Illegal lIterature umpRoh.indd 1 27/10/2015 3:10:16 PM This page intentionally left blank ILLEGAL LITERATURE Toward a Disruptive Creativity DaviD S. Roh University of Minnesota Press Minneapolis London umpRoh.indd 3 27/10/2015 3:10:16 PM An earlier version of chapter 1 was published as “Two Copyright Case Studies from a Literary Perspective,” Law and Literature 22, no. 1 (2010): 110–4 1. 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. Literature—Philosophy. 2. Literature and technology. 3. Creation (literary, artistic, etc.). I. Title. PN45.R577 2015 801'.3—dc23 2014043041 Printed in the United States of America on acid- free paper The University of Minnesota is an equal- opportunity educator and employer. 21 20 19 18 17 16 15 10 9 8 7 6 5 4 3 2 1 umpRoh.indd 4 27/10/2015 3:10:16 PM CONTENTS Prologue Between Analog and Digital Cultures vii Introduction Accretive 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-S ource Model: Versioning Literature and Culture 96 Epilogue On Being Accused 121 Acknowledgments 129 Notes 131 Index 157 umpRoh.indd 5 27/10/2015 3:10:16 PM This page intentionally left blank PROLOGUE Between Analog and Digital Cultures i belong to a generation of scholars 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, isn’t 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 creators—t heir 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 that’s a false binary, a culture war based on an either– or construction that ignores the history of cultural development. • vii umpRoh.indd 7 27/10/2015 3:10:16 PM 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 adolescence—c omic books and computers—i llustrating 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 order—s ome must have been from future story lines that I simply hadn’t reached yet. However, I noticed that the thematic emphases were too different or had canonical inconsistencies—s ome 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 wasn’t 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 wasn’t 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 viii • PROLOGUE umpRoh.indd 8 27/10/2015 3:10:16 PM 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 we’d brought the machine home—a twenty-f our-h undred 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-u p 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-a lone 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-s ource, freeware, or shareware programs. Suddenly my computer’s 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 book—t he law and the network as infrastructural determinants. I ini- tially thought that I’d 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 PROLOGUE • ix umpRoh.indd 9 27/10/2015 3:10:16 PM