Any copyright lawyer who did not click on the following NYT headline last week was missing out: "A feud in Wolf-Kink Erotica Raises a Deep Legal Question" (NYT, 23 May). Hats off to the headline writers at the venerable masthead.
Notwithstanding the glorious factual context (including a completely unnecessary explanation of "knotting"), the article is rooted in that most fundamental of copyright quandaries, when does inspiration cross the line to -unlawful - copying, or, as it is often summarised, the idea expression dichotomy. With thousands of years of human history, it is not surprising that much creative output has its roots, its inspiration, in works that have preceded it. Whether it is major feature films based on fairy tales, the great art movements of the Renaissance, or riding a trend for a particular dance beat in the club scene, the reality is that most creative works do not stand in isolation, completely original. There are of course some which do, but most are echoes of the past; often very creative echoes, but echoes nonetheless.
When the primary recourse to determine when an echo crossed the line into copyright infringement was the courts, the reality is that relatively few disputes made it that far. The clear cases were settled. The borderline ones dropped. The ones were reasonable people could disagree went to the courts, where the nuanced policy balances inherent in copyright law could be weighed. One did not always find a reasonable person, but at least the system provided a mechanism for someone to make that determination; someone with constitutional legitimacy.
However, as this article so neatly shows, the shift to publication in the online world has created a situation where we are increasingly asking online platforms to make that determination; to be our cultural fair play arbiter. Copyright law is not well suited to that outsourcing. The law (as manifest in most legal systems) involves a careful balance of property rights / incentives and public interest protections. The platforms (understandably) need to architect for scale, cost of implementation, and their own commercial and policy interests. The result: scaled systems which are open to abuse, especially in legal systems (ie most) where there is no easy counter notice system in place.
The current debate arising from this reality is about whether the various internet safe harbours around the world are fit for purpose. But I wonder whether there is a more fundamental rethink of copyright itself required before you get to that? Is copyright still fit for purpose? Can we even agree anymore on what that purpose actually is?
It’s hard to imagine that two writers could independently create such bizarrely specific fantasy scenarios. As it turns out, neither of them did. Both writers built their plots with common elements from a booming, fan-generated body of literature called the Omegaverse.