Tips for Getting Started on the Intellectual Property Case

        Yes, this case starts out as a more complex one than the other two, but the complexity has been building steadily.  First, we had an apparently straight-forward news report about Baby Gabrielle, a report that turned out to bury all sorts of complications and dilemmas.  Then we had conflicting opinions and various narratives of a killing, originating at different times, as a case unfolded in the press.  This case poses two different ways of looking at the ownership of ideas, and you can choose either of them, or both of them, as the starting place for your paper. 

        Generally speaking, most people in America would agree that you own your own ideas, and that written forms of original thought are likewise your property.  However, in practice things are not so clear cut.  As usual, in any academic analysis, you should survey the case's facts until you are sure you understand them clearly, and you should determine the parties to the case, and the interests, reasoning, and probable reactions they will exhibit.  Then focus, focus, focus your attention on the specific element of the case which most interests you because it offers you a chance to contribute to our understanding of it, or even to a partial solution of problems in it.  You do not have to solve all the problems generated by these cases, and it's perfectly fine to ask "where am I in this case--how will it affect me in the near future?" if you are having trouble connecting.  See the last paragraph if you are in doubt.

Sites of Interest for Case 3: examples of public data available on critical American infrastructure; examples of fan fiction Web sites and creative satire of copyright-protected images; U.S. Copyright and Patent information Web pages.

"Harry Potter and the Copyright Lawyer":  In the "Harry Potter" article, we see so-called "creative writing" in a light which helps expose what a complex thing creativity can be, and what an odd category of writing "fiction" always has been.  Creative behaviors always mix old and new things.  What happens when someone reasonably can claim ownership of the "old" part of someone's "new" creation?  This could happen easily in the writing of software that has to interact with other software programs, or the creation of web-based businesses or artistic sites which incorporate links to or even pieces of other web sites' creative output.  Then there's "fiction," neither "a lie" nor "the truth" or mere "historical fact," but something that blends elements of all those categories of information. 

        For instance, you could write a novel in the form of an English 104 paper, couldn't you?  OK--a short story.  But now that I've put that idea into this web page, would I own a piece of your short story if you wrote it, after reading my sentences?  Or is my mere assertion that such a story could be written an insufficiently "creative" act to give me ownership of all English-104-paper short stories?  You might well answer that, because I am your teacher and you are paying me for my instruction, you own what I teach you.  Is Rowling a "teacher" for the fan fiction authors who read her books?  How much do they pay for a Harry Potter novel, and does that price constitute a kind of "tuition"?  You could help the fan fiction writers by suggesting ways to protect their rights by defining what creative activity they deserve to be rewarded for, or you might argue for limiting Rowling's right to profit from the Harry Potter empire beyond the considerable fortune she has amassed from sales of the novels she writes.  What kind of "damage" can a relatively poor person like Teresa do to a fabulously rich person like Rowling?  Above all, do not assume that because some fan fiction authors are content to remain not-for-profit amateurs, others will not use the same techniques to make huge profits using Rowling's characters, settings, and plot devices.  See this New York Times article about the Asian market in Potter forgeries surrounding the publication of the last book in the Potter series in the summer of 2007, and Paul Collins' Believer article, "Namejacking: Seven Books That Even Their Authors Don't Recognize," about the general phenomenon of "allonymic literature."

        If J.K. Rowling's interests arouse your concern because you would want the originator of the series to keep her rights to her work, or because you would not want opportunists to ruin her creative world for you, you have several ways to help her.  You could help explain what dangers are faced by the creative mind (like yours!) when its readers take its ideas and use them for their own purposes.  How long did it take Rowling to write the first Harry Potter novel, and under what conditions did she labor to complete it?  That information is readily available, but the article never refers to it.  You might use it to show that Rowling's efforts to create something new are different in kind from the efforts of the fan fiction writers who merely adapt and play with her creations.  That could enable you to say things about the fan fiction writers' rights to their creativity being different from Rowling's rights.

     If you are interested in the issue of fiction and ownership of characters and situations, modern culture will provide lots of additional examples to test your thinking about the relative merits of the parties to the "Harry Potter" part of this case.   Famous court cases have tested authors' ownership of the characters and situations they invent, and they not infrequently win on the basis that their creativity has produced a protected form of intellectual property, a set of fictional identities and localities that cannot be "borrowed" by other writers.   For a start, you could look up The Wind Done Gone case, which involved Alice Randall's sequel to Margaret Mitchell's very successful Civil War novel, Gone With the Wind, a sequel told from the point of view of Mitchell's African-American slave characters.  You also can investigate the ups and downs of the "James Bond" franchise, owned by the descendants of Ian Fleming, the Cold War spy character's creator, who hire specially licensed authors to write further adventures of the character long after the creator has died.  Now that you have some instruction in research, you know how to get answers to questions about these issues, and how to get help if your first attempt to get answers is not satisfactory.

"Dissertation Could Be Security Threat":  Sean Gorman has spent years of graduate studies creating a doctoral dissertation that is valuable to him in many ways.  First, it represents the cumulative efforts of his best and most original thinking (whatever his professor may say!) and may be the biggest, best thing he has ever written.  Dissertations take many semesters to complete, so even as measured by the person-hours Gorman has invested, the document has value to him.  Further, the Ph.D. dissertation represents an essential component of a "credentialing process" by which he will be certified as a professional in his field.  The doctorate is a required degree for university teaching in most subjects, and for doing independent research using grant funding.  Were his dissertation to become unpublishable, he would lose all that work and his career, all wrapped up in one document.  Rarely is the cost of intellectual property expressed in such a concentrated form.

        What kinds of knowledge are too dangerous for a culture to allow them to be published, no matter how much effort was put into creating them?  Censorship has an ancient history.  Kings and emperors have censored publications on political grounds because they believed the documents threatened their powers and public order.  Religions have censored publications on spiritual grounds because they believed the documents threatened the spiritual well-being of believers.  Even democracies censor documents that the public believes will damage the culture.  In this case, many intelligent people have looked at Gorman's dissertation and believed it to be too dangerous to be in public circulation.  Is that a sufficient test to allow the government to ban its publication?

        As in the "Harry Potter" case, the Gorman dissertation case can seem an "either/or" fallacy unless we admit there are various alternatives between completely free access to or power over intellectual property owned by others, on the one hand, and intellectual property as a kind of fortress, immune to all interference.  What are the "middle ground" alternatives in each case?  Could some of them preserve what is important about Rowling's, the F-F writers', or Gorman's rights while safe-guarding the rest of us?  Such solutions may well involve changes in the laws of "copyright," literally, the right to make copies of a document.  The fan-fiction does not harm Rowling until it is copied from the writer's computer to the Internet web page, and Gorman's dissertation does not harm Americans' safety unless he publishes it in at least one copy that is not on his personal laptop.  How would your solutions to either or both problems affect copyright?  If your solution were extended as a rule of law, might it do more harm than good?  (Such reasoning is sometimes called considering "unintended consequences.")

Copyright:  Copyright protection protects even this web page from being copied, except for a limited set of legitimate purposes, for a given number of years after the writer finishes writing it.  Traditionally, authors indicate copyright claims with a coded message like this: © 2003, Arnold Sanders.   Usually, copyright protects documents like books or articles, and art works.  Some kinds of intellectual property are subjects of hot debate about whether they are patentable or copyrightable, especially software applications.  In the United States, copyright lasts for authors' lifetime plus seventy years, and it can be extended by authors' heirs after the authors die.  The obvious source for information about copyright is the "Copyright Basics" page on the United States Copyright Office web site.

Patent:  Patent protection protects inventions that do things, or that do things better than they have been done before, including growing new plant species.  As you will see when you read the "Copyright Basics" page, Sean Gorman's dissertation cannot be eligible for copyright because it is not a work of literature.  It also uses for its database a mass of publicly available information, rather than inventing new information.  The intellectual property Gorman can claim to own consists of the computer program he wrote to manipulate that public data, and the inventive way it combines that data to produce new and useful ways to do infrastructure mapping.  The obvious source for information about copyright is the "Patents" home page on the United States Patent and Trademark Office web site.

        As a Goucher student, you also might be interested to know what your college's Intellectual Property Policy currently is.  Colleges and universities can operate under policies that are very generous to employees and students (i.e., you own everything you write or invent), or very, very stingy (i.e., the college or even the instructor owns everything you write or invent).  Goucher's position, at the moment,  is on the generous side.  I was on the task force that helped develop the policy in early 2003, so I could be an anecdotal source of information, but you also might want to consult the college's attorney.  Nevertheless, as you write, you might want to think for a bit about who owns what you are typing and why.  How can you turn this case's pile of "information" into some intellectual property you can claim to own?  That is the art of academic writing.

        Think about "intellectual property" as a wide-ranging cultural issue that matters to our "information economy" as much as land-ownership, control of taxation, and personal independence mattered to the country in 1776.  If you do not own your own ideas, how can you sell them to support yourself.  If ideas cannot be shared without putting price tags on them and hiring lawyers to shepherd them from place to place, what happens to the creative exchange of information which our culture depends upon to invent new things, like personal computers and the Internet, for instance.  In inventing the Internet, have we accidentally created something that will destroy our ability to invent anything else as powerful and good?