Many forms of pornography are legal in our society because we believe speech should be presumptively free. We allow the Big Beautiful Butts and the Maxims and the Hustlers of the world to congregate on our community’s shelves to preserve the Lolitas and Fanny Hills. Because censorship is a slippery slope. Because we all lose something when we delete a single sentence. Because little social value is created from silence.
Even so, most porn is not commentary, or literary, or socially valuable to anyone other than wankers. But it is protected. Perhaps the free speech shield which protects it should also protect fanfiction. Perhaps we should accept the My Immortals and squid porn to make sure the small percentage of excellently written, critical fics continue to thrive. And because any act of censorship comes with a high price. (Here is an example of one vid which I believe could carry the weight of several hundred sappy Harry/Ginny vids.)
One of the central questions in my research is how much fanfiction I want protected from copyright infringement claims. What I like about using the pornography defense is that it allows me to shift the debate. We as a society permit torrents of pornography to cascade out of Southern California
- because speech is too precious to stopper just because it makes us feel squicky, and
- some drops of those torrents may be socially valuable.
Given that we allow free speech’s shield to protect many discomforting kinds of porn from censorship, what makes a copyright claim strong enough to break through that shield an allow popular authors to call for the censorship of an entire class of writing?
If the feelings of conservative voters in this country are not enough to bring down Playboy, why should the feelings of authors play like a trump card in the intellectual property policy debate?
I believe that any justification for the elimination of an entire category of writing must make it past the porn defense. I am sure authors’ feelings cannot make it. I am still considering whether the economic justifications for our distended copyright term length could make the jump.
“Marriage is an Athenic weaving together of families, of two souls with their individual fates and destinies, of time and eternity – everyday life married to the timeless mysteries of the soul.”–Thomas More