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Interesting article by Rebecca Tushnet in Law and Contemporary Problems, on fandom creation and its relation to copyright. I don't agree with everything she says - in particular, I think she overestimates both how far fair use can be stretched in actual practice, and fans' awareness that these kinds of issues actually create meaningful limits on behaviour instead of circumventable technical requirements.

My own experience has been that fans honestly believe their moral code to be congruent with the legal code - what we do is not only right, but also legal just because it's right - and they will not hear any evidence to the contrary. That's shown, for instance, in some of the "You're wrong, you must be wrong, and we will pretend you didn't cite any sources because you're so obviously wrong" comments on my article about Livejournal. It's also evident in the widely-used phrase "legal fansubs" from anime fandom. Think about what that phrase refers to and then check what the Copyright Act says about it sometime. The people who use that phrase aren't just using it as a code for "fansubs that can slip under the radar"; they honestly believe that it's a literally accurate description. However, Tushnet seems to be mostly writing about fandoms I'm less familiar with, such as Star Trek, and the climate may be different in some of those. The article is generally interesting as a sign of the times: even if, as she says, "Actual practice involves far more flying below the radar than it does a clear understanding on either side of what fans' fair use rights allow.", fandom isn't going to stay under the radar for much longer. Legal theorists are already paying attention and that will inevitably trickle into practice. Article spotted in James Grimmelmann's Web log. See also Jessica Litman's commentary, in which she decries the tendancy to assume that all use of creative work has to be licensed or covered by an explicit exception, and is prohibited by default. I don't like that much either, and I agree that it's not how the legislation ought to be interpreted - but I also think (as Litman, too, seems to acknowledge) that it is the way the courts are interpreting the legislation at the moment, and fans aren't going to be able to change that assumption just by believing that it is wrong.