Beruflich Dokumente
Kultur Dokumente
for
ESF
Exploratory
Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
1
Draft
for
ESF
Exploratory
Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
It
may
be
a
minor
point,
but
it
is
important
to
note
that
copyright
does
not
create
property
per
se.
Modern
copyright
legislation
creates
an
exclusive
set
of
rights,
which
give
the
creator
a
monopoly
like
situation
to
decide
exclusively
whether
his
or
her
right
may
be
copied
or
transferred
to
an
audience.
The
modern
origins
of
copyright
law
are
to
be
found
in
the
beginning
of
the
enlightenment
period,
specifically
modern
copyright
law
is
seen
to
begin
with
the
entering
into
force
of
the
Statute
of
Ann
in
17101.
A
central
premise
of
the
enlightenment
is
the
focus
on
the
individual
and
the
role
of
experience.
The
enlightenment
breaks
with
the
authoritarian
past
in
that
the
period
places
human
experience,
and
not
authority,
as
the
foundation
of
understanding
of
truth.
With
the
introduction
of
the
Statute
of
Ann
the
legislator
recognized
two
problems.
First,
that
the
printers
were
acting
in
a
manner,
which
was
deemed
to
be
unfair
towards
the
author
and
that,
these
acts
were
damaging
to
cultural
production.
The
preamble
of
the
draft
bill
explains
the
need
for
the
new
legislation:
“Whereas
Printers,
Booksellers,
and
other
Persons,
have
of
late
frequently
taken
the
Liberty
of
Printing,
Reprinting,
and
Publishing,
or
causing
to
be
Printed,
Reprinted,
and
Published
Books,
and
other
Writings,
without
the
Con
sent
of
the
Authors
or
Proprietors
of
such
Books
and
Writings,
to
their
very
great
Detriment,
and
too
often
to
the
Ruin
of
them
and
their
Families:
For
Preventing
therefore
such
Practices
for
the
future,
and
for
the
Encouragement
of
Learned
Men
to
Compose
and
Write
useful
Books”
With
the
introduction
of
this
act
the
focus
of
protection
was
moved
from
the
printers,
who
had
control
over
the
technology
of
copying
and
distribution,
over
to
the
author
whose
control
was
over
the
creation
of
the
works.
Two
additional
interesting
elements
of
the
act
are;
(1)
the
act
viewed
authorship
as
a
process
of
creating
something
out
of
nothing
and
(2)
the
focus
of
the
act
was
to
encourage
learning
by
regulating
the
book
trade
any
legal
advantages
gained
by
the
author
were
incidental,
a
means
to
reach
an
end.
Copyright
is
commonly
interpreted
in
relation
to
an
understanding
of
property
proposed
by
John
Locke,
who
was
discussing
the
wastefulness
of
underutilized
land
in
the
context
of
the
enclosure
movement,
from
the
point
of
view
that
idle
nature
was
wasteful
and
property
could
be
created
by
adding
labour
to
wasteland.
Individual
property
was
created
by
the
addition
of
labor
into
underused
land
since
“...every
man
has
a
Property
in
his
own
Person.
This
no
Body
has
any
Right
to
but
himself.
The
Labour
of
his
Body,
and
the
Work
of
his
Hands,
we
may
say,
are
properly
his”
(Locke
1960
[1690],
p
287-‐288).
From
this
point
Locke
extrapolates
that:
“Whatsoever
then
he
removes
out
of
the
State
of
Nature
hath
provided,
and
left
it
in,
he
has
mixed
his
Labour
with,
and
joined
to
it
1
An
Act
for
the
Encouragement
of
Learning,
by
vesting
the
Copies
of
Printed
Books
in
the
Authors
or
purchasers
of
such
Copies,
during
the
Times
therein
mentioned
(1709)
2
Draft
for
ESF
Exploratory
Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
something
that
is
his
own,
and
thereby
makes
it
his
Property”
(Locke
1960
[1690],
p
288).
This
latter
accommodating
view
on
property
creation
has
been
used
to
legitimize
the
creation
of
new
property
rights
in
both
tangibles
and
intangibles
(Hughes
1988).
As
we
have
seen
the
purpose
of
the
law
was
to
regulate
the
book
market
and
its
philosophical
underpinnings
were
taken
from
arguments
on
the
commoditization
of
finite,
rivalrous2
objects.
Such
as
a
system
may
have
been
clear
in
the
cultural
system
embedded
in
an
analog
technology,
a
system
where
the
creator
was
highly
dependent
upon
the
role
of
professionals,
such
as
printers
and
booksellers,
to
be
able
to
communicate
to
a
wider
audience.
However,
this
text
argues
that
these
intuitive
arguments
become
flawed
when
the
communications
infrastructure
is
no
longer
predominantly
analog.
Therefore,
the
act
carries
within
it
a
specific
socio-‐technical
system,
a
concept
of
technology
and
a
level
of
technological
sophistication.
It
attempts
to
establish
an
effect
through
the
balancing
of
norms
between
the
author
and
the
book
market
while
not
focusing
necessary
systems
of
copying
and
distribution.
The
latter
systems
lay
in
the
hands
of
the
printer/booksellers
and
were
to
be
resolved
contractually.
By
failing
to
see,
or
choosing
to
ignore,
the
role
of
technology
the
act
fixates
social
norms
in
a
static
technological
system.
The
effects
of
this
have
been
to
attempt
to
interpret
technological
developments
and
innovations
in
the
light
of
this
static
technological
understanding
and
embedded
in
the
technological
systems
of
the
early
18th
century.
One
size
fits
all
Other
countries
were
slow
to
follow
England’s
lead
but
eventually
in
the
centuries
following
the
implementation
of
the
Statute
of
Ann
many
countries
followed
England’s
lead
and
adopted
similar
systems
of
copyright
protection
(Johns
2009).
The
norm
of
copyright
was
slowly
becoming
internationalized.
However,
as
long
as
the
system
remained
in
the
hands
of
the
nation
states
it
was
flawed,
since
the
protection
offered
by
the
states
was
first
and
foremost
intended
for
their
own
nationals.
Towards
the
end
of
the
eighteenth-‐century,
international
book
piracy
was
viewed
as
a
serious
problem
and
the
United
States
was
commonly
identified
as
the
most
piratical
nation
in
this
field
(Johns
2009).
The
first
main
attempt
to
create
a
true
international
legal
norm
of
copyright
came
with
the
Bern
Convention
of
1886
which
established,
among
other
things,
the
principle
of
national
treatment,
which
holds
that
each
member
state
to
give
citizens
of
other
member
states
the
same
rights
of
copyright
that
it
gave
to
its
own
citizens.
In
addition
to
the
process
of
internationalization,
copyright
law
was
also
being
re-‐interpreted
in
the
light
of
new
technology.
As
copyright
deals
with
the
fixation
2
Rival
goods
are
goods
whose
consumption
by
one
individual
prevents
3
Draft
for
ESF
Exploratory
Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
(or
expression)
of
a
creative
idea
it
was
only
natural
that
we
new
technologies
of
fixation
appear
they
would
create
a
discussion
as
to
how
their
products
should
be
understood
in
the
light
of
existing
copyright
legislation.
One
of
the
more
interesting
of
these
discussions
deals
with
the
area
of
photography
and
the
question
of
whether
photographs
should
be
considered
to
be
a
creative
work
similar
to
the
text
and
be
given
the
same
protection.
This
complex
set
of
problems
was
discussed
in
the
case
of
Burrow-‐Giles
Lithographic
Co.
v.
Sarony3.
The
case
revolved
around
the
photographs
of
Napoleon
Sarony
and
in
particular
an
image
of
Oscar
Wilde.
Sarony
established
his
own
studio
in
New
York
in
1867
and
paid
celebrities
to
pose
for
photographs.
Sarony
would
retain
full
rights
to
sell
the
pictures.
In
1882
Sarony
paid
Oscar
Wilde
to
pose
for
a
series
of
photographs
which
he
then
made
into
prints
which
he
sold.
The
company
took
an
image
of
Oscar
Wilde
(no.
18)
and
began
using
it
in
an
advertisement.
Sarony
sued
for
a
violation
of
his
copyright
in
the
image.
The
case
of
Burrow-‐Giles
Lithographic
Co.
v.
Sarony4
discussed
whether
the
photographer
Sarony
could
have
sole
rights
to
his
portrait
of
Oscar
Wilde.
The
United
States
Supreme
Court
ruled
that
photographs
could
be
“…representatives
of
original
intellectual
conceptions
of
an
author”
and
were
therefore
to
be
protected,
in
the
same
way
as
text,
under
copyright
legislation
(Farley
2004).
Permissible
Piracy
An
obvious
problem
encountered
by
the
exclusivity
of
copyright
legislation
is
the
level
of
unauthorized
copying
that
is
permissible
within
the
framework
of
the
system.
This
problem
is
connected
to
related
problem
areas
such
as
plagiarism
and
homage
where
an
author
takes
earlier
works
and
either
builds
upon
them.
As
copyright
deals
with
the
expression
of
an
idea
and
not
the
idea
itself
it
opens
up
the
discussion
of
what
should
be
done
with
plagiarism.
The
issue
of
plagiarism
is,
in
its
clearest
form,
when
an
author
takes
the
work
of
another
and
presents
this
work
as
his
own.
In
this
situation
the
new
work
is
clearly
a
violation
of
the
first
authors
copyright
as
that
which
has
been
taken
is
the
expression
of
the
idea.
However,
plagiarism
becomes
more
complex
when
the
thing
that
is
appropriated
is
not
expression
but
the
idea
itself.
In
most
cases,
being
accused
of
plagiarism
is
viewed
as,
an
embarrassing
if
not,
serious
offence.
Most
cases
of
revealed
plagiarism
have
had
serious
consequences
for
the
authors
and/or
publishers.
In
2010
the
German
minister
of
defense,
Karl-‐Theodor
zu
Guttenberg,
was
stripped
of
doctorate
by
University
of
Bayreuth
and
forced
to
resign
after
revelations
that
his
PhD
thesis
contained
sections
of
text
plagiarized
from
other
authors.
It
is
interesting
to
note
that
not
all
authors
react
in
this
manner.
When
the
author
Helene
Hegemann
was
accused
of
plagiarizing
sections
of
her
debut
novel
Axolotl
3
l
l
lU.S.
58
(1884)
4
l
l
lU.S.
58
(1884)
4
Draft
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ESF
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Consuming
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Illegal:
Situating
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Leuven,
17-‐19
April
2011
Roadkill
(2010)
she
countered
by
presenting
her
writing
process
as
a
form
of
intertextuality
(Kristeva
1986)
by
saying:
“There’s
no
such
thing
as
originality
anyway,
just
authenticity”.
According
to
this
interpretation
of
intertextuality
it
is
(almost)
impossible
to
construct
a
new
text
but
rather
each
text
builds
on
the
past
and
is
“...
the
absorption
and
transformation
of
another”
(Kristeva,
1986
p
37).
Posner
(2007)
argues
that
the
taking
of
another’s
ideas
in
this
way
is
not
a
form
of
copyright
violation
–
as
the
expression
is
not
repeated
–
but
rather
is
a
form
of
fraud
as
the
later
author
claims
to
be
presenting
original
ideas
of
his
own.
Therefore
while
the
taking
of
another’s
ideas
may
not
be
a
violation
of
copyright,
indeed
the
works
that
are
taken
may
no
longer
be
protected
under
copyright,
the
act
still
runs
counter
to
the
social
norm
of
not
appropriating
that,
which
is
not
rightly
ones
own.
By
taking
the
position
of
fraud
as
a
starting
point
it
also
becomes
possible
to
understand
the
issue
of
self-‐plagiarism.
Using
copyright
as
an
argument
against
self-‐plagiarism
not
possible
(Bird
2002)
as
the
author
naturally
would
give
himself
permission
to
reuse
a
text.
Within
cultural
creations
there
is,
however,
a
level
of
acceptance
in
copying
and
reusing
the
ideas
of
other.
Commonly
referred
to
as
homage,
and
is
a
process
that
seems
to
exist
as
a
norm
between
plagiarism
and
copyright.
The
homage
may
be
viewed
as
mark
of
respect
when
a
creator
takes
ideas
or
themes
from
earlier
creators
works
and
interprets
them
in
an
original
work.
An
example
of
homage
is
the
Chicago
Union
Station
staircase
scene
in
De
Palma’s
film
The
Untouchables
(1987),
which
is
based
on
the
Odessa
steps
scene
in
Eisenstein’s
film
The
Battleship
Potemkin
(1925).
In
both
cases
the
violent
scenes
are
interspersed
with
a
baby
in
a
pram
uncontrollably
rolling
down
the
stairs.
Alternatively
Quentin
Tarantino’s
films
Kill
Bill
1
&
2
(2003
&
2004),
which
are
his
homage
to
the
whole
genre
of
martial
arts
films.
Interestingly,
in
Kill
Bill,
Tarantino
portrays
an
identifiable
character
of
a
one-‐
armed
swordsman,
which
is
based
upon
the
earlier
Hong
Kong
film
One-‐Armed
Swordsman
(Dubidao)
(dir.
Zhang
Che,
1967).
Pang
(2005
p
136)
argues
that
there
is
a
norm
of
cultural
dominance
occurring
here
with
“The
underlying
assumption
is
that
Hollywood
productions
are
superior
to
the
local
ones
both
in
terms
of
creativity
and
in
the
legal
sense—only
Hong
Kong
plagiarizes
Hollywood,
and
never
vice
versa.”
Another
example
of
East
West
cultural
transfer
can
be
seen
in
the
film
The
Lion
King
(1994),
which
bears
a
strong
resemblance
to
Kimba
the
White
Lion
the
Japanese
television
cartoon
from
the
1960s.
Similarities
include
the
name
of
the
lead
character
(Kimba/Simba),
the
plot
line
and
scenes
with
nearly
identical
composition
and
perspective.
Disney’s
official
position
is
that
similarities
are
all
coincidental
and
that
the
story
is
inspired
by
public
domain
works
such
as
Moses
from
the
Bible
and
Hamlet
by
William
Shakespeare
(Schweizer
and
Schweizer
1998)
5
Draft
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on
Consuming
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Illegal:
Situating
Digital
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in
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Experience,
Leuven,
17-‐19
April
2011
(Plaintiff)
against
John
Doe,
writing
under
the
name
John
David
California;
Windupbird
Publishing
Ltd;
Nicotext
A.B.;
and
ABP,
Inc.
d/b/a
SCB
Distributors
Inc,
(Defendants)
United
States
District
Court
Southern
District
New
York,
Case
1:09-‐cv-‐05095-‐DAB,
Filed
07/01/2009.
6
Draft
for
ESF
Exploratory
Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
Catcher
in
the
Rye
(“Catcher”)
written
by
Salinger.
The
Sequel
infringes
on
Salinger’s
copyright
rights
in
both
his
novel
and
the
character
Holden
Caufield,
who
is
the
narrator
and
essence
of
that
novel.”
In
marketing
the
book
it
was
presented
as
a
sequel,
while
to
the
court
Colting
argued
that
the
work
was
a
parody
of
its
original.
In
essence
the
court
agreed
with
Salinger
and
found
that
California
had
“…taken
well
more
from
‘Catcher’,
in
both
substance
and
style,
than
is
necessary
for
the
alleged
transformative
purpose
of
criticizing
Salinger
and
his
attitudes
and
behavior.”
The
court
issued
a
ruling
preventing
the
manufacturing,
publishing,
distributing,
shipping,
advertising,
promoting,
selling,
or
otherwise
disseminating
any
copy
of
the
Sequel.6
The
process
of
fan
fiction,
borrowing
from
earlier
works
to
continue
a
well-‐
known
story
has
its
roots
back
in
oral
story-‐telling
and
may
be
seen
in
early
works
such
as
The
Epic
Cycle
and
its
relation
to
The
Odyssey
an
The
Iliad
(Burgess
2001).
Even
in
the
analog
eighteenth-‐century
fans
were
doing
more
than
simply
deciphering
and
interpreting
its
inner
qualifications.
In
her
study
on
fan-‐fiction
in
the
enlightenment
Elizabeth
Judge
(2009)
notes
that
the
practices
included
annotations
in
book
margins,
penning
alternate
endings
and
revisionist
interpretations.
In
addition
to
this
rival
authors
wrote
parodies
or
unauthorized
sequels
and
“…contemporary
fans
made
fascinating
interventions
in
these
characters’
lives
by
casting
them
in
sequels,
migrating
them
to
different
genres,
honouring
them
with
namesake
racehorses,
and
spawning
character
merchandise,
such
as
waxworks,
silk
fans,
and
china
sets.”
(p
26)
It
may
therefore
be
taken
as
a
given
that
the
desire
to
produce
and
spread
fan-‐
fiction
has
been
part
of
our
culture
comparable
to
our
desire
to
read
the
established
works
which
the
fan
fiction
is
based
upon.
Therefore
it
should
come
as
no
surprise
that
our
recent
shift
in
our
basic
communications
infrastructure
and
our
digitalization
of
cultural
experience
have
naturally
led
to
an
increased
ability
to
produce
and
spread
works
of
fan
fiction.
Clash
of
Systems:
Parody
While
we
often
attempt
to
understand
systems
as
if
they
existed
independently
of
any
form
of
context,
this
is
usually
a
form
of
simplification
in
order
to
understand
the
workings
of
the
systems.
The
system
of
copyright,
for
example,
does
not
exist
in
a
vacuum
but
must
exist
concurrently
with
other
systems
and
norms.
An
area
where
copyright
regularly
overlaps
with
another
system
is
the
area
of
parody.
Despite
the
exclusivity
of
copyright
it
is
regularly
deemed
to
be
secondary
to
the
“right”
to
parody.
In
his
research
Spence
(1998)
presents
four
common
arguments
why
parody
should
be
permitted
(1)
parody
is
a
distinct
genre
and
needs
protection,
(2)
parody
demonstrated
an
instance
of
market
failure
in
copyright
as
authors
are
unlikely
to
give
permission
to
have
their
works
parodied,
(3)
parodies
as
transformative
works
–
the
works
are
new
and
6
Ibid.
7
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April
2011
original
even
if
they
are
dependent
upon
the
earlier
work,
and
(4)
the
free
speech
argument,
where
the
parodists
right
to
free
speech
needs
to
be
supported.
Therefore
there
exists
a
conflict
between
parody
and
copyright
that
regularly
needs
to
be
defined
by
the
courts.
Take
for
example
the
case
of
Rogers
v
Koons7,
the
artist
Jeff
Koons
unsuccessfully
argued
that
his
use
of
elements
of
Rogers’
photograph
in
his
sculpture,
String
of
Puppies
(1998),
was
to
be
interpreted
as
parody.
The
court
did
not
accept
Koons’
argument
that
his
sculpture
was
a
parody
of
modern
society.
Further
the
court
went
on
to
interpret
parody
to
mean
that
the
appropriated
work
must
itself
be,
at
least
in
part,
parodied.
The
courts
position
differs
in
this
aspect
from
a
commonly
accepted
understanding
that
parody
is
an
“…imitation
characterised
by
ironic
inversion,
not
always
at
the
expense
of
the
parodied
text”
(Hutcheon
1985,
p6).
A
recent
conflict
concerning
the
overlap
between
copyright
and
parody
occurred
in
a
work
that
portrayed
the
civil
war
classic
Gone
With
The
Wind
(1936)
by
Margret
Mitchell
in
a
new
light.
Where
Mitchell’s
novel
tells
the
story
of
the
troubles
of
the
wealthy,
white
daughter
of
a
slave
owner
Scarlett
O’Hara,
Alice
Randall’s
The
Wind
Done
Gone
(2001)
is
set
in
the
same
location
and
period
but
told
from
the
point
of
view
of
Scarlett’s
half-‐sister,
the
slave
Cynara.
While
The
Wind
Done
Gone
avoids
using
the
names
of
Mitchell’s
characters
or
locations.
It
is
not
difficult
from
the
title
and
context
to
understand
what
the
Randall’s
novel
is
portraying
and
parodying.
Margaret
Mitchell’s
estate
reacted
to
the
publication
of
Randall’s
book
by
suing
her
and
her
publisher
for
copyright
infringement
on
the
grounds
that
The
Wind
Done
Gone
was
too
similar
to
Gone
with
the
Wind,
thus
infringing
its
copyright.
The
case
was
eventually
settled
out
of
court
in
2002
with
Randall’s
publisher
Houghton
Mifflin
making
an
unspecified
donation
to
Morehouse
College
in
Atlanta.
It
is
interesting
to
note
that
Randall
&
Houghton
Mifflin
attempt
to
define
the
work
as
a
parody,
physical
copies
of
The
Wind
Done
Gone
bear
stickers
with
the
text
“The
Unauthorized
Parody”.
This
raises
the
interesting
question
of
attempting
to
define
the
parody
and
additionally
the
question,
when
in
doubt,
whom
has
the
right
to
interpret
a
parody.
Positioning
Piracy
For
most
of
the
history
of
copyright
the
question
of
piracy
concerned
the
organized,
unauthorized
taking
of
others
material.
While,
as
we
have
seen,
individuals
have
been
active
in
this
respect
the
results
of
their
work
have
been
largely
tolerated.
Arguably
this
may
be
due
to
the
individual’s
lack
of
access
to
an
efficient
communications
infrastructure.
Therefore
the
actual
constraints
to
piracy
were
not
legal
or
based
upon
social
norms
but
were
largely
technical.
7
Rogers
v.
Koons,
960
F
2d
301
(2nd
Cir.1992)
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2011
Therefore
it
is
unsurprising
that
when
the
technological
barriers
were
removed
individuals
would
begin
to
create
and
share
on
a
larger
scale.
In
light
of
this
increased
piratical
behavior
copyright
organizations
have
been
lobbying
the
courts
and
legislators
to
make
the
law
into
an
artificial
barrier
to
replace
the
lost
technical
barrier.
The
move
towards
more
defined
and
limiting
(from
the
pirates
point
of
view)
legislation
has
had
a
detrimental
effect
on
many
previously
tolerated
activities.
Lawrence
Lessig
(2008)
argues
that
our
culture
today
has
the
potential
to
be
a
culturally
active
zone
with
large
amounts
of
small-‐scale
creators
working
on
enriching
the
cultural
sphere.
However,
this
production
is
being
lost
as
the
law
is
creating
a
read/only
culture
where
the
freedoms
available
through
the
copyright
bargain
are
being
eroded.
Lessig
(2008)
calls
for
the
building
and
strengthening
of
a
remix
culture,
a
society
that
not
only
allows,
but
also
encourages
derivative
works.
Within
such
a
culture
the
default
would
be
that
it
was
permissible
to
add
to,
and
share,
available
works.
The
motivation
or
desirability
for
such
a
culture
would
be
the
widespread
increase
in
creativity
and
cultural
output.
Under
the
present
legal
regime
the
remix,
both
in
its
legal
and
illegal
forms,
is
often
under
direct
threats
of
legal
action
and
the
ensuing
uncertainty
of
the
creator
as
to
the
legality
of
his
actions.
A
popular
form
of
remixing
is
the
creation
music
videos
by
recording
video
clips
from
movies,
cartoons,
games
etc
and
adding
new
soundtracks
–
most
often
music
–
to
the
clips.
An
example
of
the
practice
can
be
seen
in
the
work
of
Johan
Söderberg
(2003)
whose
remix
of
Lionel
Richie’s
song
Endless
Love
set
to
news
images
of
George
W.
Bush
and
Tony
Blair,
gives
the
appearance
of
a
love
story
between
the
world
leaders.
A
subgenre,
within
this
genre,
entails
the
blending
of
pop
music
set
to
Japanese
anime
cartoons.
The
resulting
works
are
known
as
Anime
Music
Videos
(AMV).
As
we
begin
to
understand
from
the
examples
presented
in
this
text
it
is
increasingly
difficult
to
know
what
the
outcomes
of
an
instance
of
appropriation
will
result
in.
At
this
stage
I
would
like
to
attempt
to
map
the
different
examples
into
the
fields
of
legal,
illegal
and
tolerated
and
untolerated
piracy.
By
positioning
them
in
this
manner
I
hope
to
demonstrate
the
difficulties
involved
in
understanding
how
the
current
copyright
system
deals
with
these
types
of
actions.
Naturally,
each
of
these
cases
is
different
in
the
circumstances
for
their
development
and
presentation
but
all
represent
the
use
of
an
earlier
work
in
an
attempt
to
present
a
new
work.
They
are,
so
to
speak,
both
dependent
on
the
earlier
works
and
at
the
same
time
stand
independently
to
them
as
new
cultural
products.
Together
with
this
positioning
I
have
attempted
to
label
the
acts
with
a
more
common
terminology
in
a
further
attempt
to
position
the
works
culturally.
Therefore,
Endless
Love
the
AMV
represent
an
artform,
which
is
both
tolerated
and
illegal
and
has
commonly
come
to
be
seen
as
examples
of
a
remix,
while
the
tolerated
legal
form
of
this
process
would
be
seen
as
a
homage.
Meanwhile
the
9
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untolerated,
legal
form
would
be
a
parody,
while
the
untolerated
and
illegal
form
is
usually
seen
simply
as
piracy.
The
purpose
of
this
visualization
is
to
present
the
reader
with
a
clearer
positioning
of
the
cultural
products
within
a
socio-‐legal
system.
The
legal-‐illegal
dichotomy
is
easily
understood
but
by
simply
remaining
on
this
axis
we
fail
to
fully
see
that
the
law
is
not
a
system
that
acts
alone
outside
a
social
context.
Additionally,
by
visualizing
the
process
of
creation
based
on
earlier
works
in
this
way
we
easily
see
a
need
for
clarification
of
the
position
of
the
groups’
works
that
are
either
untolerated
and
legal
or
tolerated
and
illegal.
Both
these
groups
rely
on
a
weak
set
of
protective
rules
and
an
unacceptable
level
of
protection.
It
is
intuitive
to
place
the
homage
into
the
section
of
Legal/Tolerated
despite
the
issues
that
may
surround
their
creation
and
use
they
are
firmly
accepted
as
a
legitimate
form
of
activity.
However
this
is
not
necessarily
obvious
from
viewing
the
cultural
product
but
is
understood
from
the
social
reactions
to
the
products.
One
could
argue
that
it
is
the
inaction
of
the
copyright
holder
makes
them
legitimate.
In
the
cross
section
of
Legal/Untolerated
we
may
place
parodies.
Taken
as
a
theoretical
standpoint
most
legal
systems
support
the
right
to
parody.
However
the
parody
is
not
necessarily
safe
simply
because
of
this
theoretical
right.
Both
The
Wind
Done
Gone
and
the
Downfall
parodies
have
been
threatened
by
copyright
holders
and
show
how
precarious
a
position
this
is
to
maintain.
In
the
area
of
Illegal/Tolerated
we
find
the
cultural
products,
which
are
on
the
definite
fringe
of
cultural
production.
This
is
the
home
of
the
remix,
such
as
AMV’s
and
the
Endless
Love
duet.
These
cultural
products
have
a
very
low
ability
to
survive
should
any
copyright
decide
to
take
action.
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April
2011
Finally
we
see
the
losers
of
this
system
in
the
Illegal/Untolerated
field.
Here
are
the
works
that
have
been
challenged
and
lost.
They
are,
for
all
intents
and
purposes,
banned
works.
When
looking
at
the
positioning
of
the
different
works
in
the
table
seems
that
there
is
a
difference
in
the
treatment
between
acceptable
and
unacceptable
cultural
productions
and
that
these
norms
are
a
form
of
cultural
hegemony
attempting
to
control
certain
cultural
forms
that
are
found
to
be
less
worthy
of
our
consideration.
It
is
however
important
to
bear
in
mind
the
words
of
Franz
Boas
“…civilization
is
not
something
absolute,
but
…
is
relative,
and
…
our
ideas
and
conceptions
are
true
only
so
far
as
our
civilization
goes.”
Boas
wrote
these
words
when
he
was
discussing
the
novel
concept
of
cultural
relativism
and
attempting
to
remind
us
that
concepts
of
right
and
wrong
are
similar
to
ideas
of
taste
and
culture
in
that
they
are
neither
constant
in
time
or
geography.
This
attempt
at
positioning
is
complicated
by
the
works
Axolotl
Roadkill
and
The
Lion
King
as
they
have
not
been
challenged
in
court.
From
this
we
are
to
assume
that
they
are
legal
works
where
Axolotl
Roadkill
admits
to
plagiarism
and
The
Lion
King
denies
any
“wrongful”
borrowing.
Therefore
in
order
to
better
understand
the
relationship
between
legality
and
tolerance
we
must
further
understand
the
relationships
between
law
and
social
norms.
Law
and
norms
Norms
may
be
understood
as
the
socially
agreements
which
coordinate
our
interactions
with
others
(Lewis
1969).
Such
norms
often
govern
forms
of
social
interaction
that
we
view
as
socially
correct
behavior
in
a
given
situation.
These
norms
are
negotiated
and
enforced
within
social
group
rather
than
being
dictated
from
above.
This
is
why,
for
example,
laws
governing
jaywalking,
speeding
and
tailgating
can
be
the
same
in
different
countries
but
our
social
adherence
to
the
rules
differ
widely
(Vanderbilt
2008).
We
tend
to
adhere
to
social
norms
once
they
have
become
established
partly
from
indoctrination
in
the
rule
as
being
the
correct
way
to
act
and
due
to
the
expectation
that
others
will
also
follow
this
accepted
behavior
(Peyton
2008).
One
way
of
understanding
the
problem
is
the
realization
that
law
and
social
norms
rarely
fully
match
each.
One
way
of
understanding
the
relationship
between
law
and
norms
is
that
the
law
explains
what
we
ought
to
do
while
norms
demonstrate
what
we
actually
do.
To
this
complex
image
we
must
also
add
the
effects
of
our
technology,
as
it
is
ultimately
here
we
are
limited
by
what
is
physically
possible.
Any
discussion
on
the
rights
or
wrongs
of,
for
example,
making
a
copying
of
a
cultural
artifact
is
ultimately
defined
by
our
ability
to
make
such
a
copy.
11
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2011
Three
main
technological
factors
are
of
importance
to
cultural
piracy.
First,
the
bulk
of
our
cultural
production
has
now
become
digitalized.
Second,
our
homes
have
become
connected
at
fixed
costs.
Third,
our
ability
to
store
(and
the
cost
of
storing)
data
has
improved
to
the
point
were
storage
is
not
an
issue.
To
this
can
be
added
the
major
shift
in
our
consumption,
legal
or
otherwise,
now
mainly
is
done
with
the
aid
of
digital
devices.
All
the
technology
surrounding
our
cultural
consumption
implicitly
encourages
us
to
store,
share
and
consume
culture.
Or
to
put
it
very
simply
–
what
implicit
message
is
transferred
with
a
MP3
player
that
can
store
40
000
songs?
With
the
falling
away
of
technical
barriers
to
sharing
there
has
been
a
demand
that
the
law
should
fill
the
role
of
the
lost
technical
barriers
to
sharing.
However,
the
problem
is
that
the
norm
of
creating
and
sharing
is
strong
and
does
not
seem
to
match
the
demands
of
those
parts
of
the
copyright
industry
calling
for
limitations
to
user
rights.
Indeed,
as
individuals
enter
the
arena
of
cultural
sharing
they
take
their
cues
from
the
tolerated/legal
and
the
untolerated/legal
products.
On
the
face
of
it
is
difficult
to
see
why
these
products
are
available
while
others,
those
in
the
untolerated/illegal
section
are
penalized.
The
result
is
that
the
users
have
the
desire
to
create,
the
technology
to
create,
the
infrastructure
to
share
but
are
supposed
to
be
limited
by
legal
rules
which
seem
not
make
sense
internally
or
match
the
current
set
of
norms
within
this
social
framework.
The
norms
at
work
create
a
system
where
the
individuals
believe
themselves
to
have
the
right
to
interact
with
the
cultural
products
presented
by
the
culture
industry.
Henry
Jenkins
(2006)
argues
that:
“Fans
reject
the
idea
of
a
definitive
version,
produced,
authorized,
and
regulated
by
some
media
conglomerate.
Instead,
fans
envision
a
world
where
all
of
us
can
participate
in
the
creation
and
circulation
of
central
cultural
myths.
Here,
the
right
to
participate
in
the
culture
is
assumed
to
be
“the
freedom
we
have
allowed
ourselves,”
not
a
privilege
granted
by
a
benevolent
company…
Fans
also
reject
the
studio’s
assumption
that
intellectual
property
is
a
“limited
good,”
to
be
tightly
controlled
lest
it
dilute
its
value.
Instead,
they
embrace
an
understanding
of
intellectual
property
as
“shareware,”
something
that
accrues
value
as
it
moves
across
different
contexts,
gets
retold
in
various
ways,
attracts
multiple
audiences,
and
opens
itself
up
to
a
proliferation
of
alternative
meanings.”
(p
256)
12
Draft
for
ESF
Exploratory
Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
One
of
the
problems
with
the
desire
of
users
to
participate
in
a
cultural
production
and
discussion
are
the
limiting
effects
of
the
current
legal
system.
The
fear,
uncertainty
and
doubt
(FUD)
about
the
current
regulatory
system
results
in
a
reduction
of
the
number
of
individuals
and
groups
taking
part
in
the
cultural
sphere.
Regulation
by
Proxy:
the
license
Assisted
by
technology,
there
is
a
large
amount
of
cultural
creation
emerging
in
the
gap
created
between
user
norms
and
legal
rules.
While
the
tools
for
creativity
are
mainly
in
the
hands
of
the
users
the
infrastructure
for
transferring
the
cultural
products
are
in
the
hands
of
others
and
are
offered
to
the
users
for
at
no
cost.
As
the
users
are
not
paying
for
their
infrastructure
they
have
no
rights
to
place
demands
for
a
level
of
service.
The
de
facto
standard
for
spreading
remixed
material
such
as
AMVs,
Downfall
parodies
and
Endless
Love
today
is
the
video-‐sharing
site
YouTube.
There
is,
however,
an
additional
level
of
regulation
that
must
be
taken
into
consideration
as
it
impacts
on
the
ability
to
transfer
cultural
material.
This
level
of
regulation
is
the
system
of
licenses,
which
any
user
wishing
to
upload
a
video
is
required
to
agree
to.
As
the
licensing
system
is
based
upon
a
contractual
relationship
between
the
user
and
the
platform
provider,
and
the
latter
if
providing
the
service
at
little
or
no
cost,
the
agreement
tends
to
be
slanted
in
favor
of
the
provider.
A
result
of
this
is
that
it
is
necessary
for
cultural
products
to
fit
into
the
norms
set
by
the
technology
and
the
wishes
of
the
service
provider.
Additionally,
as
the
service
provider
receives
little
or
no
payment,
they
have
little
or
no
incentive
to
defend
the
“rights”
of
the
uploader
to
transmit
any
cultural
product.
A
weakness
in
this
system
is
that
if
the
platform
provider
receives
a
complaint
from
a
copyright
holder,
whether
valid
or
not,
the
platform
provider
will
inevitably
commence
the
automated
removal
of
all
materials
covered
by
the
complaint.
This
was
the
process
that
took
place
when
Constantin
Films
sent
a
complaint
to
YouTube,
as
described
in
the
introduction
of
this
text.
The
complaint
by
Constantin
Flims
activated
YouTube’s
automated
filtering
system,
Content
I.D.
even
if
their
claims
were
questionable
as
the
use
of
the
Downfall
clip
would
have
been
covered
by
the
fair
use
rules
in
the
American
copyright
system.
The
effect
is
as
McSherry
(2010)
defines
it
“…a
content
owner
can
take
down
a
broad
swath
of
fair
uses
with
the
flick
of
a
switch.
It
seems
that’s
exactly
what
Constantin
Film
has
chosen
to
do.”
While
there
are
naturally
measures
a
user
can
take
should
his
material
be
removed
from
a
content
provider,
however
it
is
clear
that
the
user
is
placed
in
a
unfavorable
position
and
any
attempts
to
argue
will
be
an
uphill
battle.
Conclusion
13
Draft
for
ESF
Exploratory
Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
The
topic
of
this
paper
was
to
take
a
closer
look
at
some
of
the
different
ways
in
which
cultural
material
is
used
and
reused.
In
particular
this
work
wanted
to
widen
the
discussion
by
not
limiting
it
to
being
either
a
legal,
technical
or
social
topic.
The
production
of
innovative
cultural
material
relies
on
a
healthy
access
to
earlier
material,
the
creativity
to
expand
on
that
material,
the
legal
leeway
to
share
that
material
and
the
technical
platforms
with
which
to
reach
other
users.
For
most
of
the
history
of
copyright
the
most
limiting
factor
for
a
large
scale
participatory
cultural
sphere
has
been
limited
by
the
lack
of
technical
means
with
which
to
create
and
share
the
results
of
the
work.
Today
these
technological
limitations
have
been
reduced
and
are
easily
surpassed
by
most
users
wishing
to
participate
in
a
cultural
exchange.
We
should
therefore
be
entering
into
an
unprecedented
production
of
cultural
material.
One
the
one
hand
this
is
exactly
what
is
happening.
The
amounts
of
copyrightable
material
being
produced
and
spread
today
are
far
greater
than
in
any
other
period
in
history.
However,
on
the
other
hand,
the
legal
risks
and
the
regulation
through
licenses
discussed
here
show
that
the
material
being
produced
and
spread
is
discriminated
against
and
is
under
risk
of
being
removed,
and
its
authors
punished
for
their
productions.
These
issues
need
to
be
addressed.
The
original
purpose
of
copyright,
and
its
often
legitimizing
reason
put
forward
today,
is
that
by
protecting
the
rights
of
the
creator
there
will
be
an
increased
incentive
to
produce
more
material.
Society
offers
a
monopoly
in
return
for
an
increased
level
of
cultural
material.
However
this
bargain
has
been
steadily
eroded
and
is,
at
the
point
where
it
is
technically
possible
for
a
wide
scale
participation
in
danger
of
being
lost.
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Workshop
on
Consuming
the
Illegal:
Situating
Digital
Piracy
in
Everyday
Experience,
Leuven,
17-‐19
April
2011
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