back-
ground noise; the literary work travels through the printed book, which has weight
and cannot be replicated without nontrivial effort; and the electronic -lexia have
little weight but require a vast, physical infrastructure for their transportation and
expensive equipment for consumption.
9. These kinds of responses differ from the sanitized or subversive avenues articu-
lated by Stuart Hall and Jean Baudrillard, who were more concerned with owner-
ship of media infrastructure and the shaping of audience participationin line
with the Frankfurt Schools concerns over structural determinism. See Baudrillard,
Requiem for the Media; see also Stuart Hall, Encoding/Decoding, in The Cul-
tural Studies Reader, ed. Simon During, 90103 (New York: Routledge, 1999).
10. Fredric Jameson, Postmodernism, or, The Cultural Logic of Late Capitalism (Dur-
ham, N.C.: Duke University Press, 1990), 44, emphasis mine.
11. Gilles Deleuze, Thousand Plateaus: Capitalism and Schizophrenia, 1st ed. (Minne-
apolis: University of Minnesota Press, 1987), 611.
12. Michael Hardt and Antonio Negri, Empire (Cambridge, Mass.: Harvard University
Press, 2001), 321; Michael Hardt and Antonio Negri, Multitude: War and Democ-
racy in the Age of Empire (New York: Penguin Books, 2005), xixviii.
13. Mark Poster, The Information Empire, Comparative Literature Studies 41, no. 3
(2004): 31819.
14. Rita Raley, eEmpires, Cultural Critique 57 (2004): 132.
15. Manuel Castells, The Rise of the Network Society (The Information Age: Economy,
Society and Culture, Volume 1), 2nd ed. (Oxford: Wiley-Blackwell, 2000), 125.
16. Alexander R. Galloway and Eugene Thacker, The Exploit: A Theory of Networks (Min-
neapolis: University of Minnesota Press, 2007), 29.
17. I share their concern. There is no reason that the extant late capitalistic superstruc-
ture will not adapt accordingly to employ the same language and methods (i.e., viral
advertising) to exploit network architecture to augment the culture industry project.
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18. An easy conceptualization is to think of an electric grid; TCP/IP constitutes the
grid, where external application protocols can plug in, protocols such as HTTP
(Hypertext Transport Protocol), SMTP (Simple Mail Transport Protocol), and FTP
(File Transport Protocol).
19. Alexander R. Galloway warns that protocol could be used as a managerial arm for
control: What is wrong with protocol? To steal a line from Foucault, its not that
protocol is bad but that protocol is dangerous. To refuse protocol, then, is not so
much to reject todays technologies as did Theodore Kaczynski (the Unabomber),
but to direct these protocological technologies, whose distributed structure is em-
powering indeed, toward what Hans Magnus Enzensberger calls an emancipated
media created by active social actors rather than passive users. Galloway, Proto-
col: How Control Exists after Decentralization (Cambridge, Mass.: MIT Press, 2006),
16. Indeed, even a cursory glance at the history of Internet protocol shows that
its openness results from conscious design and policy rather than an essentialist
democracyGalloways admonishment echoes much of Lessigs alarmist Code.
20. For an exhaustive look at the formation of the Internet, see Janet Abbate, Inventing
the Internet, 1st ed. (Cambridge, Mass.: MIT Press, 1999).
21. We can reconcile these two narratives with the notion of what Paul Starr has termed
constitutive choices. Starr, The Creation of the Media: Political Origins of Modern
Communications (New York: Basic Books, 2004), 13. That is, instead of adhering
to a binary of technological determinism or social construction, we can reframe
technology as the headpiece of other formative structures
politics, cultural
trends, and so on. Starr argues that modern communications developments are
predicted on those that create the material and institutional framework of fields of
human activity. The complexity and scale of social institutions and technical sys-
tems are simply too taxing to easily fit under the rubric of a singular vision or
design; however, there are certain crucial moments in which ideas and culture,
power structures, preexisting institutional legacies, and models from other coun-
tries come into play and strongly influence the direction of a particular communi-
cations system.
22. Manuel Castells, The Internet Galaxy: Reflections on the Internet, Business, and Soci-
ety (New York: Oxford University Press, 2003), 36.
23. Ibid., 23.
24. Ibid., 42.
25. See Barthes, Image-Music-Text ; see also Foucault, What Is an Author?
26. A somewhat simplistic statement, for the Internet is made of several layers and pro-
tocols, including HTTP, POP, FTP, and IRC, to name a few.
27. M. E. J. Newman, The Structure and Function of Complex Networks, SIAM Review
45, no. 2 (June 2003): 213.
28. There are instances of restricted hotlinking. Some websites will ask that their files
not be hotlinked by others because of the considerable bandwidth used if enough
others pull from a single server. These are mostly image files, which are much larger
in size than text files.
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29. Restrictive barriers would have created isolated, fractured interwebs, creating a
hierarchical system that would be restrictive rather than open. Only those with the
means would have access to certain vertices with a high number of edges.
30. This condition is not inherent to the network itself. In The Internet Galaxy, Cas-
tells is careful to distinguish between the ideologically neutral network and the
libertarian-leaning Internet, which he contends is a paradigmatic technological
manifestation of the network structure. The network itself can take on character-
istics of the local colorregardless of whether it is positive or negative. He writes,
The Internet networks provide global, free communication that becomes essen-
tial for everything. But the infrastructure of the networks can be owned, access to
them can be controlled, and their uses can be biased, if not monopolized, by com-
mercial, ideological and political interests. As the Internet becomes the pervasive
infrastructure of our lives, who owns and controls access to this infrastructure
becomes an essential battle for freedom (277).
31. R. M. Liuzza, ed., Old English Literature: Critical Essays (New Haven, Conn.: Yale
University Press, 2002), 2.
32. Michael T. Clanchy, From Memory to Written Record: England 10661307, 2nd ed.
(Oxford: Wiley-Blackwell, 1993), 13.
33. An accessible terminal is still subject to larger social and political power structures
those structures must support and invest in its horizontality for it to truly qualify
as such. In Poetry and the Police, Robert Darnton argues as much when he traces
the distribution of several seditious poems through eighteenth-century France. In
the limited sphere of literate and semiliterate France, Darnton shows how a rela-
tively portable formthe poemcan still be prosecuted through an informal oral
and print network by the state. Darnton, Poetry and the Police: Communication
Networks in Eighteenth-Century Paris, 1st ed. (Cambridge, Mass.: Belknap Press of
Harvard University Press, 2010), 3.
34. Gerard Genette, Introduction to the Paratext, New Literary History 22, no. 2
(1991): 26172.
35. In Preface to Plato, Eric Havelock describes the transition from a Homeric (primarily
oral) to a Platonic state of mind. The externalization of knowledge in lieu of mime-
sis allowed the Greeks to waken from their slumber induced by the paideutic spell
a trancelike condition wrought by oral poetry. Creating an object of knowledge
through writing would allow the subject to view the object in a rational and analyti-
cal way, the hallmark of Platos mode of philosophical study. Havelock, Preface to
Plato (Cambridge, Mass.: Belknap Press of Harvard University Press, 1982), 198200.
36. That is, after a long period of incremental, evolutionary progress. M.T. Clanchy
details how the advent of more affordable writing tools and parchment did not
occur overnight, nor did cultural attitudes regarding literacy necessarily develop at
an equivalent pace. Clanchy, From Memory to Written Record, 11415.
37. That the modern housing of texts is not discriminatory is a matter of contempo-
rary choice. A manuscript may be designed with a locking mechanism denying
access to prying eyes, such as a journal or diary. And this does not address the
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storage location of booksprivate libraries can deny access based on privilege and
membership.
38. Steward Brand narrates just how cumbersome and valuable time on a mainframe
computer was for MIT students in the early days of computing. See Stewart Brand,
Spacewar: Fanatic Life and Symbolic Death among the Computer Bums, Rolling
Stone, December 7, 1972, http://www.wheels.org/spacewar/stone/rolling_stone.html.
39. Projects such as Nicholas Negropontes One Laptop per Child aspire to grant mass
access to computers in an effort to empower students who may otherwise be left
behind due to global disparities in income and infrastructure. There are, of course,
countertrends that threaten to undermine access, particularly in advanced capi-
talistic economies. Some terminals remain stubbornly closed or have policies dis-
couraging experimentation. Apple products in particular are designed to be difficult
to open to replace obsolete parts (RAM, hard drives, etc.); opening any device auto-
matically voids the manufacturers warranty, and there has been a push from the cul-
ture industry to hardwire software into hardware to make hacking more difficult.
40. Lawrence Lessig discusses the ramifications of a neutral protocol and the growth of
the Internet at some length. Lessig, The Future of Ideas (New York: Random House,
2001), 4148.
41. This is, again, not entirely new. I had written earlier that the academic peer review
process follows a dialogic model. The feedback mechanism in peer review should
ideally improve a work enough so that it may contribute to the existing discourse
and shape its antecedents. The network structure of peer review is designed to be
egalitarian; compromising the peer review process can stall development. The peer
review process depends on several factors, all of which are designed to eliminate
hierarchy. First, double-blind submission protects the identity of the parties involved
and the integrity of the work, which is judged solely on merit. Second, the reports
should be used to improve on the work and create stronger arguments. In the
aggregate, should the work be published, other scholars will digest its contents and
respond in future intellectual production. In academic publishing, discourse evolves;
no one scholar or work is immune to the passage of time, opinion, and new schol-
arship undermining the status quo. The horizontality of peer review and an implicit
cognizance of knowledges mutability guarantee that scholarly discourse will not
stay stagnant. Imagine the state of scientific and humanistic scholarship if blind
peer review did not exist or if extant scholarship had veto power over new, chal-
lenging viewpoints. Yet this is largely the state of literary publishing todaythe
cloud of authorial power and intellectual property obfuscates that fact.
The similarities between double-blind peer review and horizontal exchange have
not been lost on some academic journalsShakespeare Quarterly, in collaboration
with MediaCommons, recently conducted an online review process on a much more
expansive scale. My point is that the medium itself does not necessarily dictate the
execution of feedback and exchange, but it can certainly lean in one direction or
another.
42. Henry Jenkins argues that knowledge communities tend to convene and disperse
based on aligned goals or a mutual interest in a project. Jenkins, Convergence Culture:
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Where Old and New Media Collide, revised ed. (New York: New York University
Press, 2008), 5758.
43. Large software companies that base their business models on sales from software
licenses have a vested interest in protecting access to their source code, lest a com-
petitor simply copy, add a few cosmetic changes, and produce its own edition.
44. Friedrich Kittler, who writes extensively on the topic of the software and hardware
binary, argues against software interfaces entirely, upset that it masks unencum-
bered access to the machine. My work takes a different approach, focusing on the
philosophies driving software platforms and production models rather than getting
caught up in the idea of the machine as a site of true discourse. See chapter 7, There
Is No Software, and chapter 8, Protected Mode, in Kittler, Literature, Media, Infor-
mation Systems, 1st ed. (New York: Routledge, 1997).
45. Eric Raymond, The Cathedral and the Bazaar, The Cathedral and the Bazaar 23
(2000), http://catb.org/~esr/writings/homesteading/cathedral-bazaar/.
46. Lawrence Lessig and Eric Raymond offer thoughtful discussions of gift and sharing
economies. See Lawrence Lessig, Remix: Making Art and Commerce Thrive in the
Hybrid Economy (New York: Penguin Press, 2008), 14354; see also The Social
Context of Open-Source Software in Raymond, The Cathedral and the Bazaar.
47. Marcel Mauss, The Gift: Forms and Functions of Exchange in Archaic Societies, trans.
Ian Cunnison (New York: W.W. Norton, 1967), 1718.
48. Darren Wershler-Henry, Free as in Speech and Beer: Open-Source, Peer-to-Peer, and the
Economies of the Online Revolution (New York: Financial Times Prentice Hall, 2002), 3.
49. There are advantages and disadvantages to both approaches. Let us begin with the
disadvantages. One of the most persistent criticisms against proprietary software
is its vulnerability to attack by malicious software or viruses and the slow process
by which programming errors are resolved. For if a critical flaw is discovered, users
must wait until software engineers in Redmond or Cupertino find a solution, cre-
ate a software patch, and distribute it to their users. In the meantime, the users
have no recourse other than to try alternative software or simply wait. Further-
more, the costs of proprietary software can harm innovation. Proprietary software,
it is said, is philosophically detrimental to the free flow of information on the Inter-
net, because open protocols and constructive collaboration were the fundamen-
tals of its rapid growth and development. It does not follow that relying on closed
software would promote the same level of evolutionary growth.
50. http://xda-developers.com/.
51. These customizations are not without their inherent risksphones can become
bricked (rendered unusable) if the sometimes arcane and complicated steps are
not followed correctly, and unlocking the bootloader to install custom code in-
stalled instantly voids the warranties of the phones.
52. ptmr3, |ROM| Jedi Knight 6 |4.0.4| 12|07, XDA Developers, August 20, 2012, http://
forum.xda-developers.com/showthread.php?t=1861009.
53. In this case, Im using the term developer to refer to coders working on the actual
operating system rather than apps. The iOS community of app developers is actu-
ally quite robust.
umpRoh.indd 155 27/10/2015 3:10:26 PM

54. Raymond, The Cathedral and the Bazaar.
55. Peter Wayner, Free for All: How Linux and the Free Software Movement Undercut the
High-Tech Titans, 1st ed. (New York: HarperBusiness, 2000), 264.
56. N. Katherine Hayles, How We Read: Close, Hyper, Machine, ADE Bulletin, no. 150
(2010): 75.
57. Kathleen Fitzpatrick, Planned Obsolescence: Publishing, Technology, and the Future
of the Academy (New York: New York University Press, 2011), 52.
58. Ibid., 67.
Epilogue
1. Of course, there are myriad differences accounting for our different attitudes toward
unstable electronic and static print platformsthey arent perfect correlatives.
Computing, for one, isnt primarily a consumptive device; it is meant to be a tool
for productivity, enterprise, and creation. E-readers and tablets are less so. As tran-
sistors shrink and memory chip prices fall, computing power makes the fluctuation
of pixels and rendering of graphics all the more capable, and so the constant drive
for innovation and imagination. The book as a cultural vehicle is primarily an
object of consumption, with little incentiveand physical spaceto innovate.
2. Nick Montfort and Noah Wardrip-Fruin, Acid-Free Bits, Electronic Literature Orga-
nization, http://www.eliterature.org/pad/afb.html.
umpRoh.indd 156 27/10/2015 3:10:26 PM

INDEX
academia: digitization of publishing and, biases: disruptive textuality and, 725

2; plagiarism in, 1617 Bikkuriman chocolates: Japanese popular
accessibility: copyright law and, 12125, culture and, 8182
153nn3637 bishojo manga, 71
Amazon.com: fan fiction and, 9495 Bloom, Harold, 16, 2930
American Copyright Act (1790), 32 Bollywood films, 9091
Android Open Source Project (AOSP), Brazil: media regime in, 18
11116 Buffy the Vampire Slayer, 60
Android operating system, 11114 Bulletin Board Systems (BBSs), 131n1, ix;
aniparo dojinshi, 71 fan fiction and, 65
Apple Computer, 11617, 154n39 burlesque, 139n19
archontic literature, 67 business: cultural production and, 625,
Aristotle, 14 133n9
Astro Boy (Atomu Taishi, aka Tetsuwan
Atomu) (manga), 70 Campbell v. Acuff-Rose Music, Inc., 50
authorial integrity: digital technology canonical literature: appropriation of, 2;
and, 325; fan fiction and, 9395; law dojinshi and, 8389; dominant
and, 1317; network architecture and, narrative of, 79; fair use and, 5254;
1045; parody and, 4151, 143n81; fan fiction and, 8389; public domain
terminology, 132n5 and, 27
capitalism: digital technology and, 151n17
Bacon-Smith, Camille, 6566 Carey, James, 19
Bakhtin, M. M., 910, 1516, 105 Castells, Manuel, 100103, 153n30
Barthes, Roland, 1034 Cathedral and the Bazaar, The
Bate, Jonathan, 52 (Raymond), 109
Batrachomyomachia (Battle of the Frogs Cawein, Madison, 138n10
and Mice), 14 censorship: copyright protection and, 32,
Baudrillard, Jean, 136n50, 151n9 4451, 139n15
Benjamin, Walter, 2021, 136n46 centralized systems: distributive control
Benkler, Yochai, 1819 and, 1724
1 5 7
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Chakravorty Spivak, Gayatri, 46 open communication networks and,
Christensen, Clayton M., 133n10 1724; open-source paradigm and,
CLAMP (dojinshi group), 8889 10920
class dynamics: fan fiction and, 6667 Curll, Edmund, 143n81
Clueless (film), 139n19 Cyclops (Euripides), 14
Cohen, Ralph, 1011, 133n18
Coleridge, Samuel Taylor, 29, 138n10 Darnton, Robert, 150n6, 153n33
collaborative creativity, 14, 132n6 decentralization: cultural production
comics: in American culture, 69, 146n30. and, 24, 135n42
See also manga de Certeau, Michel, 6566
Comiket convention, 7176 Deleuze, Gilles, 100101
communal work: extralegal texts and, Delphi effect, 117
9192 Dentith, Simon, 31
communication: cultural production Derecho, Abigail, 67
and, 8389; decentered network, 100; derivative texts: cultural production and,
society formation and, 19 1112
connectivity: creativity and, ixx Derrida, Jacques, 67
Conroy, Pat, 41, 43, 4648, 51 de Solla Price, Derek, 104
constitutive choices, 152n21; in media determinism: digital technology and,
formation, 19 1824
copyright law: Anglo-American approach dialogic network, 910, 1516, 1045,
to, 149n52; appropriation of canonical 154n41
literature and, 2; Continental Dickens, Charles, 134n27
European approach to, 149n52; differenzqualitat: in cultural distribution,
creativity and, viii; dojinshi and, 1012
8283; early cases in, 132n4; Digital Millennium Copyright Act, 32
expiration dates and, 27, 137n3, digital technology: distribution of culture
140n35; fan fiction and, 5964; history and, 9899; extralegal text and,
of, 134n27, 137n2; in Japan, 6364, 150n61; generational ambivalence
8789, 149n52; literary appropriation concerning, vii; legal policy and,
and, 2833; moral rights and, 144n6, 1317; power dynamic and, 12125;
149n52; parody and, 1617, 27; publishing industry and, 125;
Photoshop and, 12122. See also fair terminal horizontality and, 1057
use; U.S. Copyright Act disruptive textuality: cultural production
Copyright Term Extension Act, 32, 36, and, 425, 12527, 133n10; extralegal
140n21 texts and, 8994; fan fiction and,
Copywrights (Saint-Amour), 52 5962, 6768; future issues for, 123;
cosplay in fan culture, 59, 7375 open communication networks and,
cruft: open-source paradigm and, 11920 1724; open-source paradigm and,
cultural production: collaborative 10920; plagiarism and, 1617
creativity and, 132n6; destablization distribution networks: for cultural produc-
and fragmentation of, 325; extralegal tion, 425, 137n51; extralegal texts
texts as, 8994; fan fiction and, 5862, and, 9192; intratextuality and intertex-
66; law and, 1317; manga as, 6983; tuality, 25; open communication
1 5 8 I N D E X
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networks and, 1824; oral culture and, fan fiction, 25; defined, 6465; disruption
9697; print technology and, 9798 of canonicity and, 8389; dojinshi
divergence: quality of, 1011 and, 7683; as extralegal texts, 5962;
do
jinshi, 25, 5595; absence of scholarship intellectual property rights and,
on, 148n56; defined, 7071; disruption 5595; motives behind, 6264, 144n3;
of canonicity and, 8389; manga and, slash genre in, 64
6883; motives behind, 6264, 144n3; fansubbing, 148n44
online sources, 6162; Pokmon Farrar, Straus, and Giroux, 35
Incident and, 86, 9192; producer and feedback mechanics: open communica-
consumer cooperation on, 7383; tion networks, 1078, 154n41
promotion and sale of, 7183 feminist theory: dojinshi and, 7683; fan
Donaldson v. Beckett, 3233 fiction and, 66; gender and, 141n47;
Dragonball (comic book series), viii Lolita and, 3741; Wind Done Gone
Dr. Seuss Enterprises v. Penguin Books, 40, and, 4651
141n49 Fifty Shades of Grey (James), 94, 144n7
Durarara dojinshi: amateur creation of, financial damages: copyright protection
7073; original creations, 7376 and, 4851
Dworkin, Craig, 132n6 Fitzpatrick, Kathleen, 118
Foucault, Michel, 1, 1034
economics: dojinshi and fan fiction and, Frankfurt School, 151n9
8889; extralegal texts and, 8994; fan Free Software Foundation, 109
fiction and, 6265, 9395; intellectual free speech: copyright law and, 2754,
property and, 12526; legal policy 137n1
and, 2654; open-source paradigm Frye, Northrop, 55
and, 10920, 155n43
Eisenstein, Elizabeth, 28 Galloway, Alexander, 101, 135n42, 152n19
Electronic Literature Organization (ELO), Garbus, Martin, 36, 40, 140n36
12425 Gates, Henry Louis Jr., 48
Eliot, T. S., 29, 52, 138n10, 141n48 gender: in dojinshi, 7683, 147nn3738;
Emma (Austen), 139n19 fan fiction and, 64, 66
Empire (Negri and Hardt), 100 gift economy: open-source paradigm
Enzensberger, Hans Magnus, 152n19 and, 10920
Erlich, Victor, 1011 Gitelman, Lisa, 1920
Euripedes, 14 GNU General Public License, 10911
Even-Zohar, Itamar, 910 Goldsmith, Kenneth, 132n6
Exit Strategy (Rushkoff), 6 Gone with the Wind (Mitchell), 2, 43, 4451
extralegal texts: cultural function of, Google: open-source paradigm and,
8994; disruption of canonicity and, 11620
8389; fan fiction as, 5962 Google Book project, 14, 21, 131n2
gratitude: open-source paradigm and,
fair use: absence in Japanese copyright 11214
of, 87; dojinshi and fan fiction and, Gray, Jonathan, 6566
8789; Google Book project and, 2; Guattari, Flix, 100101
parody and, 1617, 27, 3054 Guggenheim Foundation, 49
I N D E X 1 5 9
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Hall, Gary, 132n5 James, E. L., 94, 144n7
Hall, Stuart, 151n9 Jameson, Fredric, 2930, 100
Hardt, Michael, 100101 Jane Eyre (Bront), 46
Harrington, C. Lee, 65 Japan: copyright laws in, 6364, 8789;
Harry Potter fiction series, 60, 68 fan fiction in, 5595; legal profession
Hausa videos, 9091 in, 149n51; manga in, 6983, 145n27
Havelock, Eric, 106, 153n35 Jenkins, Henry, 58, 6566
Hayles, N. Katherine, 118 Johns, Adrian, 28
Holmes, Oliver Wendell, 29, 138n10 Jonson, Ben, 138n10
homosexuality: dojinshi and, 7683, Joyce, James, 52
147nn3738; slash fan fiction genre Joyce, Stephan, 52
and, 64, 68 june mono dojinshi, 71
horizontal network: feedback mechanics
and, 1078; literary versioning and, Kakutani, Michiko, 3637, 47
100105; open-source paradigm and, kanji: manga and knowledge of, 145n27
10920; peer review and, 154n41; Kimba, the White Lion (Janguru Taitei), 70
terminal and, 1057 King Lear (Shakespeare), 2
Houghton Mifflin, 4748 Kinsella, Sharon, 7071, 76, 81, 145n27
Howley, Hugh, 94 Kittler, Friedrich, 155n44
Hutcheon, Linda, 15, 23 Klinkowitz, Jerome, 6
knowledge production: plagiarism in, 1617
ideology of the author. See authorial
integrity Landes, Williams, 141n48
information: cultural production vs., Larkin, Brian, 90
2021, 136n46; noise and, 133n21; Lee, Harper, 48
open-source paradigm and, legal policy: dojinshi and, 8283;
10920 economic interests and, 2654;
intellectual property law: digital extralegal texts and, 8994; literature
technology and, viix; distribution of and, 1317
culture and, 325; early cases in, Lelchuck, Alan, 49
132n4; moral rights and, 144n6; Lessig, Lawrence, 30, 88, 139n15
parodies and, 2754; power dynamic Lethem, Jonathan, 132n6
and, 12123 Levi, Jonathan, 3637
International Copyright Act (Chace Act), Linux system, 109
134n27 literary appropriation: copyright law and,
Internet: access and control of, 152n19; 2833, 4751
copyright and, 139n15; fan fiction on, Literary Disruptions: The Making of a
6162; feedback mechanics and, Post-contemporary American Fiction
1078; horizontal network and, 1025; (Klinkowitz), 6
open communication and, 136n49 literary production: copyright law and,
Internet Galaxy, The (Castells), 153n30 2754
intertextuality: Los Diary and Lolita literary versioning: horizontal network
and, 41 and, 100105; open-source model
Ishikawa, Jun, 87 and, 99, 11920
1 6 0 I N D E X
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lolikon manga, 71 Morrison, Toni, 48
Lolita (Nabokov), 2425, 3541 Motola, Gabriel, 49
Lolita (von Lichberg), 41, 141n52 MP3 file format, 1
Lord, Albert, 150nn34 Mukarovsky, Jan, 134n23
Los Angeles Times, 3637 Murray, Laura, 16
Los Diary (Pera), 2425, 26, 3341
Lyotard, Jean Franois, 21 Nabokov, Dmitri, 35, 40, 51
Nabokov, Vladimir, 2425, 3341
Maar, Michael, 41 narrative: cultural production and, 2124
Machen, Ernest, 37 Natsume, Fusanosuke, 8789
MAD magazine, 30 Negri, Antonio, 100101
manga: classification of, 71, 144n10; Negroponte, Nicholas, 154n39
dojinshi and, 6883; origins of, network cultural theory, 24, 150n7;
145n27, 147n39; secondhand market horizontal network and, 100105
for, 145n25 neutrality: terminal horizontality and,
Manga: copyright infringement and, 55 1067
Manga and Copyright: Parody, Citation, New Treasure Island (Shin Takarajima)
and Dojinshi (Manga to chosakuken: (manga), 70
parodei to inyo
to dojinshi), 83 New York Times, 35, 47
Manovich, Lev, 12324 New York Times Book Review, 3537
market forces: do
jinshi and, 8889; legal Nigerian film industry, 9091
policy and, 2654 Nintendo, 86, 9192
Mauss, Marcel, 110 noise: culture and, 133n21
McCloud, Scott, 146n30 noncanonical literature: cultural distribu-
MediaCommons, 154n41 tion and, 912
media conglomerates; literary appropria-
tion and, 4751 Odyssey (Homer), 14
media studies: Baudrillard and, 136n50; One Laptop per Child program, 154n39
cultural approach to, 1924; online fan fiction, 6062, 65
horizontal network and, 100105 open communication networks: cultural
Mehra, Salil, 8283, 88 production and, 1724, 135n42;
Meyer, Stephanie, 144n7 feedback mechanics and, 1078;
Miki, Tori, 55 terminal and, 1057
Milton, John, 31 open-source paradigm: cultural
Mitchell, Margaret, 2, 41 production and, 9698, 10920;
Mitchell Trusts, 24, 4151, 140n36, 144n3 software development for, 99, 155n49
moderation: open-source paradigm and, oral culture, 150nn34; dialogic
11415 transmission of, 9697; plagiarism
modernity: distributed communications and, 139n11
network and, 25 originality: digital technology and idea of,
moral rights: intellectual property and, 132n6
144n6, 149n52 originaru dojinshi, 71
Morehouse College, 47 otaku (nerd), 5859, 143n1
Moretti, Franco, 119 tsuka, Eiji, 76, 8182
O
I N D E X 1 6 1
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Pannell, Charles, 47 Project Gutenberg, 136n47
Paradise Lost (Milton), 31 protocol: risks of, 152n19
parodia: Aristotles concept of, 1415 Protocol: How Control Exists after
parody: aniparo do
jinshi, 71; burlesque Decentralization (Galloway and
and, 139n19; cultural production and, Thacker), 135n42
1112; dojinshi and, 8283, 8789; public domain: copyright law and, 27,
extralegal texts and, 8994; fan fiction 137n3
and, 5962, 8789; legal policies and, publishing industry: digitization and
1317, 2654; satire and, 139n16 disruption of, 125
Patterson, L. Ray, 33, 48 Pugh, Sheenagh, 61, 6465
Paulson, William, 133n21 Pulitzer Prize, 2
Pearson, Roberta, 65
peer review: feedback mechanism and, race: fan fiction and, 66
154n41 Raley, Rita, 100102
PEN Foundation, 35 Randall, Alice, 24, 21, 24, 2629, 4451,
Penley, Constance, 65, 66 87, 142n66, 144n3
Pera, Pia, 2429, 3341, 87, 140n27, Rape of the Lock, The (Pope), 31
140n39 Raymond, Eric, 109
Perloff, Marjorie, 132n6 reading experience: fan fiction and,
piracy: extralegal texts and, 8994; fan 67
fiction and, 5595; Google Book recontextualization: parody and,
project and, 3; legal prosecution of, 3941
1317, 134n25, 134n27; plagiarism vs., remixing of cultural production:
139n11 distributive control and, 525
plagiarism: copyright law and, 2833, rhizome theory: horizontal network
138n10; dojinshi artists and, 8789; and, 100
legal prosecution of, 1317; piracy vs., Rhys, Jean, 46
139n11 Rice, Anne, 61, 144n6
Poetics (Aristotle), 14 Ripley, Alexandra, 43
Pokmon Incident, 86, 9192, 148n45 Rise of the Network Society (Castells),
polysystems theory, 913 101
Pope, Alexander, 31, 143n81 Rose, Mark, 32
Pope v. Curll, 143n81 Rowling, J. K., 68
Posner, Richard, 141n48 Rubin, Louis, 49
Poster, Mark, 100 Rushdie, Salman, 26
power dynamic: copyright law and, Rushkoff, Douglas, 6
12122 Russian formalism, 134n23; polysystem
Prince of Tides, The (Conroy), 43 theory and, 913
print technology: distribution networks
and, 9798, 1150n6; literary appro- Saint-Amour, Paul, 52
priation and, 2833; network architec- Saito, Kumiko, 147n37
ture and, 1045; terminal and, 1057 San Diego Comic Book Convention, 66
profit-sharing schemes: Google Book Sandvoss, Cornel, 65, 67
project and, 2 satire: parody and, 139n16
1 6 2 I N D E X
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Saturday Night Live (television show), Tulloch, John, 65
31, 58 Twain, Mark, 29, 134n27, 138n10
Scarlett (Ripley), 43, 144n3
Schodt, Frederik, 7172, 145n27 Udovitch, Mim, 37
Schumpeter, Joseph, 133n9 underground writing communities, 25
Shakespeare, William, 2; literary United States: deficits in Internet
borrowing by, 29, 138n10 technology in, 131n2; dojinshi
Shakespeare Quarterly, 154n41 appropriation of cultural artifacts
Shatner, William, 58 from, 76, 81
Skolnik, Peter L., 35 U.S. Constitution, 27, 137n2
slash fan fiction, 64, 68 U.S. Copyright Act, 30, 137n1, 139n20
Smiley, Jane, 2
software development: open-source Vaidhynathan, Siva, 29
paradigm and, 99, 155n49 von Lichberg, Heinz (aka Heinz Von
Stallman, Richard, 96, 109 Eschwege), 41
Starr, Paul, 19, 152n21
Star Trek series, 58, 60 Wayner, Peter, 117
Stationers Company, 33 Wealth of Networks, The (Benkler), 1819
Statute of Anne, 33 Weaver, Paul D., 47
St. Clair, William, 137n4 website development: costs of, 136n48;
Steinberg, Marc, 82 fan fiction and, 65; hotlinking and,
Sterne, Laurence, 138n10 152n28
structural determinism, 151n9 Wide Sargasso Sea (Rhys), 46
Suntrust v. Houghton Mifflin, 4752 Wilde, Oscar, 29, 138n10
surveillance: copyright law and, 12122 Williams, Raymond, 78
Suzuki, Kazuko, 76, 8183 Wind Done Gone, The (Randall), 2, 21, 24,
26, 33, 4151, 5354, 144n3
TCP/IP protocol, 152n18; horizontal women: in dojinshi, 7683
network and, 102 Wool science fiction series, 94
terminal: open communication networks
and, 1057, 151n8 XDA Developers open-source software
TeslaNet, 6 community, 25, 11120
Tezuka, Osamu, 6970, 146n28
Thacker, Eugene, 101, 135n42 yaoi dojinshi, 71, 7683, 147nn3738
Thousand Acres, A (Smiley), 2 Yonezawa, Yoshihiro, 72, 83
Torvalds, Linus, 109
transcoding: cultural production and, Zukofsky, Louis, 52
12324 Zukofsky, Paul, 52
I N D E X 1 6 3
umpRoh.indd 163 27/10/2015 3:10:27 PM

David S. Roh is assistant professor of English at the University of Utah. He
is coeditor of Techno-Orientalism: Imagining Asia in Speculative Fiction,
History, and Media. His writing has been published in Law and Literature,
MELUS, and Journal of Narrative Theory.
umpRoh.indd 165 27/10/2015 3:10:27 PM

Illegal Literature Toward A Disruptive Creativity

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Toward a Disruptive Creativity

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Copyright 2015 by the Regents of the University of Minnesota

Published by the University of Minnesota Press

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Prologue Between Analog and Digital Cultures vii

IntroductionAccretive Genius: The Case for Disrupting Culture 1

1 Dead Authors, Copyright Law, and Parodic Fictions 26

2 How Japanese Fan Fiction Beat the Lawyers 55

3 The Open-Source Model: Versioning Literature and Culture 96

Epilogue On Being Accused 121

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Between Analog and Digital Cultures

i belo ng to a g e n e r at i on o f s ch ol a r s that could be considered

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The Case for Disrupting Culture

Michel Foucault, The Subject and Power

c o nsi d er t h e f ol lowi n g pai r of literary disputes. In 2004, search

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The term disruptive is not without literary precedence. Jerome Klinkow-

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Part of the challenge in considering the value of disruptive texts is over-

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It is therefore vital that we use the term dominant in terms of hegemony

Cultural emergence in relation to the emergence and growing strength of a

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This tensionthe constant competition from non-canonized challen

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Formalism tends to investigate literary tension within language and a self-

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[Formalists] extended the scope of historical investigation to include mar-

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Closing Legal Precedence

The relationship between law and literature can be described as regula-

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Thus a parodic quality... may under certain circumstances be easily and

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Perhaps its slippery nature contributes to the difficulty in defining the

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Opening the Network Channel

Open communication networks can be difficult to navigate. When a per-

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This new form of communication is information.... The intelligence that

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I have tried to paint a clear picture of where literary production stands