von Lohmann: More Situated Users

Randy asks for concrete cases where the situated user concept yields insights distinct from traditional doctrinal approaches. Joe suggests fanfic. But I worry that fanfic bows more in the direction of the romantic user than the situated. Bill (obliquely) suggests that "guidebooks" for obsessive fans might be something we would understand better from the perspective of the situated user. I agree with him -- I think the concept of situated users best distinguishes the two cases he discusses.

But let me try two additional concrete examples.

First, there was a recent incident here in San Francisco involving an effort to stage "Once More With Feeling," the one-and-only musical episode of Buffy the Vampire Slayer. (Here, of course, I am chumming the waters for as-yet-silent Mobber Rebecca Tushnet, a fellow Buffy fan.)

It's vaguely embarrassing to admit that there was a general buzz of excitement at SFist HQ when SFist Jon found out that counterPULSE Theater was staging a live-action version of the Buffy The Vampire Slayer musical episode, "Once More With Feeling." Set for performances this weekend and next, tickets sold out pretty much immediately and geeks of all stripes (musical theater geeks, comic book geeks, Star Trek geeks, Joss Whedon geeks, and your everyday run of the mill geeks) began lovingly sheathing their precious original tickets in durable plastic covers to preserve forever.

Well, where geeks go, lawyers are soon to follow -- last week, counterPULSE got an angry letter from Fox TV's attorneys, demanding that they cancel all the shows or face a copyright and trademark infringement lawsuit. Feeling as if they had no choice, counterPULSE has now cancelled all the Buffy shows (which they are now referring to as "the Halloween shows," or the "Uffy" shows).

Traditional copyright doctrine views this as largely an open-and-shut case of infringement. The economic user has little to add, beyond noting that there is a market for this sort of thing (see, e.g., the Gilligan's Island musical toured for 12 years!) and that the market belongs to the rightsholder (not the creator -- the creator of Buffy, Joss Whedon, gave his blessing). The romantic user doesn't much care, as there is nothing "remix culture" here. This was fans trying to be slavish to the original (though we all wondered how they would handle the oblique lesbian sex reference that was in the episode!). Ditto the post-modern user. I suggest that each of these accounts is missing something important, something that the fans who put on the show and who bought the tickets understood viscerally about participatory culture, about creative play.

Example #2: We have recently witnessed a flurry of new announcements about authorized, for-fee, "on-demand" ways to watch current television shows. Apple is selling last night's episode of Lost for $1.99. Comcast and DirecTV have announced partnerships with CBS and NBC to do similar things.

What does this mean for the future of unauthorized home time shifting using TiVos, Windows Media Center PCs, and MythTV boxes? The economic user says that what was once a fair use should gradually be restored to the rightsholders as transaction costs dissipate. The romantic and post-modern users only care indirectly, to the extent that the DRM associated with these new offerings may impede "remix culture" or "semiotic disobedience" (again, tip o' the hat to Sonia Katyal for the latter coinage).

I'd suggest that if you tried to take away people's TiVos and force them all to pay to watch last night's episode of the their favorite program, you'd see a backlash that was not simply about an unwillingness to pay. I'd also suggest that this development would have important implications for the future course of innovation in the home media technology realm, as it would in effect return us to a "pre-Hush-a-Phone" world where only approved devices were entitled to connect to our television culture.

Comments

[Jim Speta]

I'm not sure how the second example interferes with play. (I confess, however, that I'm still struggling to define play in a way different from transformation, so my failing may come from that place.) In any event, I currently get from iTunes everything that I used to have from 'mix tapes.' I find it hard to think that, in the future, when we download our shows (the notion of TiVo'ing something for later viewing/storage strikes me as a transitional phenomenon, though it might be a decently long transition), the content providers won't allow multiple views, etc. But, of course, if there are copyright optimists and pessimists, I'm a market optimist.

Maybe there is a baseline question, too: it's true that technological restrictions may interfere with 'maximal play.' But, as Joe has said, it's a balancing act, and it seems to me that there's more play now than before, even with copyright.

[Fred von Lohmann]

I'm not sure how the second example interferes with play.

I share your view that the line between transformative and nontransformative play is slippery, but simply respond that it's only the romantic user who thinks that's the principally relevant line. The great thing about a "maximally playful" PVR (see, e.g., MythTV) is that it then allows you to do other things with the recorded programming. Not every such use is necessarily "transformative" in the traditional fair use sense. So, for example, I've been desperate to take the sound effects that accompany the "This Week in God" segment featured in The Daily Show with John Stewart and turn it into the ringtone for my phone. Will the market serve my niche desire? Maybe, maybe not. Similarly, I've always wanted to go back through Buffy the Vampire Slayer episodes to extract my favorite bits of dialog. What would I do with them? Hell, I'm not sure. But I want them! Again, I'm not sanguine that markets will ever serve such a amorphous, niche desire.

Transformative? I'm not sure. Playful? Surely.