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James Meese - Authors, Users, and Pirates: Copyright Law and Subjectivity

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An examination of subjectivity in copyright law, analyzing authors, users, and pirates through a relational framework.
In current debates over copyright law, the author, the user, and the pirate are almost always invoked. Some in the creative industries call for more legal protection for authors; activists and academics promote user rights and user-generated content; and online pirates openly challenge the strict enforcement of copyright law. In this book, James Meese offers a new way to think about these three central subjects of copyright law, proposing a relational framework that encompasses all three. Meese views authors, users, and pirates as interconnected subjects, analyzing them as a relational triad. He argues that addressing the relationships among the three subjects will shed light on how the key conceptual underpinnings of copyright law are justified in practice.
Meese presents a series of historical and contemporary examples, from nineteenth-century cases of book abridgement to recent controversies over the reuse of Instagram photos. He not only considers the author, user, and pirate in terms of copyright law, but also explores the experiential element of subjectivity--how people understand and construct their own subjectivity in relation to these three subject positions. Meese maps the emergence of the author, user, and pirate over the first two centuries of copyrights existence; describes how regulation and technological limitations turned people fromcreators to consumers; considers relational authorship; explores practices in sampling, music licensing, and contemporary art; examines provisions in copyright law for user-generated content; and reimagines the pirate as an innovator.

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The Information Society Series Laura DeNardis and Michael Zimmer Series - photo 1

The Information Society Series

Laura DeNardis and Michael Zimmer, Series Editors

Interfaces on Trial 2.0, Jonathan Band and Masanobu Katoh

Opening Standards: The Global Politics of Interoperability, Laura DeNardis, editor

The Reputation Society: How Online Opinions Are Reshaping the Offline World, Hassan Masum and Mark Tovey, editors

The Digital Rights Movement: The Role of Technology in Subverting Digital Copyright, Hector Postigo

Technologies of Choice? ICTs, Development, and the Capabilities Approach, Dorothea Kleine

Pirate Politics: The New Information Policy Contests, Patrick Burkart

After Access: The Mobile Internet and Inclusion in the Developing World, Jonathan Donner

The World Made Meme: Public Conversations and Participatory Media, Ryan Milner

The End of Ownership: Personal Property in the Digital Economy, Aaron Perzanowski and Jason Schultz

Digital Countercultures and the Struggle for Community, Jessica Lingel

Cyberbullying Policies of Social Media Companies: Toward Digital Dignity, Tijana Milosevic

Authors, Users, and Pirates: Copyright Law and Subjectivity, James Meese

Authors, Users, and Pirates

Copyright Law and Subjectivity

James Meese

The MIT Press

Cambridge, Massachusetts

London, England

2018 Massachusetts Institute of Technology

All rights reserved. No part of this book may be reproduced in any form by any electronic or mechanical means (including photocopying, recording, or information storage and retrieval) without permission in writing from the publisher.

This book was set in Stone Serif by Westchester Publishing Services. Printed and bound in the United States of America.

Library of Congress Cataloging-in-Publication Data

Names: Meese, James, (Writer on law), author.

Title: Authors, users, and pirates : copyright law and subjectivity / James Meese.

Description: Cambridge, MA : The MIT Press, 2018. | Series: The information society series | Includes bibliographical references and index.

Identifiers: LCCN 2017023974 | ISBN 9780262037440 (hardcover : alk. paper)

Subjects: LCSH: Copyright. | Copyright--History. | Authorship. | Copyright infringement.

Classification: LCC K1420.5 .M44 2018 | DDC 346.04/82--dc23

LC record available at https://lccn.loc.gov/2017023974

For Adrian and Benjamin

Contents

List of Illustrations

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The relational triad.

A number of scholars have argued that recent judicial interpretations of the United States fair use doctrine increasingly recognize an authorial user.

The VCR was part of a broader change around how individuals related to copyrighted media.

Commentary around Web 2.0 ascribed an increasing amount of creative agency to the user.

Damien Hirst standing in front of one of his spot paintings. Credit: Andrew Russeth (CC BY-SA 2.0).

YouTube has become an increasingly commercialized platform and has encouraged the monetization of formerly amateur content. Credit: Andrew Perry (CC BY-SA 2.0).

Canada views intermediaries as users, whereas in recent cases the United States and Australia have viewed intermediaries as users who engage in piratical actions.

Wikipedia was one of the websites that participated in the blackout protest against SOPA and PIPA. Credit: David Holmes (CC BY 2.0).

Protesters on the street in New York. Credit: Guy Dickinson (CC BY-SA 2.0).

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Judicial decisions and broader socio-legal discourses located infringing acts in different areas of the relational triad throughout the copyright wars.

Acknowledgments

The ideas that sit at the heart of this book emerged from my dissertation. They only came to fruition thanks to an incredibly supportive supervision team consisting of Esther Milne, Ramon Lobato, and Jock Given. I thank them for the invaluable mentorship they provided throughout my doctoral studies.

Thanks to Isabella Alexander, Christopher Comerford, Angela Daly, Liz Giuffre, and Katrina Schlunke for suggestions and comments on chapter drafts. I am particularly grateful to Kathy Bowrey, who read numerous drafts and regularly challenged me to produce better work; Alan McKee, who generously read an early draft of this book; and Tim Laurie, who posed a series of productive conceptual questions that helped me refine my argument toward the end of the writing process. I also thank Eva Hemmungs Wirtn, who invited me to contribute to a range of collaborative interdisciplinary endeavors that allowed me to think more broadly about the role and function of copyright. I also extend my gratitude to the anonymous reviewers of the proposal and manuscript. They all offered generous and considered feedback, which was critical in shaping the approach and direction of this monograph.

I am lucky to work among a vibrant and inspiring scholarly community broadly focused on the study of intellectual property, media, and culture. Instead of offering a list of names, I simply want to express my gratitude to all of my colleagues for the advice and friendship they have offered along the way. I am particularly indebted to my colleagues at the University of Technology Sydney (UTS) and at my former institutionsSwinburne University of Technology and the University of Melbournefor their collegiality and support. I also thank the excellent team at the UTS Faculty of Arts and Social Sciences Research Office, Wes Mountain for his excellent diagrams, and Nick Jarvis for his assistance with some last minute corrections. I am especially grateful to all the students I have taught at UTS for their willingness to discuss ideas, challenge my thinking, update my knowledge, and make me laugh.

Thanks to Michael Zimmer and Laura DeNardis for their initial enthusiasm, Virginia Crossman for her careful editing, and Gita Devi Manaktala, Emily Taber, Jess Hernndez, and Susan Buckley at MIT Press for all of their assistance and advice.

For their love, encouragement, and laughter, I thank my parents, my two awesome sibz, and all of my friends. Finally, I want to thank my partner Caitlin for her incessant interest in this project, for offering (and sometimes demanding) to read a chapter draft, and for keeping up the fight when so many would have given up. Youre the best.

I acknowledge the Faculty of Arts and Social Sciences at the University of Technology Sydney, who generously provided financial support that assisted in the preparation of this manuscript.

I also wish to acknowledge SAGE and Litwin Books for allowing some previously published material to be incorporated into this book. Some parts of this book draw on the following articles:

Meese, James. The Pirate Imaginary and the Potential of the Authorial Pirate, in Piracy: Leakages from Modernity, edited by Martin Fredriksson and James Avanitakis, 1937. Sacramento, CA: Litwin Books, 2014.

Meese, James. User Production and Law Reform: A Socio-Legal Critique of User Creativity. Media, Culture & Society 37, no. 5 (2015): 753767.

Introduction: Copyright Law and SubjectivityA Relational Approach

Copyright law is a topic of significant public interest. No longer limited to legislators, entertainment industries, and a handful of academics, Although the average person will not know what section 111 of the Copyright Law of the United States refers to (I picked a section at random, but for those interested, section 111 addresses limitations on exclusive rights: secondary transmissions of broadcast programming by cable), they will most likely have an opinion on the rights and wrongs of online piracy and a general stance on what issues copyright law should focus on.

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