Available online at www.sciencedirect.com

Computers and Composition 27 (2010) 242–245

Book review

Jessica Reyman. The Rhetoric of Intellectual Property: CopyrightLaw and the Regulation of Digital Culture. Routledge, New York

(2010) 188 pp.

Clancy RatliffUniversity of Louisiana at Lafayette, United States

In the fall of 2003, I was at the University of Minnesota as a graduate student teaching a section of Rhetoric 1101.During that semester, one student wanted to write a research paper about downloading music (whether illegally orlegally, she didn’t specify). Given that intellectual property and copyright were among my research interests, I approvedthe topic but stressed to her that whatever her position on the matter, she would have to address opposing views and thatboth dominant sides of the debate (which is admittedly more complex than two sides) would have to be representedin her paper. She agreed, but later came to me and said that although she’d tried to find sources arguing in favorof downloading music, she hadn’t been able to find any. I had to explain to her that search terms determined, to agreat extent, what she would find, and that if she searched for piracy, she would find mostly sources arguing againstdownloading music. To find opposing or divergent views, I suggested, she would have to search for file sharing. Thestudent was able to locate sources and then write the paper without difficulty.

In 2005, around the time the MGM Studios v. Grokster case was decided, I was in Atlanta with a group of compositionteachers participating in an assessment of first-year writing for the Georgia Board of Regents. The students wroteone essay before their writing course and one essay after, for pre-testing and post-testing purposes. In both cases, thewriting prompts seemed to be designed in such a way that the students needed no prior study of the topic (argumentativeresponses to these kinds of prompts tend to be recitals of sorts, generally speaking). One of the writing prompts askedstudents to argue a position about downloading music. Although I didn’t keep a tally, it was hard not to notice that thevast majority of student papers were anti-downloading music, and for all the same reasons: downloading songs is nodifferent from stealing a CD from a store, and doing so takes money out of the hands of artists, whose talent we mustrecognize in the form of financial support. I wondered at the time if their everyday practices fell in line with this view.

I begin with these anecdotes because they are situations that Reyman’s book does an excellent job explaining.The Rhetoric of Intellectual Property offers a lucid analysis of why the music and movie industries’ arguments toexpand copyright and regulate certain technologies are more persuasive—to judges, justices, university administrators,college students, and the general public—than those of copyright activists who seek to keep peer-to-peer networksfree and legal; to curtail the expansion of copyright time limits and copy-protection technology; to ensure a plentiful,continually replenished public domain of content; and to preserve fair use rights for content currently under copyright.After reading Reyman’s book, I have a more solid understanding of the metaphors of “piracy” and “sharing,” and Iknow exactly why so few of the college students in Georgia were able to present an argument in favor of file sharing.

E-mail address: clancy@louisiana.edu.

8755-4615/$ – see front matterdoi:10.1016/j.compcom.2010.06.004

Book review / Computers and Composition 27 (2010) 242–245 243

Reyman’s book consists of one introductory chapter; one chapter explaining the theory and method she used forher study; one chapter presenting the history of copyright, which is especially useful for those new to the study ofcopyright law as well as the history of moral rights and the Berne Convention (pp. 52–53); one chapter analyzing thecontent industries’ argument or “the property stewardship narrative”; one chapter analyzing the arguments of copyrightactivists or “the cultural conservancy narrative”; a chapter showing these arguments at work in the MGM Studios v.Grokster case; a chapter showing the deployment of these arguments on college campuses; and a concluding chapterin which she describes what a new rhetoric of digital copyright needs in order to be meaningful and persuasive.

Reyman claims that the scholarly discussion about intellectual property has two main weaknesses. First, it takesfor granted that file-sharing technologies can be—and are—used for the purposes of producing content as well asconsuming it, without articulating explicitly the connections and implications “for writing, creativity, and productiononline” (p. 7). Second, it tends to center too myopically on classroom uses and practices, and too little on publicdiscourse about copyright and intellectual property. Reyman reviews the scholarly work about authorship and statesthat it falls along three lines of inquiry: authorship as a construct, which archeologically examines the historic formationof the author; digital authorship, which shows how the idea of authorship is called into question when considered inthe context of computing and online practices; and authorship “code,” which critiques corporate authorship and theuse of computer code to block access to content (e.g., digital rights management or DRM). Although Reyman brieflyengages her study’s implications for writing studies and pedagogy in the final chapter, she is primarily concerned withthe public discourse regarding file sharing, as found in legal briefs, the written opinions of the Supreme Court justicesin MGM Studios v. Grokster, and the public awareness campaigns launched by the Recording Industry Association ofAmerica (RIAA), the Motion Picture Association of America (MPAA), Creative Commons, and the Electronic FrontierFoundation (EFF).

One of the major contributions of The Rhetoric of Intellectual Property is its strength as an analysis of legal discourseand a model for a way to read legal discourse—a model that could potentially be applied to issues other than copyright.In chapter 2, Reyman defines the term narrative as she deploys it in her study. The use of the term comes from lawscholars Anthony G. Amsterdam and Jerome Bruner, and it involves the trajectory from a “steady state” of affairs thatis destabilized by an event or practice—after a deliberation about how to proceed—to either a return to the steadystate or a transformation to a new state, ending with a declaration that formally resolves the matter and serves as ablueprint for the new steady state or reaffirmation of the existing steady state. Also, narratives are, as Reyman helpfullypoints out, not only fictional stories but any account of experience. A court case, for example, always involves a set ofnarratives.

One reason the content industries’ argument—or the property stewardship narrative, as Reyman puts it—is sopowerful and persuasive is that it follows the narrative formula. Our steady state is to have copyright as a way to giveauthors and artists the incentive to create new works (a system based on print and analog culture). We ensure thatauthors and artists are compensated by paying official distributors (record companies, for example; Reyman refers tothese as “property stewards”) for recordings of this creative and intellectual work, who in turn pay the authors andartists. Developers of digital technologies create peer-to-peer networks, which enable us to get the same works withoutpaying. Procuring the works in this way is the same as stealing, according to copyright law, so we must reaffirm, andeven extend, copyright law to criminalize the use of these networks. This narrative has a simple plot, and its heroesare the property stewards and authors/artists; its villains are those who develop technology that enables copyrightinfringement and those who download copyrighted content without paying for it. The clarity and coherence of thenarrative are not the only reasons for its persuasiveness, however; Reyman shows the property stewardship narrative’sroots in John Locke’s philosophy, which holds that a person rightfully owns what s/he creates with his or her labor,and Judeo-Christian morality (“thou shalt not steal”). She also insightfully uses Foucault’s idea of order as constructedthrough discourse to show how embedded the property stewardship narrative is in our culture.

Reyman reveals the problems with the property stewardship narrative despite its successes. In the narrative, one isrepresented as either a producer or consumer of intellectual and creative work, not both, as we see in digital culture.Also, copyright is misrepresented: in the property stewardship narrative, its only purpose is to ensure that authors andartists (and copyright owners, who are not necessarily authors or artists) are paid for their work, when in fact copyrightlaw has more than one purpose. Another purpose is to ensure that the intellectual and creative work is owned onlyfor a limited period, so that after that period ends, the work becomes part of the public domain, which we need as acultural space to draw from to ensure the creation of new works. The property stewardship narrative also misrepresentsthe products it discusses. Most intellectual work is non-rivalrous, meaning that it cannot be “used up”; I can listen to

244 Book review / Computers and Composition 27 (2010) 242–245

a song, and you can listen to the same song, and my having “consumed” it does not take the experience away fromyou. However, in the property stewardship narrative, intellectual work is portrayed as rivalrous: it will go away if userscontinue to consume it without paying.

Reyman then turns to copyright activist rhetoric, which she terms the cultural conservancy narrative. (This storyis not as clear as that of the dominant narrative, but it does follow the formula somewhat.) Copyright law is in placeto create a balance between rewarding authors and artists and maintaining a public domain of content, not owned byany particular groups or individuals, most of which people can freely use: a commons. This is the steady state, whichincludes technological innovation, also encouraged as cultural progress. But the recording and movie industries disruptthis steady state by unbalancing copyright law so that it favors the copyright owners over the public by extending thetime limits of copyright and regulating technologies that benefit society. For the greater public good, the original balancebetween copyright owners and the public (the steady state) should be restored by deregulating digital technologies,even if some users engage in copyright infringement.

The student I taught at the University of Minnesota, and most of the students in Georgia, were not able to articulatethis narrative in their arguments about downloading music. Reyman’s critique of the cultural conservancy narrativeclearly demonstrates some reasons why this was the case. First and perhaps most obvious, the content industries havespent a great deal of money to transmit and repeat their message to the public. As Reyman points out, one can goto a movie theater and see a public service announcement presenting downloading as stealing. In contrast, the publicawareness campaigns from Creative Commons and the Electronic Frontier Foundation and the legal documents in MGMStudios v. Grokster are presented by and to only small special-interest groups. Moreover, the messages presented arescattershot: environmentalist analogies comparing the commons to the environment, both of which must be preserved;digital technologies as the tools of freedom; and appeals to feminist ethics of sharing and responsibility. And like theproperty metaphor, the sharing metaphor is also problematic. As Reyman argues:

The concept of sharing doesn’t communicate well enough the distinction between the ideas of facilitating theconsumption of entertainment products and of contributing to an information commons. . . The notion of thecommons appears as justification for reproducing others’ works without the responsibility for increased con-tributions, unlimited access without communal management, anonymity without a sense of responsibility, andindividual gain without interdependence. (pp. 92–93)

Indeed, the cultural conservancy narrative lacks the clarity, coherence, and cultural and moral force of the propertystewardship narrative. In the cultural conservancy narrative, there is no guarantee that within digital distribution systems,artists will receive adequate financial compensation. The Georgia students who attempted to defend file sharing wereonly able to gesture toward a collection of anecdotes (e.g., artists could make money through concert ticket sales andmerchandise). I believe Reyman’s assessment that the cultural conservancy narrative appears “at only dispersed pointsin fragmented form” (p. 76) is the reason for the relative ineffability of the argument in favor of peer-to-peer networks.

After her enlightening critique of commons rhetoric, Reyman moves to analyses of these narratives at work intwo situations: the MGM Studios v. Grokster Supreme Court case and the efforts to combat peer-to-peer file sharingon college campuses. In the former, she provides a surprising synthesis of what the property stewardship and thecultural conservancy narratives have in common. Both sides, for instance, made appeals based on the public good andsocial progress. MGM argued that creative production would slump as a result of the compromised financial incentive,which would negatively affect the public good and cultural enrichment. Grokster argued that new technologies andtheir facilitation of the exchange of creative work would enable the production of new creative works, thus providingthe public with more works of art and intellect. Both narratives rely on copyright law for their steady state, and bothnarratives contain implicit technological determinism: Grokster argued that peer-to-peer network technology will movesociety in a positive direction, and MGM argued that the same technology is dangerous for society, even using diseasemetaphors: peer-to-peer networks are “breeding grounds” for “viral distribution” (p. 102). Reyman’s application ofFoucault’s idea of order is insightful when she explains that both sides were obliged to situate their arguments in pastprecedents. What we perceive as “order” is constructed by discourse—“connections” between current case and pastruling or past practice do not simply exist, rather they are rhetorically constructed (p. 105). One can be convinced ofa connection (therefore it exists), or not convinced (therefore there is no connection; it does not exist). Grokster wasultimately unable to persuade the Supreme Court that their case was in accordance with Sony v. Universal Studios,which established the “Sony-Betamax rule” favoring technology developers, so the already-constructed “order” wasreaffirmed and not transformed.

Book review / Computers and Composition 27 (2010) 242–245 245

As a writing program administrator, I was particularly interested in Reyman’s examination of peer-to-peer file-sharing rhetoric on college campuses. I wondered how the content industry is transmitting their message on campuses.Do they distribute posters, flyers, or other swag at orientation? Do they set up tables in student union buildings like thecredit card companies? Are materials given to university administrators to pass out to students in first-year experienceclasses? Is the content industry sending blurbs to administrators, such as suggested language for the student code ofconduct? Do industry representatives ply administrators with gifts or meals at expensive restaurants in exchange fordelivering the message to students? I did not find answers to these specific questions, but what I found was disturbing,albeit unsurprising. Reyman reports campus information technology departments being warned of excessive bandwidthusage that would hinder the university network resources and of computer viruses that the files downloaded from peer-to-peer networks could potentially introduce (p. 120). The 2008 Higher Education Opportunity Act, which is tiedto student financial aid and other forms of funding for higher education, required universities to take measure toeducate their students about “the unauthorized distribution of copyrighted material” and “suggests that institutions usetechnology-based deterrents” (p. 117) to ensure that students do not download copyrighted files without permission orpayment. The content industries also yoked their argument to the ideals of a liberal arts education—one of the desiredoutcomes of which is the appreciation and valuing of art, music, literature, and other creative and intellectual work.

The Rhetoric of Intellectual Property ends with a direction for “a new rhetoric of copyright” that must fulfill fourcriteria: it must be democratic; user-based, not technology driven; action-oriented; and unified. For the first criterion,Reyman recommends grounding arguments not in current (expanded) copyright law, but in the early history of copyrightlaw, which granted copyright for a much shorter period of years. This recommendation reminds me of a “Founder’sCopyright”—one of the options in Creative Commons’ suite of licenses. This option declares that the owner will havecopyright for 14 years, with the option to renew for an additional 14, and then the work will cross into the publicdomain (Creative Commons also had a small sign bloggers could display on their sites with the exhoration, “CreateLike it’s 1790!”). For the second criterion, Reyman cautions against the current rhetoric of technological determinismand argues for a shift of focus to the users of technologies, who are often not only consumers but also producers ofcontent.

The third part of the book asks rhetors to highlight the “ethical actions” taken by Internet users who are “embracingtheir roles as contributors to digital culture and providing something of value to others” (p. 148). I believe this thirdrecommendation, while important, is more difficult to follow in practice than Reyman presents it here. Copyrightactivists, such as those affiliated with Creative Commons and the Electronic Frontier Foundation, face the challenge ofproving (even anecdotal evidence is insufficient according to the Ginsburg opinion in MGM Studios v. Grokster) thatartists need prior works in order to create their works, and could not have created them otherwise. Not only could theynot have created them otherwise, they could not have created them without using prior works in such a way that goesbeyond the parameters of Fair Use. For some forms of cultural production, like music and video mashups, machinima,fanfic, and hip-hop music, of course, copyright activists can make this claim convincingly. However, these particularforms still are not valued enough that most people recognize them as important contributions to culture, and I wouldhave liked to see that point made more explicitly. Perhaps copyright activists should also present clearer and morespecific cases arguing that the art that is respected also relies on the public domain in a way that goes beyond Fair Use.Lastly, in the fourth part of Reyman’s framework for a new rhetoric of copyright, she argues that the rhetoric fulfillingher first three criteria will need more widespread exposure, to be presented “in the classroom, at university forums, inonline spaces” (p. 149). Her study has inspired me to use my position within my university to do exactly that.