Session 5 | Martin Fredriksson (Linköping University, Sweden), Moderator
Open Source Intelligence: Counterinsurgency, State Secrets, and Small Novels
Joseph Slaughter (Columbia)
Commentator | Catherine Bond (University of New South Wales)
Operation of IP in the context of torture, undertaken as part of the war on terror. Stories in which someone’s blood leaks through the lines. Justification for torture in logics of IP? Torture forces person to narrate—victim is compelled to become an author, and then ownership of their words is attributed to them in order to be subjected to a penalty imposed by national security law. Law: but the fixation, if it exists at all, exists under the authority of the state—so maybe not an author in © law.
Documents released as heavily redacted. Jenny Holzer reproduced the documents in silkscreen. The Redaction Paintings are subject to ©, so you can reproduce the redacted images but not the Holzer images—a perverse use of ©; words generated by torture victim are in the public domain. Images themselves do have some originality added by Holzer.
Counterinsurgency manual: released by gov’t as open source, but gov’t appropriated a number of sources w/o attribution and credit. Use of narrative w/in the manual itself, and how narratives can be adopted in counterinsurgency; also issues of academic appropriation/plagiarism. What’s taken is probably not substantial, so the issue is not © but plagiarism/control of the narrative.
In Australia, a Guantanamo Bay detainee sought to tell his story after release. Institutional response under nat’l security legislation—in the US we said that was a matter of national security. David Hicks: arrested in Afghanistan and held for 6 years. Sleep deprived, medicated w/o consent, sexually assaulted, and beaten while conscious and unconscious. In 2007 pled guilty to material support for terrorism & returned to Australia where he served time in prison before being released. Subject to control order by federal police that expired in 2008; in 2010 Random House published his autobiography, which Austl. prosecutors then sought to suppress. Didn’t claim national security, but proceeded in NSW against him under the Proceeds of Crimes Act to stop him from benefiting from the profits of the book. Torture victim seeks to reclaim the narrative using © as a means to do that/rebuild life by telling their story. State doesn’t seek to disrupt the edifice of ownership but use a law designed to stop drug dealers (well, that does seem like disrupting the edifice of ownership). Proceedings proved difficult b/c the plea may not have been lawful. In 2012 the prosecutor dropped the case claiming “new evidence” which was not disclosed.
Cuts, seams, and stitches b/t traditional IP and national security, both of which claim property rights over some of the same texts. Conceptual baggace of IP and national security is not peculiar to the US. In Australia, the documents Holzer used would be protected by Crown copyright, so Holzer’s redaction paintings wouldn’t be allowed unless limited exceptions applied for 50 years. Does that matter to the paper’s story of IP?
Slaughter: Torture memos—academic sources repurposed into guidance for how to torture, but then the bibliography of openly available work was redacted. Novel from Guatemala—incorporated counterinsurgency manual from US that circulated freely in Central America. Manual instructs military that counterinsurgency is all about narrative: narrative construct of truth, war, etc. Military moves all military tactics into other manuals; the counterinsurgency manual is full of narrative strategies (and also full of plagiarism). Presumptive classification: gov’t claimed that people who were tortured therefore knew the sources and methods of CIA operation and could not discuss their own torture or they’d reveal CIA secrets.
When you tell scholars who don’t believe in authorial intent about an instance of plagiarism, those very scholars go straight to “what were they thinking?” Humanistic desires for narrative at moments of crisis.
David Hicks: There are published US diaries that are published with redactions. Lawyers are making a point about what you can’t say even in your own diary. Jurisdiction of course makes a difference.
Q: Manuals seem to be uncopyrightable in the US. But able to be copyrighted int’lly. Has the US tried to get national treatment outside the US? How does lack of © affect their creation?
A: classified materials are commonly designated “no foreign gov’ts” even when declassified. Haven’t thought about that Q outside the US. Maybe in a pre-internet era there could be a legal strategy, but no examples now.
RT: (1) Common-law ©/fixation issues—if it’s not under the victim’s authority then there’s still a common-law © that arises. Cf. Garcia v. Google: story of the dupe/vulnerable victim, another person connected to the war on terror who’s put at risk by being fooled into creating a work. If it’s still the victim’s narrative—what counts as authority of the author? (2) Go beyond © to IP? Orphan Black and “we’re property.” Large sf literature on owning people: contrast to patent discourses where it is almost taken for granted that you can’t own a person—v. prisoner as the slave of the state. The prisoner creates a point of pressure for the liberal patent/non-ownership of persons story.
A: gov’t did claim to own these people—but the defense distinction was that they couldn’t own these people’s memories and therefore they could testify about torture/complain about torture. Torture isn’t just forced confession, but forced confession that must be redescribed some way as a voluntary act of will, according to the logic of torture. Thus the fixation is considered by the gov’t to be under the victim’s authority.
Q: consider the exclusionary rule as a point of contrast.
A: Gov’t can also block introduction of testimony on nat’l security grounds.
Q: is the liberal humanist subject at the core of your project? If the state is the referent for power plays, who is power exercised on? Right to have stories told is not just state exercising power, but a way to exercise power against the state—to refuse to tell indigenous knowledge, for example.
A: strategic revival by defense lawyers of liberal individual who has rights to privacy/narrate when those are clearly not the circumstances under which they’re being prosecuted. Your use of “right” may be the liberal subject sneaking back in; the lawyers all use rights talk b/c there’s almost no other language to deal with this.
From Intellectual Property to Openness? On the Potentials of Literature in Printed Books and in Digital Media
Thomas Ernst (University of Duisburg-Essen, Germany)
Commentator | Michael Madison (University of Pittsburgh)
German discourses about literary authorship in the digital world, destabilizing German © law. What is a work? The finished and final output of an author, distinguished from the author and from the recipient/reader. Different theories define and weigh the relations between these three differently. 1800: era of first implementation of © law in Germany. 2000: digital media changes started to have sustained effects on literary production, distribution, and reception.
1765-1790: age of reprints. Since then, protection of IP established. German law focuses on protection of individual acts of origination. Personal mental creations = works. Fichte: the difference b/t author and reader, and book as a container of ideas.
2000: nonlinearity, interactivity: allow experimentation w/ new forms of production, distribution, and reception. Undermines German ideas, including the idea of the book as the salable container. Idea of clear gap b/t author and reader also disappears: the “prosumer.” Changes the relationship to the market: active participation in designing the products they want.
Phenomena include (1) “Twitterature”—short stories that fit on Twitter. Hybrid text: the hashtag includes both the stories and the comments of readers/interactions w/author—new space of interaction; lose the boundaries of the work. Literature as communication network. (2) Crowdfunding. (3) Fan fiction: largest German archive distinguishes between fan fiction and “free works”/Freie Arbeiten. Community: you write the text to be commented on. Author-readership. (4) Social reading. Reading groups online. Can pay a little more to get a digital version with comments by certain other people.
2010: Axolotl Roadkill: author was hailed as a wunderkind, until a plagiarism scandal erupted—unattributed quotations from blogs. Internet, plagiarism, etc. are terms put in contrast w/ authorship and originality. But the text is part of a digital remix culture, not part of an established literary culture. Text tells story of 16-year-old girl’s attempts to give her life meaning through excessive behavior/drinking/drugs/sex. Cites Kathy Acker, known for her intertextuality; chapter titles are quotes from popular films etc. Character says: my work and my theft become authentic as soon as something touches my soul. It doesn’t matter where I get things from, it’s important where I take them—slightly older male who inspires the narrator. Metafictional moment: mixed work becomes authentic if assembled persuasively: declares its status clearly.
Some reactions were downright furious. 4th edition, resolved “legal issues,” book appeared w/ appendix: sources & acknowledgements, listing 20 references to a blog; 22 unmarked quotations of other authors, even private correspondence. Transforms them into references—from literary work to scholarly work. This interferes w/literary poetics.
Madison: The ideas of authorship, work, reader even historically has had more fluid meanings—Adrian Johns. Swing of the pendulum rather than something completely new. Political framings of the question can help as well as conceptual.
Paper relies heavily on the sense of German identity, and book culture contributing substantially to that sense. Very interesting observation worth pursuing in greater depth: to what extent are Fichte’s concepts, and the debate even today, the product of conditions in “Germany”—cultural and national identity.
Hypertext was made controversial in © about 20 years ago, so there was a flurry of anxiety about the meaning for © protection, infringement, joint authorship, contributory liability. In general that anxiety has passed. These Qs still have some problematics but people are no longer freaking out or wondering what to make of the fundamental structure of © given the internet—more normal science these days.
Abstract/general question of aesthetics of literature may be less interesting than pragmatics of these in particular institutional contexts. The idea of a stable artifact is still meaningful to some authors, communities of readers, institutions represented in the marketplace/culture. Other places, stability is contested or abandoned entirely. Which are the circumstances in each category?
Everything is always changing: McLuhan said the same thing—changes are not necessarily as discontinuous as they appear to people in the moment.
Axolotl Roadkill: (1) extremely rambunctious appropriation seems problematic; (2) also failure to cite sources, leading to a shift in genres in later edition; (3) accusation is accusing her of not having taken responsibility for the work she produced—an inward directed critique. Consider the quotation she gave in interviews about her own process, which was it didn’t matter where people got their process but only mattered where they take it—manipulating external referents to advance her own project, rather than taking them inside herself. Thus the critique is that what she’s doing doesn’t advance the understanding of art. A true artist is personally and internally owning the work (that is, this critique is not a condemnation of all “poaching”). Traditionally minded, but not necessarily about property or limited to digitization/processes of collaboration.
Institutional focus might change analysis versus focus on individual reactions. Publishers’ reactions: a break w/tradition of literary studies, as well as break w/legal system’s resolute commitment to individual liberal ideal of author and reader. How © system engages w/culture using institutions as the primary tools of analysis. (Julie Cohen, among others, has done work of this sort.)
Ernst: Is this new? On the level of media theory/discourse studies. There’s a way of performing authorship in different discourses/media situations that can help us analyze what’s going on, e.g. interacting w/ readers on Twitter.
Q: Gender theory might help understand the situation of this German wunderkind.
A: she was forced to apologize to other authors. Male critic first lionized her, then another male critic targeted her for takedown.
Jaszi: consider authors coming together in organized groups and attempting to use law to inhibit a wide range of digital possibilities—Authors’ Guild litigations against HathiTrust, Lexis, etc. Self-designated representatives have things to say that sound a lot like the Leipzig Declaration criticizing Axolotl Roadkill. Might map performance of authorship/collective performance of authorship and get some interesting results.
A: many such examples—“we need a law against this” pops up every few months.