How intellectual property laws stifle popular culture.
On August 19, 1999, in Los Angeles, a mild act of censorship took place. Twentieth Century Fox, the colossus behind the cult series Buffy the Vampire Slayer, sent a letter to Alexander Thompson, a 35-year-old data processor and devoted Buffy fan. Thompson had spent countless hours transcribing each episode of the show, complete with descriptions of the scenery and action, and had posted the results on the World Wide Web, to his fellow fans' delight. Joss Whedon, the show's writer and producer, had praised Thompson for the job he'd done, even autographing one of the transcripts.
Whedon, however, did not own the copyright to his work. Fox did. And Fox, the company told Thompson, "has a legal responsibility…to prevent the unauthorized distribution of its proprietary material."
In other words, Thompson had to remove his transcripts from his Web site or face a lawsuit.
As far as repression goes, this no doubt sounds trivial. Fox is clearly being stupid–Thompson's transcripts were a resource for fans, not a substitute for the show–but the company was within its legal rights as the owner of the Buffy program. What it did was obnoxious, silly, and bad business, but it's hardly a threat to free speech. Right?
Don't be too sure. There is an inherent conflict between intellectual property rights and freedom of speech, a tension between your right to control a story you've written and my right to use it as raw material for my own work. Thanks to two trends, that tension is turning rapidly into a collision–one where more than the convenience of online Buffy fans is at stake.
On one hand, as information has grown more valuable, copyright and trademark law has become increasingly restrictive. At the same time, there has been, in the words of MIT media studies professor Henry Jenkins, an "explosion of grassroots, participatory culture," a new high-tech folkway that not only draws on pop culture but appropriates from it more easily than ever before, and disseminates itself on a wider scale.
Now the companies atop the culture industry, from Fox to Disney to LucasFilm, are starting to notice this alternate universe of fans, parodists, and collagists. They don't quite understand what they're finding, and for the most part they don't like it. And they've got the government on their side.
In theory, a copyright is simply an incentive to create: Compose something original, the Constitution says, and we'll make sure you get a chance to profit from it. Trademark law is even simpler. It's a protection against fraud and consumer confusion, a recognition that Nike shoes are a particular product, and that if I start selling some homemade slippers as "Nikes," I am deceiving my customers.
Copyrights, unlike trademarks, have always posed problems, even if you think they're necessary. They are, after all, government-granted monopolies; as such, they should be strictly limited and carefully watched. If someone wants to extend their reach, he'd better have a compelling argument for doing so, and lawmakers should approach his proposal with due skepticism.
Instead, Congress acts as a rubber stamp for copyright holders, especially the big campaign donors in the entertainment industry. At the dawn of the republic, copyrights lasted for just 14 years and could be renewed for another 14. This period has been gradually extended, especially lately: It has been lengthened 11 times in the last 40 years, most recently by the Sonny Bono Copyright Term Extension Act of 1998.
Before the Bono Act, new or recent works copyrighted by individuals were protected for life plus 50 years. Afterward, protection lasted for life plus 70 years. Corporate-owned copyrights were also extended by two decades, to 95 years, as were all copyrights for works produced before 1978. The push for the new law was spearheaded by Disney, whose most famous character, Mickey Mouse, was scheduled to enter the public domain in 2004, with Pluto, Goofy, and the rest following shortly thereafter. Disney is notoriously jealous with its cartoon cast: In one of the most famous copyright cases of the '70s, it successfully halted sales of Air Pirates Funnies, a risqué underground comic by Dan O'Neill featuring the Disney characters, even though the comic was clearly a Mad-style parody.
The prospect that just anyone would be allowed to produce his own Mickey merchandise was evidently unthinkable at Disney HQ, and the company exploited its connections to get the copyright extension passed. The very day Senate Majority Leader Trent Lott became a co-sponsor of the bill, the Center for Responsive Politics reports, the Disney Political Action Committee donated $1,000 to his campaign chest; within a month, it had also sent $20,000 in soft money to the National Republican Senatorial Committee. And Disney had help: Other entertainment giants, from Time-Warner to the Motion Picture Association of America, joined the lobbying effort, as did some well-known songwriters, such as Bob Dylan, and heirs of dead songwriters, such as George and Ira Gershwin.
The irony was rich: Disney, which draws heavily on public-domain characters and stories in its own products (Aladdin, the Little Mermaid, Mulan), was fighting to keep the cultural commons closed. And Dylan regularly bases his work on the chord structures, and sometimes lyrics, of older folk songs–"The Girl from the North Country" on "Scarborough Fair," "I Dreamed I Saw St. Augustine" on "I Dreamed I Saw Joe Hill Last Night." Yet there he was, demanding royalties from his music until 70 years after his death.
Meanwhile, the Gershwin heirs, who didn't even write the songs that keep them wealthy today, found themselves essentially arguing that the 20-year extension would somehow be a further incentive to their dead ancestors' creativity, a claim that smacks of either spiritualism or desperation.
"It's a joke," declares David Post, a professor of law at Temple University. "It's a disgrace. There is no better example that I can imagine, literally, of Congress caving in to small, highly focused special interests. There is no conceivable public benefit from the additional 20 years. Zero." Copyrights don't bother Post, but retroactive extensions of them, which by definition cannot affect the original creator's incentives, do. "Congress was bought," he continues. "This was the sale of legislation in the crudest form. They should be ashamed."
If the Bono bill's intended consequences are bad, its unintended effects are arguably worse. When it's unclear who owns a copyright–for an old B movie, say, or a cult writer's early short stories, or an ancient R&B record–that discourages companies from reissuing the work, even if there's considerable interest in reviving it. The potential legal hassle is simply too daunting.
Last October, the U.S. District Court for the District of Columbia rejected a suit alleging the Bono bill was unconstitutional; the plaintiffs have appealed the case, and it should be heard again by next August. One plaintiff, 56-year-old Eric Eldred of East Derry, New Hampshire, operates Eldritch Press, a popular Web site filled with digitized editions of old volumes, ranging from H.L. Mencken's In Defense of Women to books about boats. "I'm not interested in putting up works by Stephen King," he says. "I'm interested in books that are down a couple of tiers: books that are interesting, but that publishers don't find profitable to reprint." The new law threw some roadblocks in his way.
Consider Horses and Men, a 1923 collection of short stories by Sherwood Anderson. The book has long been out of print; the rights to it are owned by the Sherwood Anderson Trust, which makes money by putting out scholarly editions of Anderson's work. Many of the stories in Horses and Men will not be reprinted in any of their Anderson anthologies, and those that are will often have the punctuation "corrected" to reflect modern usage. Eldred would like to put the original book up on his Web site, so people can read the out-of-print tales and so they can compare Anderson's original punctuation to the new version. He expected the book to pass into the public domain in 1998, allowing him to do just that. But thanks to the Bono bill, the copyright won't expire for another 20 years.
And that's no aberration. Another 1923 book, Robert Frost's New Hampshire, has been out of print for more than 70 years; several of the poems have not been reprinted, and many of those which have been reprinted now include–this seems to be a theme–different punctuation marks. (It's also, Eldred notes, an attractive book in itself, with handsome woodcuts he'd like more people to see.) "Our real battle is not with the traditional publishers," Eldred explains. "It's not with people who want to make money publishing books. It's with people who want to lock up books."
A law that keeps old books out of the public domain does the same for old movies. One vocal opponent of the copyright extension is Sinister Video, a small company that specializes in reissuing old exploitation flicks. (See "Mail-Order Movie Madness!," April 1999.) "There are literally thousands of works, particularly in the area of motion pictures, that are sitting on the shelf waiting for the freedom of the public domain," the company noted in a statement. "The large companies that own the rights to them have no intention of ever making most of those works available again on a widespread basis." Thanks to the Bono Act, "Copyrights on all works will be extended so that the major companies can continue to exploit the small percentage of works that are still profitable to them–the rest be damned!" Damned indeed: In 20 years, a lot of those "protected" movies will have physically disintegrated. (For that reason, a film preservation group and a movie archive have joined Eldred's suit against the Bono law.)
For those who can't wait for those movies to enter the public domain, there is a loose distribution network that might satisfy them. But it exists in a gray area: not quite illegal, but always subject to the possibility that someone will decide a tape violates his copyright. For the most part, the videos are available only by mail order, though some specialty stores carry them as well.
One such store is Cinefile Video, a film buff's nirvana located next to Los Angeles' famous Nuart theater. Founded last May by four refugees from another video shop, Cinefile carries tapes that range from obscure industrial films to footage from Orson Welles' unfinished Don Quixote, from Italian horror-porn to classic Soviet silent cinema, from ancient TV specials to Grade Z movie trailers. "We'll buy anything that we find that we know you just can't find anywhere else," reports co-owner Hadrian Belove, "even if I don't particularly like it. There's a certain respect I have for the archival value of having such really weird tapes."
Most of the store's wares are regular copyrighted tapes, though many of them have gone out of print. Some have copyrights that have expired; others were never copyrighted; with others, no one's sure who owns the rights at all, and someone decided to release the films anyway. Some are foreign movies that don't have official distributors in the United States, thus giving Americans the right to sell dubs of them on demand.
And then, Belove concludes, "There are certain companies that own things and purposefully don't release them, either because they think they're embarrassing or–who knows?–because of some vindictive streak." Disney, for example, will not allow anyone to sell or rent Song of the South, a 1946 film of Uncle Remus stories that is periodically damned for its alleged racism. It is indisputably illegal to carry those movies, and Cinefile will not stock them. Belove does have his own copies of several such tapes, however, and often personally lends them to his store's customers for free–thus moving the transaction out of the marketplace and out of the reach of the company lawyers.
Song of the South, of course, would be covered by a copyright whether or not the Bono bill was in effect. Disney's efforts to suppress it indicate that the trouble with intellectual property laws goes deeper than the length of time a work can be monopolized. It can erode free speech to monopolize a work at all.
The most dangerous thing about restrictive copyright laws isn't what they do to old works. It's what they do to new ones. Copyright has traditionally been tempered by the doctrine of "fair use," which allows a limited amount of appropriation for the purpose of parody or criticism. (That is why book critics, for example, do not have to get permission to quote the texts they are reviewing.) Fair use is not dead: In the 1994 case Campbell v. Acuff-Rose Music, Inc., the Supreme Court ruled unanimously that the rap group 2 Live Crew had the right to parody the old Roy Orbison hit "Oh, Pretty Woman," declaring that "a parody's commercial character is only one use to be weighed in a fair use enquiry," and that the new record was clearly "commenting on the original or criticizing it, to some degree."
Unfortunately, the courts have not been consistent friends of fair use. Two years after the Campbell decision, for instance, Dr. Seuss Enterprises successfully convinced a federal district court to issue an injunction against The Cat NOT in the Hat!, an O.J.-oriented parody by "Dr. Juice." Splitting every hair in sight, the court ruled that the parody defense applied only when there was "a discernible direct comment on the original." And Dr. Juice's book, the court ruled, was lampooning the Simpson case, not The Cat in the Hat; Seuss' story merely provided a narrative framework. The U.S. Court of Appeals for the 9th Circuit agreed: "While Simpson is depicted 13 times in the Cat's distinctively scrunched and somewhat shabby red and white stove-pipe hat," it ruled, "the substance and content of The Cat in the Hat is not conjured up by the focus on the Brown-Goldman murders or the O.J. Simpson trial." Therefore, the book was bannable.
Nor is fair use consistently protected for the purpose of criticism. There is a long tradition of letting critics and scholars quote passages from books. There is much less precedent for quoting, say, a 30-second excerpt from a movie on a CD-ROM, or 10 seconds of a song in an online journal, partly because CD-ROMs and Web sites have not been around that long and partly because the courts seem to regard sounds and images as somehow different from text. The editors of one recent critical collection, The Many Lives of the Batman, discovered that they could not freely quote images from comic books, a tricky problem if one wants to make an argument about the placement of words or images within a panel or the relation of one panel to another. "If you can't quote what you're talking about," comments MIT's Jenkins, a contributor to the Batman anthology, "then at a certain point it becomes impossible to talk about it at all. You cut off certain ideas from being heard."
One of the most common sparks for a copyright fight is the practice of sampling, in which parts of older records are spliced and recycled in newer tunes. In 1991, for instance, the long-forgotten '70s pop star Gilbert O'Sullivan, discovering that rapper Biz Markie had appropriated three words from his song "Alone Again (Naturally)," successfully sued, not for a share of the royalties, but to suppress Biz Markie's record altogether.
These days the issue extends far beyond music. "We now live in a culture that is based on sampling," Jenkins argues, "with new means of poaching and redoctoring images. It's a new aesthetic." Where samizdat artists once had to make do with photocopiers and audio cassettes, they now can use videotapes, camcorders, Photoshop, digital film editing, recordable CDs, MP3 files, and the Internet. The result has been an explosion of amateur films, fiction, and music, all of which can be "published" for a minimal investment by putting them on the Web.
The most active amateurs are probably the members of various fan subcultures. I own, for example, a CD called Do It Again: The Kover Kontroversy Kontinues, a collection of songs composed by the British rock band the Kinks and performed by members of an Internet fan group, the Kinks Preservation Society. The contributors live everywhere from Holland to Hawaii to Brazil; some recorded straightforward remakes, while others reworked the songs in interesting ways–translating the lyrics into Portuguese, say, or adding a reggae rhythm, or splicing in a verse from the folk standard "Wayfaring Stranger." The performers never bothered to get the rights to the songs, figuring that wouldn't be necessary for a communal, noncommercial, low-circulation project. Legally speaking, that isn't necessarily so. Fortunately, the band doesn't seem to mind, recognizing the project as an informal tribute, not a commercial competitor. ("I personally gave Dave [Davies, the band's guitarist] a copy of the CD," reports Paul Wykes, who organized the project, "and he seemed thrilled by it.")
Not every copyright owner is so tolerant. Devotees of Star Trek, Star Wars, and the like have long produced their own fiction set in their favorite show's or movie's universe. In the last decade, this genre of writing has moved almost entirely out of the realm of small presses and zines and onto the Internet–where, being much more visible, it is also much more vulnerable to a copyright infringement challenge. This is a particular problem for fan filmmakers, a once-tiny group that has grown tremendously now that they can use relatively cheap camcorders, editing software, and computer animation instead of low-tech, silent Super 8 film–and now that their work can be viewed not just in living rooms and at science fiction conventions but on any computer screen hooked to the World Wide Web.
Thus, a Web surfer with the right software–most of it available for free–can download an astonishing array of homemade epics, varying widely in tone and quality:
- Star Wars: The Remake is a mimetic recreation of the first Star Wars film, compressed into 15 soundless minutes. Made in 1980, this specimen from an earlier generation of fan filmmaking will be utterly incoherent to viewers who have not seen the original movie, and will be rather impressive, in an odd way, to viewers who have.
- Kung Fu Kenobi's Big Adventure is a seven-and-a-half-minute short by one Evan Mather, with musical and visual allusions to everything from Mission: Impossible to A Charlie Brown Christmas. Performed by Star Wars action figures against a computer-generated animated background, this film is 50 times as inventive as The Phantom Menace and about 100 times as entertaining. My favorite scene: a recreation of the Jedi Council meeting in Menace, on a set made out of Legos. The Jedi knight played by Samuel Jackson rises and delivers a speech, sampled directly from a rather different film starring Jackson, Pulp Fiction: "Blessed is he who, in the name of charity and good will, shepherds the weak through the valley of darkness, for he is truly his brother's keeper. And I will strike down upon thee with great vengeance and furious anger–"Yoda interrupts: "Anger leads to hate."
Kung Fu Kenobi violates more copyrights than I could count. All the dialogue is taken directly from the soundtracks of other films. All the characters are lifted from other films, too. And I doubt Mather paid any licensing fees for the music. But it's an original work in itself, a funny movie that appeals even to ogres like me who don't care much for Star Wars. Mather has made several other pictures, each of them built, in different ways, on pop culture allusions; his latest is titled Buena Vista Fight Club.
- Star Wars: A Newfangled Hope is too big to put on the Web, but individual sites have screened it as a streaming video at pre-advertised times. It consists of the first Star Wars film in its entirety, with a new soundtrack dubbed over the old one. I haven't seen it, but according to the Mos Eisley Multiplex, an online guide to Star Wars fan cinema, it presents a world in which "Ben Kenobi's a hairdresser, Luke is one horny dope, Threpio endlessly sings showtunes and Darth has a major high-school crush on Leia." Redubbing–an honored comic technique ever since Woody Allen turned a Hong Kong spy flick into What's Up, Tiger Lily?, if not earlier–is a favorite method among fan directors. The most common target appears to be the Phantom Menace trailer, which exists online in countless guises.
- Macbeth Episode 5: MacDuff Strikes Back, an English project by some New Jersey high school students, is a 17-minute featurette reminiscent of the cult video Green Eggs and Hamlet. By any rational standard, it is a bad movie: It fuses Macbeth and the Star Wars films rather haphazardly, it's sometimes impossible to make out what the actors are saying, and the filmmakers didn't bother concealing the fact that they were shooting inside a school. But it would take a cold-hearted snob indeed not to appreciate this movie, or at least the spirit behind it. There's a message on the directors' Web site, a few sentences that sum up the spirit of the micro-moviemaking movement: "If you have a video camera lying around, and better yet some editing equipment (pretty cheap for computers nowadays), go experiment. Be your own director. Go Hollywood…use a skateboard for dolly shots, or a fishing rod for special effects. It's fun…"
That is, ultimately, the best argument for letting movies like this exist. It's not just that there's a sizable subculture that wants to watch them, and it's not just that sometimes a director like Evan Mather will make something so fun that even nonfans will enjoy the results. These movies are a first rung in the art of filmmaking, a chance for budding actors, writers, and directors to learn the rudiments of their craft. If those young auteurs want to adopt bits of the Star Wars mythos in their films, well, why shouldn't they? Star Wars is a part of our culture; it's a shared experience. And as Jenkins points out, "If something becomes an essential part of our culture, we have a right to draw on it and make stories about it….The core question is whether First Amendment protections include a right to participate in our culture." And not just to participate, but to criticize: A law that prohibits a Star Trek devotee's homages to his favorite show also restricts a Star Trek hater's right to parody the program's militarism, its view of sex roles, or its vision of the future.
There's a common-sense issue here, too. It is legal, after all, to write or improvise one's own Star Wars adventures using action figures; that is, indeed, what the toys are for. It is legal to record those playlets on film or video; this is known as "making a home movie." Shouldn't it be legal to show those home movies to anyone you please? Especially if it's all done on a non-profit, amateur basis, with no threat of direct, head-to-head competition with the official Star Wars pictures?
LucasFilm has taken an inconsistent approach to its online imitators. Some fan films–such as Kevin Rubio's Troops, a Cops-inspired parody I have not seen–have received Lucas' warm praise. Others, such as the Australian-made The Dark Redemption, have received letters from lawyers telling them to shut down their sites, or else.
If copyrights have grown more restrictive over the years, trademarks have been transformed even more radically. Once restricted to preventing customer confusion and protecting businesses' reputations, they are increasingly treated as property that no one may appropriate at all. In 1996, for example, the New York Racing Authority sued Jeness Cortez, a painter whose work often depicted the Saratoga Race Course and, thus, various Racing Authority trademarks.
In that case, the courts upheld Cortez's First Amendment rights. In other cases, artists have not been so lucky. In one infamous incident, the Rock and Roll Hall of Fame successfully sued photographer Chuck Gentile over a poster depicting its museum at dusk. The Hall of Fame not only alleged that the poster's title–"The Rock and Roll Hall of Fame and Museum in Cleveland"–violated one of its trademarks; it claimed that the building's design itself was a protected mark, thus in essence claiming a property right in the way part of the Cleveland skyline looks. The U.S. District Court for Northern Ohio sided with the museum and issued an injunction against Gentile's poster. The U.S. Court of Appeals for the 6th Circuit later tossed out the injunction, but the museum is still pushing its case in the district court.
In part, this shift reflects the increased popularity of "dilution" laws over the last several decades, culminating with the Federal Trademark Dilution Act of 1995. Under this rule, it is illegal to produce, say, Microsoft brand ramen noodles, even though that other Microsoft isn't in the noodle business, lest the lousiness of your pasta undermine the software company's reputation. When dealing with a famous mark, such as Microsoft, the dilution doctrine makes some sense: There is, after all, a reasonable argument that commercial misrepresentation is afoot. The courts have stretched the doctrine out of shape, however, applying it with little regard for whether the trademark in question is famous enough for "dilution" to be a possibility.
Furthermore, the very definition of trademark has been expanding for the last 10 years. Writing in the Yale Law Journal, Mark Lemley of the University of Texas notes that "companies have successfully claimed trademark rights in the décor of their restaurant, the `artistic style' in which they paint, the design of their golf course, the shape of their faucet handle, the diamond shape of a lollipop, the `unique' registration process of their toy fair, the shape of their mixer, and the design of their personal organizers." At some point, this stops being anything more than a way to club your competition.
The fiercest trademark battles, though, involve words, not images. As e-commerce sweeps the Internet, domain names–those ugly streams of letters that end with "org" or "net" or "com"–have become more valuable, and some companies have become upset over URLs that bear too great a resemblance to theirs. Many of the resulting conflicts don't even make it to court: The very threat of legal action is enough to cow the alleged transgressor into dropping its address, even if he'd probably prevail before a judge. "A lot of this is just bullying," comments Temple University's David Post. "A lot of these claims are totally spurious." But the simple cost of defending themselves is often too much for those on the receiving end of a legal threat. The plaintiffs in such suits tend to have more money and lawyers at their disposal.
Besides, given the vagaries of the justice system, the defendant just might lose. Late in 1999, a judge ordered etoy.com, a Web site run by some European performance artists, to take down its site or pay a fine of $10,000 a day. Its URL, the court ruled, violated the trademark held by the online retailer eToys.com–even though etoy had been around since 1994, well before eToys existed. If the older site is finally saved, its rescuer will probably be public opinion, not the common sense of a judge or jury. Two weeks after the injunction, eToys suggested that it may voluntarily withdraw its suit, its reputation battered by constant protest on the Internet. (At press time, the case is not yet closed.)
Now Congress has gotten involved, passing the infamous "cybersquatting" law in late 1999. Cybersquatting is the practice of registering someone else's trademark (or a famous person's name) as a domain name, usually in hopes of selling the domain to the trademark holder later. The new law prohibits such speculation, imposing fines of up to $100,000 and, in the process, undermining the adjudication process already hammered out by the members of the International Corporation for Assigned Names and Numbers, a.k.a. ICANN. Civil libertarians worry that it will also intrude on our right to use trademarks in real sites' addresses–that if I devote a site to criticizing Shell Oil and call it www.shelloil.org, or even www.shelloilstinks.org, I may be breaking the new law.
While it would be a good idea to repeal the cybersquatting and dilution laws, one could probably avoid even more trademark battles with more prosaic measures. Post suggests expanding the range of domain names: If eToys.com could have called itself eToys.toys, he argues, the problem might never have emerged in the first place. There is also, he adds, a case for adopting the so-called "English system," in which a lawsuit's loser pays the winner's legal costs. Such an arrangement poses some problems of its own, but it would clearly discourage frivolous, bullying suits.
For centuries, our popular myths have enshrined the "romantic" or "heroic" author, conjuring new books out of nothing but his solitary genius. This image is popular with nonwriters, because many of them do not know how writing is done, and it is popular with writers, because it flatters us. It is, however, untrue. Every book, film, and song in the world draws on an existing cultural commons. Creativity rarely, if ever, means inventing something out of nothing. It means taking the scraps and shards of culture that surround us and recombining them into something new.
When the government tells us we can't use those scraps without permission from Disney, Fox, or the Sherwood Anderson Trust, it constrains our creativity, our communications, and our art. It tells us that we cannot draw on pop songs the way we once drew on folk songs, or on TV comedy the way we once drew on vaudeville; it says we cannot pluck pieces from Star Wars the way George Lucas plucked pieces from foreign films and ancient legends. The consequences are staggering. Imagine what would have happened if, 100 years ago, it had been possible to copyright a blues riff. Jazz, rock, and country music simply could not have evolved if their constituent parts had been subject to the same restraints now borne by techno and hip hop.
Few would argue that artists shouldn't be able to make a living from their work, or that customer confusion is a good thing. But we've stood those ideas on their heads. Rather than promoting enterprise and speech, copyrights and trademarks often restrain them, turning intellectual property law into, in Jenkins' words, "protectionism for the culture industry."
Fortunately, the state simply isn't big enough to enforce every intellectual deed on the books. You can still find Alexander Thompson's Buffy transcripts on the Web, even though he's taken them down: Several fellow fans had already downloaded them and posted them to sites of their own. Copies of The Dark Redemption are still floating around–if the movie itself isn't online, people willing to sell you tapes are. Even The Cat NOT in the Hat! persists, not as a book but as a frequently forwarded e-mail. The overzealous enforcement of copyrights and trademarks may chill speech, but it won't kill it.
But the chilling is bad enough. Americans are not mere passive consumers, dully absorbing images invented in distant corporate laboratories. We hatch our own ideas and compose our own stories, drawing on pop culture without absorbing it blindly. We should look with disfavor on any law that tells us to shut up and get back on the couch.