Sep 25 2012
My first post in this series on free speech issues focused on the line between fully protected critical speech and less protected commercial speech, specifically in regard to paid-for positive and sockpuppeted reviews. This post is on the economic concept of free riding and its substantial but often silent impact on intellectual property issues. If it seems like we’re backing up to the First Amendment and core protected speech, we are, in fact, taking the scenic back roads so that we can visit some of the lesser-discussed issues that often get confused and mistakenly identified in discussions of what constitutes “free speech.”
Free riding is a relatively simple concept that has incredibly complex applications in many fields, including intellectual property, which is what I’m going to focus on here. In short, free riding is the act of benefiting from the labor and investment of others, sometimes that of a commercial competitor. Free riding is everywhere, from the discount snack store that opens next to a movie theater to take advantage of the snack-seeking traffic the theater attracts, to the fiction author who chooses a writing pseudonym that will get her shelved next to a bestselling author, thereby potentially increasing her visibility and sales. Porn films are notorious free riders, with works that not only utilize tweaked versions of mainstream titles, but that also often parody those titles, because parody is a fair use exception to trademark and copyright infringement. When Saint Martin’s Press announced the release of Kieran Kramer’s Loving Lady Marcia, the book’s title, cover, and reference to the “House of Brady” generated a significant amount of attention from people who wondered about its possible relationship to the “Brady Bunch” television series. I certainly bought and read the book because of that link, hoping for a spoof or satire of the famous fictional family. At the very least, the author and publisher were free riding off of the popularity of the Brady Bunch series, using the fame and popularity of the series to generate interest (and, one must assume, sales) in Kramer’s less well-known work.
As the term itself implies, free riding contains a judgment about the person or business profiting from the popularity of another. Note this review of Diane Capri’s Don’t Know Jack, the first book in her “Hunt for Reacher Series.” Despite the direct endorsement of Jack Reacher creator Lee Child, the very first review contains this comment:
What also bugged me what that the author is riding Lee Child’s coat tails. I know she and Lee are (according to her) friends. She’s stealing Child’s characters for her own selfish use and is killing them in her amateurish writing. Can’t she do something on her own and not steal Child’s characters. She just wants to be on the Jack Reacher bandwagon, and milk it for what it’s worth.
Despite the ubiquity and, what some argue is the economic necessity of free riding, it provokes what legal scholar David Franklyn calls an “intuitive” sense of unfairness and a “desire to punish free-riding” by some courts hearing trademark and copyright infringement cases. This sense of unfairness can come from a perception that the labor one puts into a creation has a value that should be legally protected, even though the law explicitly rejects such a rationale, instead focusing on the work itself, whether that be a book (expression of ideas and reproduction/distribution of the text protected in a limited way by copyright) or a movie franchise (protected in a limited way by trademark against dilution, confusion, and other ways in which the brand is harmed or weakened). As Supreme Court Justice Brandeis noted in his dissent to the foundational case on the issue of news sharing:
An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute; if property is affected with a public interest, the right of exclusion is qualified. But the fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is, that the noblest of human productions – knowledge, truths ascertained, conceptions, and ideas – become, after voluntary communication to others, free as the air to common use. International News Service v. Associated Press, 248 U.S. at 250 (1918), reprinted in “Ideas and the Public Domain: Revisiting INS v. AP in the Internet Age,” by Andrew Beckerman-Rodau
More than seventy years later, Justice O’Connor wrote:
The primary objective of copyright is not to reward the labor of authors, but “[t]o promote the Progress of Science and useful Arts.” To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. This principle, known as the idea/expression or fact/expression dichotomy, applies to all works of authorship. Feist Publications v. Rural Telephone, 499 U.S. at 340, 349-50 (1991), reprinted in Beckerman-Roadau
I’m trying not to delve too deeply into the extremely complex legal issues, but they are important to this discussion in that when people call out free riding, they often do so with accusations of theft and the labor=value rationale. When the now-infamous “Nora A. Roberts” and “James A. Patterson” books were posted online for purchase, Roberts’s own statement on the incident mentioned the years of labor that went into building her name, as did many of the comments directed at the alleged “poachers.” However, despite the sympathy we might have for this argument, even if Roberts of Patterson have trademark protection on their names, such protection can never – and is even not intended to – prevent all free-riding. There are forms of infringement that are, in part, free riding, but free riding itself is not illegal, nor uniformly undesirable.
In fact, free-riding is one of the ways we, as readers, find books on sites like Amazon. Check out the way Amazon tags Carolyn McCray’s Plain Jane – the URL appears like this: Plain-Jane-Patterson-style-thriller-ebook. Authors free ride, too, when self-publishing or advertising their own books. Some may tag their book with more famous author names to benefit from the association, and in an extreme case, Kobo has a listing for a book called No Easy Day: A Fictional Account of the Mission that “Killed” Osama Bin Laden by Conrad Powell, an obvious attempt to free ride on No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden. Pseudonyms closely related to authors known for certain types of books have been reported, and we routinely see titles invoke more famous works, like many of Julia Quinn’s books, from It’s In His Kiss to Mr. Cavendish, I Presume and The Duke and I.
A number of scholars note that free riding can be an economic good, not only because it can increase competition (the lifeblood of a free-market economy), but also because it can facilitate and promote adaptation and change (think about how technology has altered the way we consume news online, for example). As Andrew Beckerman-Rodau argues, there are times when a free-rider’s entry into the market might “ruin” a competitor, merely because the new competitor is adapting better to changing market conditions: “Attempting to limit such ruinous consequences of competition is problematic because it will typically protect the status quo at the expensive of delaying the inevitable introduction of new ideas and technology into the marketplace.” But entities like the Associated Press are pushing against such logic, going so far as to file suit to protect control over so-called “hot news.” I find this case particularly interesting, not only because of the obvious implications its outcome will have for the way news is reported and shared online, but also because of the way AP’s efforts are inadvertently mocked by the Google results for the case, which rank the paid content story on the suit first, followed by a scraped version of that story at The Passive Voice. This is where one hopes that the courts will be willing to hash out specific circumstances in which scraping is and is not legally permissible, based on the type, amount, and purpose of the material scraped.
Beyond questions of how information flows online, though, and how free riding is embedded in almost every aspect of our commercial experience, online and off, we need to be aware of the concept in regard to our own habits within a book-based community. As I said earlier, free riding is a substantial factor in how books are organized in a retail environment, and how they are packaged, publicized, and advertised. Some free riding is intentional, like the use of a familiar title or the creation of a brand in an author’s total work. Other free riding is inadvertent or serendipitous, as in a reader’s “if you’ve read X, you might like Y lists.”
However, there is also an element of free riding that is even more central to genre fiction, especially Romance, and that is the use of certain seminal texts, myths, and archetypes in the construction of the genre itself. How much of Regency Romance, for example, free rides on the romantic popularity of Pride and Prejudice?
I want to reiterate that free riding is not the same as infringement, although some free riding can rise to the level of infringement, either on a copyright or trademark. I made some of my earlier distinctions, however, to make the point that many of the things that are complained about by readers and authors (“rip-off” books and similar author pseuds) are no more opportunistic than some of the elements that we so aggressively defend in the genre. For example, fan fiction is a form of free riding, and many authors regard it as verboten (and some fan fiction is likely infringing); however, myriad mash-ups and fan fiction novels and adaptations/extensions of Pride and Prejudice are published each year under the Romance moniker, and they are not condemned in the same way. Or what about Colleen Gleason’s Gardella Vampire series, which she promotes as inspired by Buffy the Vampire Slayer? How many paranormal Romances were built on the foundations erected by Christine Feehan? Or the light/lite Historical Romances fashioned after Julia Quinn or Amanda Quick?
Beyond all the ways in which free riding generates commercial competition among authors and books, it is also part of the creative core of the Romance genre, weaving a fabric of familiarity and intertextuality that is often essential for the reader who reads the genre in search of a particular experience, often an experience she wants repeated to some degree across different books and authors.
For me this is a critical point, because it highlights one of the most interesting things about free riding, namely that its ubiquity is eclipsed by the negative judgments attached to it. Because free riding is so often associated with terms like “free loading” or “rip off” or the like, we tend to notice it in instances where someone or something is being exploited in an unsavory way. And yet its benefits – economically and artistically – are just as (if not more) plentiful, even though we do not note those instances as examples of free riding. And because we all benefit from more free competition in our commercial products and more creative freedom within that context, I think it is imperative that we hold ourselves back from condemning certain things out of hand, of using terms like “theft” and confusing the labor that we assume goes into the production of a product or a reputation with the value that the product or reputation has for a consumer/reader. The distinction that Justice O’Connor makes between the Constitutional mandate for IP protection and the rights of the author/creator is critical here – art, like the free market, has a public interest that is inextricable from its growth and vitality. Creative monopolies, like economic monopolies, are undesirable for everyone beyond those in the superior position of the monopolist.
At the same time, though, there are unsavory and ethically questionable incidents of free riding that may not rise to legal infringement. Like the “Nora A. Roberts” and “James A. Patterson” situations – the intentional use of those names to exploit the fame and reputation of the original authors is extremely problematic and potentially harmful to both readers and authors. The point is that context matters, and that the line between “good” and “bad” is not often very bright at all. Most often there will be a mix of benefits and detriments, and sometimes the detriments will be both unavoidable and uneven in terms of their effects. The Book That Shall Not Be Named may ultimately fall into that category. Clearly it free rides on another incredibly famous and profitable series and may ultimately outsell its inspiration. Is that a good or bad thing? That depends on one’s perspective and position – for readers, it can mean a burgeoning of new books, which will, in turn, benefit some other authors, as well. For the original two authors, it creates competition, but it might actually benefit both, as the popularity of each series brings increased attention to the other.
While the effects of free riding are not always superficially obvious, its importance is unequivocal: if we want the greatest opportunity for freedom of creative expression and commercial competition, we need to recognize the critical role that free riding plays in our book communities and consider its benefits and detriments with care and circumspection.