Copygrounds: What do you think would happen if the right to active participation was extended to areas of cultural or informational production outside of copyright law? In other words, should people be allowed to actively participate to some extent in areas of production normally covered by trademark or patent law? Is it desirable to allow people to remix brands, reverse engineer and re-distribute software, etc?
Henry Jenkins: Not only is it reasonable, but it may also be desirable from the point of view of the rights holders. Eric Von Hipple in the Sloan School of Business at MIT has explored what he calls “lead users.” Lead users are early adopters of new products but also because they are on the cutting edge, they are also often adapters of those products. They adjust them to better serve their own needs which are sometimes generalizable to other users and sometimes highly specialized. Von Hipple advises companies to allow certain space of consumer experimentation and adjustments so that companies can monitor what they do with their products, identifying unexpected uses and unidentified bugs in their production. Some companies have institutionalized such practices, working with their most dedicated consumers to generate ideas that ultimately get translated into new products. Lego is a company very famous for such practices. Brands are discovering that allowing more free play with their once sacred icons is in fact generating greater public interest and also inspiring new approaches to marketing the product — even new ideas for the redesign of their products. In CC, I describe some of these practices in relation to the game companies but they are now much more widespread. And I believe opening up an even larger space for consumer experimentation with brands and products makes economic sense from the point of views of companies, as well as reflecting the realities of a more participatory culture. The companies have a legitimate interest in promoting their trademarks far enough to prevent confusion in the marketplace (the original goal of trademark law) and in promoting their patents far enough to prevent people from making money off of competing products (the original goal of patents), but from my point of view, they would benefit from loosening up a space for grassroots experimentation and innovation.
Copygrounds: Do you think authors should have a right to set limits for fan fiction? That is to say, would you be amenable to something along the lines of the European tradition of moral rights for authors with regard to fan fiction? Or do you advocate for the freeform re-interpretation of texts by fans no matter how radical these narratives might be?
Henry Jenkins: The current American system rewards authorship rights to corporate owners at the expense of both consumers and authors. The European tradition rewards moral rights to authors at the expense of the rest of the culture. Neither represents the most desirable system, in part because both falsify the actual conditions of authorship. Authors do not create value in a vacuum. All writers are already readers who are processing elements of their culture as the raw material for their own expressive and intellectual output, and in turn, their work becomes the raw materials for the next phase of creative expression. The U.S. Constitution provides for a system which balances the needs of the authors to profit from their own labor and the needs of the society to be able to build upon existing work. The moral rights tradition does not offer this same kind of counterbalance for the culture and thus provides even less protection for consumers (i.e. future authors) to build upon the materials of their cultural surroundings. As a practical matter, fans should observe the requests of authors, if only to avoid risk of legal action, though doing so runs the risk of abridging their fair use rights. What I would argue for would be a more rigorous and expansive notion of fair use (coupled with a more limited span of copyright and thus an expanded notion of public domain), restoring some of the balance that has been lost in the intellectual property system through the years. If such a system was in place, it could accommodate the needs of nonprofessional authors alongside their professional counterpart. The problem with our current system is that while my rights as an academic to quote from written texts in printed form is fairly clear, the rights of a nonprofessional to quote from a media text through digital means is far from clearly established and people feel that they are at risk when they seek to re-author their culture. Keep in mind that the key to my argument is transformative use. I am not advocating piracy pure and simple. Lawrence Lessig got in trouble this week because some of his comments were taken to be advocating straight piracy when he really was referring to fair use rights around transformative use. Our positions are not that far apart.
Copygrounds: What are your thoughts on the Recording Industry Association of America (RIAA) litigation campaign against individual file sharers? What about peer-to-peer file sharing? Do you believe people should have a right to actively participate not only in the production of culture but in its distribution as well?
Henry Jenkins: My current book project, undertaken with Sam Ford and Joshua Green, explores grassroots process of circulation. I use the term distribution to refer to a top-down process in the mass media and circulation to refer to the hybrid process in which commercial and noncommercial players help content to spread across the culture. Our argument is that fans are helping to create value through their acts of spreading content and commentary through their social networks and that companies need to be more aware (and accommodating) of value added through such processes. Again, I am referring more to quotation and commentary, though we have a larger concept of what these means than is most commonly accepted. But, I do think that what the industry labels as piracy is as often the result of market failure as it is of the moral failure of consumers, and that companies would do better to find ways to facilitate the kinds of sharing and access to content which leads people to step outside legal boundaries. I am talking about everyday people — not the commercial pirates. I consider myself to be a very ethical person but the times I step outside of legal channels to access content, it is when the content is not accessible to me in other ways — or at least not in a timely enough manner to meaningfully participate in the conversations which are growing up around the content. I recently found myself struggling to get access to an episode I missed of True Blood. I had subscribed to HBO. I legally had the right to watch the content. My Tivo had messed up. And there was no legal means provided for me to access that content which stood between me and watching more of the series. Technically, what I did was illegal, but it is hard to understand any economic or ethical logic where HBO had the right to prevent me from downloading and viewing that content. This is all the more the case when you consider that I end up paying for the content again when I buy the DVD set. I would have happily paid for the content via iTunes just to get back into the flow of the series, but they did not create a legal framework for accepting my payment — for the third time –to watch the content. I think people find themselves caught in such boxes more and more as they navigate a complex media landscape where the industry supply is not catching up with audience demand. As for the recording industry, they’ve acted like complete and total jackasses and don’t deserve any sympathy from anyone. When Napster first appeared, they should have cut the same deal with its owners that they have historically cut with radio stations — technically stations are free to play whatever music they want and they pay into a fund which gets distributed to the various rights holders. There’s no reason to have made this such a moral battleground and in the process destroy your industry when you could follow historic precedence, embrace new technology, respond to audience demands, and tap into a system which had the potential to broaden markets for B-List content. I am seeing other industries explore much better partnerships with their consumers and start to learn from the record industry’s mistakes.