Caren Irr

I wanted to like this more than I did. Irr examines the writings of Ursula Le Guin, Andrea Barrett, Kathy Acker, and Leslie Marmon Silko, among others, arguing that they evince a particular attitude towards intellectual property that makes them “pink pirates” in search of a “pink commons.”

Irr should have had an IP lawyer review the manuscript. There are a couple of odd and significant errors—US copyright law provides no independent right of integrity/attribution for most authors, and Irr is mistaken to assert that the later-invalidated portions of the Communications Decency Act “used copyright to limit users’ access to pornographic content on the internet.” Copyright had nothing to do with it; the law contained a straight-up restriction on indecent speech.

I also didn’t think that her argument held much weight. It may be that to be a disruptive woman, as many characters in the books she examines are, is inherently to resist current Western notions of property, but it’s not clear that this extends in any particular way to intellectual property, especially to copyright, except by analogy. Even Le Guin, who does have a plot point about ownership of scientific progress, is really writing about ideas and about authorship credit, neither of which are copyright’s focus. Nor does the “parodic” writing of Acker and Silko approach anything that any conceivable copyright law would call infringement, and so it’s hard to say that their adaptations of various narratives say anything at all about the law. (Acker did have a copyright spat with Harold Robbins about her use of his work in an earlier piece, but that’s not the novel Irr analyzes.) Irr at some points seems to use the idea of “commons” to mean “trope” which all authors are free to exploit, but that doesn’t make these women writers different, and the definition of commons is too unclear to have much purchase. Similar fuzziness affects her use of “pirate,” which is particularly confusing in conjunction with the idea of female authors writing towards a “pink commons,” since pirates don’t like the commons. Pirates want to grab stuff and make it their own.

More pettily, I think it’s a misreading of Tushnet, Copyright as a Model for Free Speech, to cite it as supporting the proposition that “rulings in favor of parodic fair use have tended to allow too much liberty to sexual expression that is degrading to women … ; in this argument, a strong defense of copyright would encourage more equitable gender relations by limiting erotic parodies and thereby controlling sexual expression that demeans women.” Rather than taking the position that “copyright should imitate anti-pornography legislation because both suppress ‘bad speech,’” I understood the argument to be that the conventional defense of copyright against First Amendment challenge is that by suppressing the speech of copiers we get more and better speech overall. This is an argument also made by MacKinnon et al. in defense of anti-pornography legislation: pornography suppresses women’s speech, so decreasing the amount of pornographic speech would improve the overall speech environment. If that argument makes constitutional sense for copyright, then courts shouldn’t unhesitatingly dismiss it for other regulations, including anti-pornography legislation, as they’ve done: it at least needs to be empirically investigated. But none of that means that stronger copyright would help the anti-pornography cause any more than anti-pornography law would help strengthen copyright.… (altro)