Crossing the line on copyrights.

Photographer: Clemens Bilan/Getty Images

Spoilers: The Sincerest Form of Flattery

Stephen L. Carter is a Bloomberg View columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park” and “Back Channel,” and his nonfiction includes “Civility” and “Integrity.”
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During the runup to the release of the second “Star Wars” trilogy, fan sites were thick with snippets that ran more or less like this: “Tatooine67 was in a bar and heard these sfx guys talking about this scene were Yoda is sitting in front of a window and there’s other Jedis there too.”  From similarly vague clues, uberfans would assemble their best guesses about characters and plot. To the outsider, it was all pretty silly, but the filmmakers didn’t seem to mind. All the speculation just added to the hype.

That bit of cultural history comes to mind in the wake of HBO’s effort to get YouTube to take down videos by FrikiDoctor, also known as the “Spanish Spoiler,” who runs a channel that this season has disclosed details of “Game of Thrones” plot lines days before each episode aired. Nobody contests the right of fans to post plot spoilers after a program has aired, or to speculate about what might happen in next week’s episode. But FrikiDoctor, although he termed his videos “predictions,” had the details right. In other words, he must have had an inside source.

Earlier this month, HBO served notice of infringement under the Digital Millennium Copyright Act. YouTube removed the videos.  After an outcry, they went back up again. Now, for reasons not entirely clear, FrikiDoctor announced this week that he is done with predictions. Henceforth, he wrote, he will post “just chapter and teaser analyses, like every other fan channel.”

So the conflict seems to be over. But the question lingers:  Does it violate a copyright to disclose the plot in advance?

Let’s begin by going over some common ground.  A television program is copyrighted material. So is the screenplay.  Unsurprisingly in the Internet age, leaks of screenplays have become common. Web sites that post the screenplays often run into trouble.  But one can argue reasonably that merely linking to the offending site should not give rise to liability. The leak, after all, is news.

FrikiDoctor did not disclose the screenplay.  He did not show any copyrighted images. He might even argue that he was merely reporting the news. In this way he would get around Harper & Row v. The Nation, the Supreme Court’s 1985 decision on the copyright in the memoirs of former President Gerald R. Ford. There the justices ruled (roughly) that a for-profit publication violates the rights of a for-profit publisher when it prints detailed excerpts from a copyrighted book before it is published. The Court explained, however, that had The Nation simply reported the facts and borrowed only “isolated phrases,” the case might have been different.

Why does this matter? Suppose that a source disclosed to a Bloomberg columnist the resolution of the cliffhanger that ended the most recent season of “The Walking Dead.” To write about what happens next might not be very friendly, and would certainly break the implicit bond between critic and fan -- but it’s hard to see how it would violate the intellectual property rights of the creators.

On the other hand, suppose that the same columnist did not settle for breaking the suspense but rather described in detail the entire arc of the coming season. Assuming a plot of sufficient complexity and depth, at some point rights must attach. It’s hard to locate precisely the boundary between reporting and theft -- but that doesn’t mean the point doesn’t exist.

To be sure, we should preserve a space for genuinely creative works that enhance our enjoyment of the original. A good way to decide whether a work based on another should truly be called creative is to borrow Abigail Derecho’s term “archontic.”  Derecho, writing about Internet fan fiction, uses the word to describe a new creation that enlarges a source text without violating its boundaries.  “Rosencrantz and Guildenstern Are Dead” would be archontic in this sense. So would “The Wind Done Gone.”

In Derecho’s formulation, a text is surrounded by a “virtual archive,” the pieces of which might be borrowed by others. For example, the “Star Trek” virtual archive would include Kirk, Spock, McCoy, the Starship Enterprise, Klingons, Romulans, and so forth.  The originators of the series put the pieces together one way. A Trekker who creates fan fiction puts them together another. The Trekker’s creation then also becomes part of the virtual archive, while leaving the original intact.

The logic of Derecho’s argument is that an archontic text does not damage the underlying work, which retains all of its integrity and much of its power. If one thinks in terms of value, the market for the underlying work might even be enhanced: the more archontic texts “Harry Potter” or “The Hunger Games” generates, the greater the interest in the original. 

HBO would presumably respond that FrikiDoctor’s videos are not archontic in this sense. They are not fan fiction. They do not merely add to the archive.  They damage the market for the original text itself. And the text in this case is by far HBO’s most valuable product.

As an occasional creator of content, I am sympathetic to this argument. And I am skeptical that FrikiDoctor’s videos were creative in any interesting sense. But must the solution always be the nuclear option represented by the digital copyright act? The threat is tiny, and those interested in the videos are likely going to watch “Game of Thrones” anyway. So maybe if the problem recurs, HBO should take a page from Stephanie Meyer’s book. A few years back, Meyer, creator of the “Twilight” series, learned that an early draft of one of her novels had been posted online. She didn’t sue anybody. Instead, she wrote on fan sites, urging readers to avoid the unauthorized copy.  She even let them download a later draft of the same novel.

She still made her millions; and her fans loved her even more.

  1. The cleanest version of Derecho’s theory is in her essay in this volume. The word is borrowed from Jacques Derrida.

  2. As Derecho points out, the literature of the dispossessed has often been archontic: a limited space for creativity encourages one to write in ways that respond to other texts.

  3. HBO should, however, pursue the leakers themselves, who were presumably bound by contract to disclose no details.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Stephen L Carter at scarter01@bloomberg.net

To contact the editor responsible for this story:
Susan Warren at susanwarren@bloomberg.net